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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 29, 2022
Bird Global, Inc.
(Exact name of Registrant as Specified in Its Charter)
Delaware 001-41019 86-3723155
(State or Other Jurisdiction
of Incorporation)
 
(Commission
File Number)
 
(IRS Employer
Identification No.)

392 NE 191st Street #20388
Miami, Florida 33179
(Address of principal executive offices and zip code)
(866) 205-2442
(Registrant’s telephone number, including area code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:



Title of each class 
Trading
Symbol(s)
 
Name of each exchange
on which registered
Class A common stock, par value $0.0001 per share BRDS The New York Stock Exchange
Warrants, each whole warrant exercisable to purchase one share of Class A common stock at an exercise price of $11.50 per share BRDS WS The New York Stock Exchange
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.



Item 1.01. Entry into a Material Definitive Agreement.

Share Purchase Agreement

On December 30, 2022 (the “Closing Date”) and effective as of January 3, 2023 (the “Acquisition Closing Date”), Bird Global, Inc. (the “Company”) entered into a share purchase agreement (the “Share Purchase Agreement”) with 1393631 B.C. Unlimited Liability Company, a British Columbia ULC and indirect wholly owned subsidiary of the Company (the “Purchaser”), Bird Canada Inc. (“Bird Canada”), certain sellers party thereto (the “BC Sellers”) and John Bitove, as seller’s representative. Pursuant to the Share Purchase Agreement, among other things, the Purchaser acquired from the BC Sellers 100% of the issued and outstanding shares of Bird Canada in exchange for the issuance by the Company to the BC Sellers of an aggregate principal amount of $26,977,675 of its 12.0% Convertible Senior Secured Notes due 2027 (the “Notes”), 18,204,365 shares of the Company’s Class A common stock, par value $0.0001 per share (the “Class A Common Stock”), and a nominal amount of cash consideration (the “Acquisition”).

The Share Purchase Agreement contains customary representations and warranties related to Bird Canada, the BC Sellers, the Purchaser and the Company. The Share Purchase Agreement contains customary indemnification provisions by the Purchaser, the Company and the BC Sellers with respect to breaches of representations and warranties and the performance of post-closing covenants. Indemnification claims will survive the closing for (i) with respect to breaches of general representations and warranties, 18 months, (ii) with respect to breaches of fundamental representations and warrants, 24 months, and (iii) with respect to post-closing covenants, in accordance with their terms or until fully performed.

The foregoing description of the Share Purchase Agreement is not complete and is qualified in its entirety by reference to the full text of the Share Purchase Agreement, a copy of which is filed as Exhibit 2.1 to this Current Report and is incorporated by reference herein. The Share Purchase Agreement is included to provide security holders with information regarding its terms. It is not intended to provide any other factual information about the Company, the Purchaser, Bird Canada or the BC Sellers. In particular, the assertions embodied in representations and warranties by the Company, the Purchaser, Bird Canada or the BC Sellers contained in the Share Purchase Agreement are subject to important qualifications and limitations agreed to by the parties in connection with negotiating such agreement, including being qualified by confidential information in the disclosure schedules provided by the parties in connection with the execution of the Share Purchase Agreement, and are subject to standards of materiality applicable to the contractive parties that may differ from those applicable to security holders. The confidential disclosures contain information that modifies, qualifies and creates exceptions to the representations and warranties set forth in the Share Purchase Agreement. Moreover, certain representations and warranties in the Share Purchase Agreement were used for the purpose of allocating risk between the parties, rather than establishing matters as facts. Accordingly, security holders should not rely on the representations and warranties in the Share Purchase Agreement as characterizations of the actual state of facts about the Company, the Purchaser, Bird Canada or the BC Sellers. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Share Purchase Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures.

Note Purchase Agreement

On the Closing Date, the Company issued and sold an aggregate principal amount of $30.0 million of Notes. On January 3, 2022 (the “Acquisition Closing Date”), the Company issued and sold an additional aggregate principal amount of $26,977,675 of Notes in exchange for the Acquisition . The Notes were issued and sold in a private placement to certain “accredited investors” conducted pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”). The terms of the Notes are governed by a note purchase agreement, dated as of December 30, 2022 (the “Note Purchase Agreement”), by and among the Company, as issuer, the several purchasers from time to time party thereto (collectively, the “Note Purchasers”) and U.S. Bank Trust Company, National Association, as collateral agent (the “Collateral Agent”). The Company used a portion of the proceeds from the Notes issued and sold on the Closing Date to repay the $4.0 million subordinated loan made by Bird Canada under the Existing Loan Agreement (as defined below), and intends to use the remaining proceeds from such Notes for general corporate purposes.

Interest and Maturity

Interest on the Notes is payable semi-annually in cash or, at the Company’s option, in kind, in arrears on June 30 and December 30 of each year, commencing on June 30, 2023. The Notes will mature on December 30, 2027.

Ranking and Security

The Notes are senior secured obligations of the Company and are guaranteed on a senior secured basis by (i) Bird US Opco, LLC, a wholly owned consolidated special purpose vehicle entity of the Company (“Bird Opco”), pursuant to



that certain guarantee, dated as of the Closing Date (the “Opco Guarantee”), by Bird Opco in favor of the Collateral Agent and the Note Purchasers, (ii) Bird US Holdco, LLC, an indirect subsidiary of the Company (“Bird Holdco”), pursuant to that certain guarantee, dated as of the Closing Date (the “Holdco Guarantee”), by Bird Holdco in favor of the Collateral Agent and the Note Purchasers, (iii) Bird Rides International Holding, Inc., an indirect subsidiary of the Company (“Bird Rides International”), pursuant to that certain guarantee, dated as of the Closing Date (the “Bird Rides International Guarantee”), by Bird Rides International in favor of the Collateral Agent and the Note Purchasers, and (iv) Bird Canada and the Purchaser, pursuant to that certain guarantee, dated as of the Closing Date (the “Bird Canada Guarantee”), by Bird Canada and the Purchaser in favor of the Collateral Agent and the Note Purchasers. The Notes are guaranteed on a senior unsecured basis by Bird Rides, Inc., a direct wholly owned subsidiary of the Company (“Bird Rides”), pursuant to that certain guarantee, dated as of the Closing Date (the “Bird Rides Guarantee”), by Bird Rides in favor of the Collateral Agent and the Note Purchasers. The obligations of the Notes are secured, pursuant to the Note Purchase Agreement, the Opco Guarantee, the Holdco Guarantee and the Bird Rides International Guarantee, as well as pursuant to (x) that certain pledge agreement, dated as of the Closing Date (the “Canadian Pledge Agreement”), among the Company and the Collateral Agent and (y) that certain pledge and collateral agreement, dated as of the Closing Date (the “Canadian Collateral Agreement”), among Bird Canada, the Purchaser and the Collateral Agent, (i) on a first-priority basis by all of the equity of Bird Rides, Bird Canada and the Purchaser, as well as substantially all assets of Bird Canada and the Purchaser and (ii) on a second-priority basis, subordinated to the secured obligations of the Amended Loan Agreement (as defined below), by all of the equity of Bird Opco, substantially all assets of Bird Holdco and Bird Opco and 65% of the equity of Bird Rides Europe B.V., an indirect subsidiary of the Company.

Conversions

The Note Purchasers are entitled to convert the Notes into shares of the Company’s Class A common stock, par value $0.0001 per share (the “Class A Common Stock”), at any time at a conversion rate of 3,473.4283 shares of Class A Common Stock per $1,000 principal amount of the Notes, equivalent to a conversion price of approximately $0.2879 per share, subject to specified anti-dilution adjustments, including adjustments for the Company’s issuance of Class A Common Stock below the conversion price. In addition, following certain corporate events that occur prior to the maturity date, the Company will, in certain circumstances, increase the conversion rate for a holder who elects to convert its Notes in connection with such corporate event up to a maximum of 710.8696 shares per $1,000 principal amount of Notes. In certain circumstances, conversion will be limited unless the Company obtains stockholder approval to issue such shares.

Optional Redemption Provisions and Repurchase Rights

At any time prior to December 30, 2024, upon not less than five nor more than 60 days’ notice, the Notes will be redeemable at the Company’s option, in whole at any time or in part from time to time, at a price equal to 100.0% of the principal amount of the Notes redeemed, plus a make-whole premium as set forth in the Note Purchase Agreement, plus accrued and unpaid interest, if any, to, but excluding, the applicable redemption date. Beginning December 30, 2024, the Company may redeem the Notes, at its option, in whole at any time or in part from time to time, subject to the payment of a redemption price together with accrued and unpaid interest, if any, to, but excluding, the applicable redemption date. The redemption price includes a call premium that varies (from 7.5% to 2.5%) depending on the year of redemption.

The Company will be required to offer to repurchase Notes from Note Purchasers at the applicable optional redemption price discussed above, together with accrued and unpaid interest, if any, to, but excluding, the applicable repurchase date, in certain circumstances, including following a significant asset disposition or a change of control.

Covenants and Events of Default

The Note Purchase Agreement contains covenants that limit the Company’s (and its subsidiaries’) ability to, among other things: (i) incur additional debt; (ii) pay dividends, redeem stock or make other distributions; (iii) make other restricted payments or investments; (iv) create liens on assets; (v) transfer or sell assets; (vi) engage in mergers or consolidations; (vii) engage in certain transactions with affiliates; (viii) incur indebtedness that is junior in priority to the Amended Loan Agreement and senior to the Note Purchase Agreement; and (ix) enter into certain hedging arrangements. Most of these restrictions are subject to certain minimum thresholds and exceptions. The Note Purchase Agreement also contains events of default (subject, in certain cases, to specified cure periods), after which the Notes be due and payable immediately at the applicable redemption price, including defaults related to payment compliance, covenant compliance, material adverse changes, bankruptcy and insolvency proceedings, cross-defaults to certain other agreements, judgments against the Company, change of control events and lien priority. Upon the occurrence and during the continuance of an event of default, interest will accrue at 18% per annum.

The foregoing descriptions of the Note Purchase Agreement, the Opco Guarantee, the Holdco Guarantee, the Bird Rides International Guarantee, the Bird Canada Guarantee, the Bird Rides Guarantee, the Canadian Pledge Agreement and the Canadian Collateral Agreement are not complete and are qualified in their entirety by reference to the full text of such



agreements, copies of which are filed as Exhibits 4.1, 10.1, 10.2, 10.3, 10.4, 10.5, 10.6 and 10.7, respectively, to this Current Report on Form 8-K (this “Current Report”) and are incorporated by reference herein.

Voting Agreement

On the Closing Date and effective as of the closing of the Acquisition, the Company entered into a voting agreement (the “Voting Agreement”) with certain of the Note Purchasers (the “Investors”) and Travis VanderZanden (the “Founder Stockholder”). Pursuant to the Voting Agreement, among other things: (a) for so long as the Investors and their affiliates collectively continue to beneficially own, directly or indirectly, Notes and/or shares of Class A Common Stock representing 9,860,916 shares of Class A Common Stock (assuming conversion of the Notes into shares of Class A Common Stock in accordance with their terms and subject to appropriate adjustment for any stock splits, stock dividends, combinations, recapitalizations and the like), the Company and the Founder Stockholder agreed to take all actions as necessary and within their control to ensure that the board of directors of the Company (the “Board”) consist of no more than nine directors; and (b) the Investors holding a majority of the voting rights then held by the Investors have the right to designate for election to the Board—and the Company and the Founder Stockholder will take all actions as necessary and within their control to ensure they are elected as directors—the following numbers of individuals (the “Investor Designees”) corresponding to the respective numbers of shares of Class A Common Stock collectively directly or indirectly beneficially owned by the Investors and their affiliates (assuming conversion of all of the Notes into shares of Class A Common Stock and subject to appropriate adjustment for any stock splits, stock dividends, combinations, recapitalizations and the like): (i) greater than or equal to 49,304,578: five Investor Designees; (ii) greater than or equal to 39,443,662 but less than 49,304,578: four Investor Designees; (iii) greater than or equal to 29,582,747 but less than 39,443,662: three Investor Designees; (iv) greater than or equal to 19,721,831 but less than 29,582,747: two Investor Designees; and (v) greater than or equal to 9,860,916 but less than 19,721,831: one Investor Designee. In the event the Founder Stockholder ceases to beneficially own, directly or indirectly, a number of shares of voting stock of the Company representing a majority of the voting power of all of the then-issued and outstanding shares of voting stock of the Company, the Founder Stockholder will only be obligated to take all actions as reasonably necessary and within his control with respect to the size of the Board and the nomination and election of the Investor Designees described above.

In addition, under the Voting Agreement, the Founder Stockholder agreed that he will voluntarily convert (in accordance with the terms of the Company’s Amended and Restated Certificate of Incorporation) into Class A Common Stock all of the shares of the Company’s Class X common stock, par value $0.0001 per share, that as of such time he beneficially owns, directly or indirectly, upon the conversion of all or a portion of the Notes into Class A Common Stock in accordance with their terms and, pursuant to which, immediately following such conversion, the Investors collectively beneficially own, directly or indirectly (but excluding from such calculation any shares of Class A Common Stock issuable in respect of Notes that have not been converted as of such time), at least 88,960,960 shares of Class A Common Stock, subject to appropriate adjustment for any stock splits, stock dividends, combinations, recapitalizations and the like.

The Voting Agreement will terminate upon the earlier to occur of (a) the date on which the Investors and their affiliates cease to beneficially own, directly or indirectly, 9,860,916 shares of Class A Common Stock (assuming conversion of the Notes into shares of Class A Common Stock in accordance with their terms and subject to appropriate adjustment for any stock splits, stock dividends, combinations, recapitalizations and the like) and (b) mutual written agreement among the parties to the Voting Agreement.

The foregoing description of the Voting Agreement is not complete and is qualified in its entirety by reference to the full text of the Voting Agreement, a copy of which is filed as Exhibit 10.8 to this Current Report and is incorporated by reference herein.

Amendment No. 8 to Loan and Security Agreement

On the Closing Date, Bird Opco entered into Amendment No. 8 (“Amendment No. 8”) to that certain Loan and Security Agreement, dated as of April 27, 2021 (as amended from time to time prior to the Closing Date, the “Existing Loan Agreement” and as further amended by Amendment No. 8, the “Amended Loan Agreement”), with certain funds advised or managed by Apollo Capital Management, L.P. as lenders, and MidCap Financial Trust, as administrative agent (the “Administrative Agent”). Amendment No. 8, among other things, (a) removes provisions relating to the subordinated loans made by Bird Canada thereunder, (b) extends the maturity of the Amended Loan Agreement to January 13, 2025, (c) amends the monthly amortization payment amounts, (d) removes provisions relating to the quarterly revenue-based amortization payments and (e) releases the liens on substantially all of the assets of Bird Rides that secured Bird Ride’s existing guaranty of all outstanding loans under the Amended Loan Agreement.

On the Closing Date, Bird Opco entered into Amendment No. 4 (“Amendment No. 4”) to the Master Scooter Operating Lease and Servicing Agreement, dated as of April 27, 2021 (as amended from time to time period to the Amendment Effective Date, the “Existing Scooter Lease”), with Bird Rides. On the Closing Date, Amendment No. 4,



among other things, (a) eliminates the supplemental portion of lease payments tied to revenue generation by vehicles on lease by Bird Opco to Bird Rides and (b) amends certain restrictive covenants.

In connection with Amendment No. 8, Bird Rides International entered into that certain Third Amended and Restated EMEA Guaranty and Pledge Agreement (the “Amended EMEA Guaranty”), dated as of the Closing Date, to amend and restate the Second Amended and Restated EMEA Guaranty and Pledge Agreement, dated as of October 7, 2022 (the “Existing EMEA Guaranty”), to, among other things, provide that the secured guaranty provided pursuant to the Existing EMEA Guaranty shall be released upon the satisfaction of certain prepayment and liquidity-based conditions.

The foregoing descriptions of Amendment No. 8, Amendment No. 4 and the Amended EMEA Guaranty are not complete and are qualified in their entirety by reference to the full text of such agreements, copies of which are filed as Exhibits 10.9, 10.10 and 10.11, respectively, to this Current Report and are incorporated by reference herein.

Item 2.01. Completion of Acquisition or Disposition of Assets.

The information included, or incorporated by reference, in Item 1.01 of this Current Report is incorporated by reference into this Item 2.01 of this Current Report.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant

The information included, or incorporated by reference, in Item 1.01 of this Current Report is incorporated by reference into this Item 2.03 of this Current Report.

Item 3.02. Unregistered Sales of Equity Securities.

The information set forth in Item 1.01 above and the information set forth below in Item 3.03 below of this Current Report is incorporated by reference into this Item 3.02.

As described in Item 1.01 of this Current Report, (i) on the Closing Date, the Company offered and sold $30.0 million aggregate principal amount of Notes to the Investors pursuant to the Note Purchase Agreement, (ii) on the Acquisition Closing Date, the Company issued $26,977,675 million aggregate principal amount of Notes to the Investors pursuant to the Share Purchase Agreement and Note Purchase Agreement, (iii) on the Acquisition Closing Date, the Company issued 18,204,365 shares to certain BC Sellers pursuant to the Share Purchase Agreement (such securities described in clauses (i) through (iii), together with the shares of Class A Common Stock underlying the Notes, the “Securities”), in each case, in a private placement in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act. Certain options to purchase capital stock of Bird Canada were assumed by the Company and converted into new options to purchase Class A Common Stock of the Company.

As described in Item 3.03, on the Acquisition Closing Date the Company issued the Preferred Share to a representative of the Investors.

None of the Securities or the Preferred Share have been or will be registered under the Securities Act or may be offered or sold in the United States absent registration or an applicable exemption from registration requirements. The Company does not intend to file a shelf registration statement for the resale of the Securities or the Preferred Share. This filing does not constitute an offer to sell or the solicitation of an offer to buy any securities.

Item 3.03. Material Modification to Rights of Security Holders.

On the Closing Date, the Company filed a certificate of designation (the “Certificate of Designation”) with the Secretary of State of the State of Delaware establishing the rights, preferences, privileges, qualifications, restrictions and limitations of a series of its preferred stock designated as the Series A Preferred Stock, par value $0.0001 per share (the “Series A Preferred Stock”), with a liquidation preference of $0.0001 per share. On the Acquisition Closing Date, the Company issued one share (the “Preferred Share”) of Series A Preferred Stock to Obelysk Transport L.P., a shareholder of Bird Canada prior to the Acquisition, as a representative of the Investors (including its permitted transferees, the “Preferred Holder”). The Certificate of Designation became effective on the Acquisition Closing Date.

The Preferred Holder is not entitled to vote on any matter on which stockholders of the Company generally are entitled to vote, to receive any dividends on the Series A Preferred Stock, to convert the Preferred Share into any other security of the Company or, subject to certain exceptions, transfer the Preferred Share to any other holder. The Company may redeem the Preferred Share, at its option, for the par value thereof, (i) on or after February 15, 2023 or (ii) upon a breach of certain transfer restrictions.



So long as the Preferred Share remains outstanding, the Preferred Holder will be entitled to nominate five directors for election to the Board in connection with any vote (whether at a meeting or by written consent) of the stockholders of the Company for the election of directors, and the vote of the Preferred Holder will be the only vote required to elect such nominee to the Board (such directors, in such capacity, the “Series A Directors”). So long as the Preferred Share remains outstanding, vacancies on the Board resulting from the death, resignation, retirement, disqualification or removal of a Series A Director will be filled only by the affirmative vote of the Preferred Holder (and not pursuant to Section 5(A)(2) of the Company’s certificate of incorporation).

In the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Company, after payment or provision for payment of the debts and other liabilities of the Company, the Preferred Holder will be entitled to receive, out of the assets of the Company or proceeds thereof available for distribution to stockholders of the Company, before any distribution of such assets or proceeds is made to or set aside for the holders of Common Stock and any other stock of the Company ranking junior to the Series A Preferred Stock as to such distribution, payment in full in an amount equal to $0.0001 per share.

The foregoing descriptions of the Series A Preferred Stock and the Certificate of Designation are not complete and are qualified in their entirety by reference to the full text of the Certificate of Designation, a copy of which is filed as Exhibit 3.1 to this Current Report is incorporated by reference herein.

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Director and Officer Appointments

On December 29, 2022, the Board appointed each of Antonio Occhionero, Kevin Lowell Talbot and John Bitove to serve on the Board, effective on the Acquisition Closing Date (collectively, the “New Directors”). The New Directors were nominated for election to the Board by the holders of the Series Preferred Stock, as described in Item 3.03 of this Current Report. Messrs. Occhionero and Talbot will serve as Class I directors, with a term expiring at the Company’s annual meeting of stockholders to be held in 2025, and Mr. Bitove will serve as a Class II director, with a term expiring at the Company’s annual meeting of stockholders to be held in in 2023, in each case, until their respective successors are duly elected and qualified or until their earlier death, disqualification, resignation or removal. The New Directors are eligible to participate in the Company’s Non-Employee Director Compensation Program as described under the heading “Director Compensation” in the Company’s definitive proxy statement on Schedule 14A, filed with the Securities and Exchange Commission on April 26, 2022. Each of the New Directors has entered into the Company’s standard indemnification agreement for directors and officers.

On December 29, 2022, the Board appointed Michael Washinushi as the Company’s Chief Financial Officer to succeed Ben Lu, and Stewart Lyons as President to succeed Shane Torchiana, in each case, effective on the Acquisition Closing Date. As previously disclosed in a Current Report on Form 8-K filed by the Company on December 20, 2022, Mr. Torchiana will continue to serve as the Company’s Chief Executive Officer.

Mr. Washinushi, age 54, served as the Chief Financial Officer of FreshBooks, a technology company serving small business owners with a cloud accounting solution from September 2015 until September 2022. Mr. Washinushi was responsible for the financial, planning & analysis, accounting, government relations and legal functions of FreshBooks. Mr. Washinushi has served on the board of directors of Vertical Scope Holdings Inc. (FORA: TSX) since June 2021. Mr. Washinushi has a BA from York University.

Mr. Lyons, age 49, served as the Chief Executive Officer and Founder of Bird Canada, an affiliate of the Company following the transactions described in Item 1.01 of this Current Report, from July 2019 until January 3, 2023. In connection with that position, Mr. Lyons was responsible for launching a micromobility business in Canada. Prior to that, from April 2017 until June 2019, Mr. Lyons served as Senior Vice President of Emerging Business at SiriusXM Radio, focused on growing its Automatic Labs division, a software and hardware developer in the connected vehicle space. Mr. Lyons previously served on the board of directors of Avanta Logixx (XX.V: TSXV) from September 2018 until March 2022, and currently serves as a director on the boards of the Financial Regulatory Authority of Ontario and Borrowell Inc., each a private company. Mr. Lyons has an MBA from the University of Toronto and an LLB from Osgoode Hall Law School.

Compensation Letter Agreements

On December 29, 2022, in connection with their respective appointments, the Board approved entering into an Employment Letter Agreement (the “Letter Agreements”) with each of Messrs. Lyons and Washinushi (the “executives”). The material terms of the Letter Agreements are described below.



Under the Letter Agreements, each executive is entitled to receive an annual base salary of $682,000 CAD, pro-rated for any partial year of employment. In addition, during calendar years 2023 and 2024, the executives are eligible to earn annual and quarterly cash performance bonuses (each, a “performance bonus”) based on the achievement of adjusted EBITDA, free cash flow and net revenue goals. The maximum potential bonus opportunity for Messrs. Lyons and Washinushi for a single calendar year is equal to $550,400 CAD (for each of 2023 and 2024). In addition, Mr. Washinushi is entitled to receive a $100,000 CAD signing bonus, which must be repaid, in whole or in part, in connection with a termination for “cause” or without “good reason” (as defined in the applicable Letter Agreement) prior to the second anniversary of his employment start date.

Pursuant to the Letter Agreements, the executives will be granted one or more awards of restricted stock units (“RSUs”) covering shares of Class A Common Stock under the Company’s 2021 Incentive Award Plan or an employment inducement plan, as determined by the Board in its sole discretion (in any case, the “Plan”). The material terms and conditions of such awards are described below.

In addition, under the Letter Agreements, if an executive experiences a termination of employment without “cause” or by the executive for “good reason” (each, as defined in the applicable Letter Agreement), then the executive will receive:

a cash amount equal to 12 months of his annual base salary then in effect, payable in substantially equal installments over the 12-month period following the termination date;

a cash amount equal to any performance bonus that has been earned, but remains unpaid, as of the termination date;

continued participation in the Company’s benefit plans following the termination date for the minimum period required pursuant to applicable Canadian law;

all time-vesting equity awards then held by the executive that will become vested on an accelerated basis as of the termination date with respect to the number of shares underlying the award that would have vested during the 24-month period following the termination date (had he remained employed during such period, and calculated as though the award vests on a monthly basis from the applicable vesting commencement date), and will vest in full if the termination occurs during the 24-month period following a Change in Control; and

any additional payments and benefits as may be required under applicable Canadian law.

The severance payments and benefits described above will be conditioned upon the executive’s timely execution and non-revocation of the Company’s standard general release of all claims in a form prescribed by the Company.

Pursuant to the Letter Agreements, each executive will be granted an award of RSUs covering shares of Class A Common Stock (the “RSU Awards”) under the 2021 Plan. Each RSU Award will vest as to 1/12 of the RSUs on March 1, 2023 and with respect to 1/12 of the RSUs on each of the first 11 quarterly anniversaries thereafter, subject to the applicable executive’s continued employment through the applicable vesting date.

In addition, pursuant to the Letter Agreements, each of Messrs. Lyons and Washinushi is eligible to receive two additional awards of RSUs, covering up to 1,500,000 shares of Class A Common Stock (the “Performance-Vesting RSUs”). The Performance-Vesting RSUs will be granted to the executives following the attainment of applicable stock price goals at any time during the Performance Period (as defined in the applicable Letter Agreement), as set forth in the following table. Once granted, the Performance-Vesting RSUs will vest as to 1/6 of the total RSUs subject to the applicable tranche on each quarterly anniversary of the applicable grant date, subject to the applicable executive’s continued employment through the applicable vesting date.
.
Vesting TranchePrice Per Share GoalNumber of Granted Performance-Vesting RSUs
First Vesting Tranche$2.50 USD1,000,000.00
Second Vesting Tranche$5.00 USD500,000.00

The RSU Award and Performance-Vesting RSUs are subject to accelerated vesting provisions in connection with certain events, as described above.



The foregoing description of the Letter Agreement is not complete and are qualified in their entirety by reference to the full text of the such agreement, a copy of which is filed as Exhibit 10.12 to this Current Report and is incorporated by reference herein.

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

The information included, or incorporated by reference, in Item 3.03 of this Current Report is incorporated by reference into this Item 5.03 of this Current Report.

Item 5.07. Submission of Matters to a Vote of Security Holders.

On December 30, 2022, Travis VanderZanden, as holder of a majority of the voting power of the Company’s common stock, approved by written consent the transactions contemplated by the Share Purchase Agreement, the Note Purchase Agreement and the Voting Agreement as described above. The information included, or incorporated by reference, in Item 1.01 of this Current Report is incorporated by reference into this Item 5.07 of this Current Report.

Item 8.01. Other Events.

On January 3, 2023, the Company issued a press release announcing the consummation of the Acquisition. A copy of the press release is attached as Exhibit 99.1 to this Current Report.




Item 9.01 Financial Statements and Exhibits.

To the extent required, the Company will provide the financial statements required to be filed by Item 9.01(a) and (b) of Form 8-K by amendment to this Current Report no later than the 71st day after the required filing date for the disclosure in Item 2.01 of this Current Report.

(d) Exhibits

Exhibit
No.
 Description
 
104 Cover page Interactive Data File (embedded within Inline XBRL document)

* Portions of this exhibit have been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K.









SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
  Bird Global, Inc. 
Date: January 3, 2023  By: /s/ Michael Washinushi 
  Name: Michael Washinushi 
  Title: Chief Financial Officer 

EXECUTION VERSION i US-DOCS\137120358.19 CAN_DMS: \149532846\17 SHARE PURCHASE AGREEMENT by and among 1393631 B.C. UNLIMITED LIABILITY COMPANY, BIRD GLOBAL, INC., BIRD CANADA INC., MKB PARTNERS FUND II, LIMITED PARTNERSHIP, MKB PARTNERS FUND II INTERNATIONAL, LIMITED PARTNERSHIP RELAY VENTURES FUND III L.P., RELAY VENTURES PARALLEL FUND III L.P., ALATE I LP, OBELYSK TRANSPORT L.P., 2136305 ONTARIO INC., JOHN BITOVE, STEWART LYONS, JJ BITOVE, AUSTIN SPADEMAN, RYAN LAUSMAN AND THE SELLERS’ REPRESENTATIVE NAMED HEREIN Dated as of December 30, 2022


 
ii US-DOCS\137120358.19 CAN_DMS: \149532846\17 CONTENTS Page ARTICLE I DEFINITIONS ............................................................................................................2 1.1 Defined Terms .........................................................................................................2 1.2 Other Definitional and Interpretive Matters ..........................................................14 ARTICLE II PURCHASE AND SALE; CLOSING .....................................................................16 2.1 Purchase and Sale of the Company Shares ............................................................16 2.2 Closing ...................................................................................................................16 2.3 Estimated Closing Statement .................................................................................16 2.4 Closing Payments ..................................................................................................16 2.5 Closing Consideration Adjustment ........................................................................16 2.6 Withholding ...........................................................................................................18 2.7 Treatment of Company Options. ............................................................................18 ARTICLE III CLOSING DELIVERIES .......................................................................................19 3.1 Deliveries by the Company and the Sellers ...........................................................19 3.2 Deliveries by the Purchaser ...................................................................................20 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE SELLERS ......................20 4.1 Organization; Good Standing; Qualification .........................................................20 4.2 Corporate Authority; Approval ..............................................................................21 4.3 Ownership of Company Shares .............................................................................21 4.4 Governmental Filings; No Violations; Certain Contracts ......................................21 4.5 Litigation ................................................................................................................22 4.6 Investment Intent ...................................................................................................22 4.7 Brokers and Finders ...............................................................................................22 4.8 Residence ...............................................................................................................22 ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY ....................23 5.1 Organization; Good Standing; Qualification .........................................................23 5.2 Capital Structure ....................................................................................................23 5.3 Corporate Authority; Approval ..............................................................................24 5.4 Governmental Filings; No Violations; Certain Contracts ......................................24 5.5 Financial Statements; Undisclosed Liabilities .......................................................25 5.6 Absence of Certain Changes ..................................................................................26 5.7 Litigation ................................................................................................................28 5.8 Employee Benefits .................................................................................................28 5.9 Compliance with Laws ..........................................................................................29 5.10 Taxes ......................................................................................................................30 5.11 Labor Matters .........................................................................................................32


 
iii US-DOCS\137120358.19 CAN_DMS: \149532846\17 5.12 Intellectual Property ...............................................................................................33 5.13 Insurance ................................................................................................................35 5.14 Real Property .........................................................................................................35 5.15 Contracts ................................................................................................................35 5.16 International Trade and Anti-Corruption Matters ..................................................37 5.17 Transactions With Affiliates ..................................................................................37 5.18 Brokers and Finders ...............................................................................................37 5.19 No Other Representations ......................................................................................38 ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE PURCHASER PARTIES ...........................................................................................................................38 6.1 Organization; Good Standing; Qualification .........................................................38 6.2 Capital Structure ....................................................................................................39 6.3 Corporate Authority; Approval ..............................................................................40 6.4 Governmental Filings; No Violations; Certain Contracts ......................................40 6.5 Financial Statements; Undisclosed Liabilities; Internal Controls; SEC Reports ...................................................................................................................41 6.6 Absence of Certain Changes ..................................................................................42 6.7 Litigation ................................................................................................................42 6.8 Brokers and Finders ...............................................................................................42 6.9 Compliance with Laws ..........................................................................................42 6.10 Investment Intent ...................................................................................................42 6.11 Access and Information .........................................................................................43 6.12 Taxes ......................................................................................................................43 6.13 Condition of Business; No Other Representations ................................................44 ARTICLE VII COVENANTS .......................................................................................................45 7.1 Further Assurances .................................................................................................45 7.2 Director and Officer Liability and Indemnification ...............................................45 7.3 Access to Books and Records ................................................................................45 7.4 Tax Matters ............................................................................................................45 7.5 Voting Agreement ..................................................................................................46 7.6 Employment Agreements .......................................................................................47 7.7 Release ...................................................................................................................47 ARTICLE VIII SURVIVAL AND INDEMNIFICATION ...........................................................47 8.1 Survival of Representations, Warranties and Covenants .......................................47 8.2 Indemnification by the Sellers ...............................................................................48 8.3 Indemnification by the Purchaser Parties ..............................................................49 8.4 Unpaid Amounts ....................................................................................................50 8.5 Claims ....................................................................................................................50 8.6 Defense of Proceedings ..........................................................................................50 8.7 Calculation of Damages .........................................................................................52 8.8 Tax Treatment of Indemnity Payments ..................................................................52


 
iv US-DOCS\137120358.19 CAN_DMS: \149532846\17 ARTICLE IX GENERAL PROVISIONS .....................................................................................52 9.1 Expenses ................................................................................................................52 9.2 Submission to Jurisdiction; Consent to Service of Process; Waiver of Jury Trial ........................................................................................................................52 9.3 Entire Agreement ...................................................................................................53 9.4 Amendments and Waivers .....................................................................................54 9.5 Governing Law ......................................................................................................54 9.6 Notices ...................................................................................................................54 9.7 Severability ............................................................................................................55 9.8 Binding Effect; Third-Party Beneficiaries; Assignment ........................................55 9.9 No Recourse Against Non-Parties .........................................................................55 9.10 Counterparts ...........................................................................................................56 9.11 Confidentiality .......................................................................................................56 9.12 Press Releases and Communications .....................................................................56 9.13 Specific Performance .............................................................................................56 9.14 Sellers’ Representative; Power of Attorney ...........................................................57 9.15 Independent Legal Advice .....................................................................................58 9.16 Amalgamation ........................................................................................................58 EXHIBITS Exhibit A Pro Rata Percentage Exhibit B Form of Note Purchase Agreement Exhibit C Form of Voting Agreement Exhibit D Form of Option Exchange Agreement Exhibit E Form of Employment Agreement


 
US-DOCS\137120358.19 CAN_DMS: \149532846\17 SHARE PURCHASE AGREEMENT THIS SHARE PURCHASE AGREEMENT (this “Agreement”), dated as of December 30, 2022, is made by and among 1393631 B.C. Unlimited Liability Company, a British Columbia ULC (“Purchaser”), Bird Global, Inc., a Delaware corporation (“Parent” and together with Purchaser, the “Purchaser Parties”), MKB Partners Fund II, Limited Partnership and MKB Partners Fund II International, Limited Partnership (“MKB”), Relay Ventures Fund III L.P. and Relay Ventures Parallel Fund III L.P. (“Relay”), Alate I LP (“Alate”), Obelysk Transport L.P. and John Bitove (“Obelysk”), 2136305 Ontario Inc. and Stewart Lyons (“Lyons”), JJ Bitove (“Bitove”), Austin Spademan (“Spademan”) and Ryan Lausman (“Lausman” and together with MKB, Relay, Alate, Obelysk, Lyons, Bitove and Spademan, each a “Seller” and, collectively, the “Sellers”), Bird Canada Inc., an Ontario corporation (the “Company”), and John Bitove, solely in his capacity as the Sellers’ Representative (as defined below) (each of the foregoing a “Party,” and collectively the “Parties”). Certain capitalized terms used in this Agreement are defined in Article I. RECITALS WHEREAS, as of the date hereof, the Sellers own all of the Company Shares; WHEREAS, the Parties desire that, upon the terms and subject to the conditions hereof, at the Closing, the Purchaser will purchase from each Seller, and such Seller will sell to the Purchaser, all of the Company Shares held by such Seller in exchange for such Seller’s pro rata percentage as set forth opposite such Seller’s name on Exhibit A (“Pro Rata Percentage”) of the Closing Consideration in accordance with the Consideration Schedule; WHEREAS, following the transactions described in the foregoing, the Purchaser will own all of the Company Shares; WHEREAS, concurrently with the execution of this Agreement, the Sellers or certain Affiliates thereof and Parent will enter into a Note Purchase Agreement, in the form of Exhibit B hereto (the “Note Purchase Agreement”), pursuant to which, among other things, Parent will issue to the Sellers or certain Affiliates thereof, certain secured promissory notes in Parent (the “Notes” and such Notes issued on the Closing Date pursuant to the Note Purchase Agreement, the “Initial Notes”); WHEREAS, at the Closing, the Company, Parent and each Company Option Holder shall enter into an Option Exchange Agreement, in the form of Exhibit D hereto (the “Option Exchange Agreement”); WHEREAS, the board of directors of Purchaser has approved this Agreement, the Related Documents and the transactions contemplated hereby and thereby, and authorized the Purchaser to enter into this Agreement and the Related Documents; WHEREAS, the board of directors of the Company has approved this Agreement, the Related Documents and the transactions contemplated hereby and thereby and authorized the Company to enter into this Agreement and the Related Documents;


 
2 US-DOCS\137120358.19 CAN_DMS: \149532846\17 WHEREAS, immediately following the issuance of the Initial Notes under the Note Purchase Agreement pursuant to the terms thereof, the Parent, the Company, certain of the Sellers, certain Affiliates of the Sellers and the Requisite Parent Company Stockholder shall enter into a Voting Agreement, in the form of Exhibit C hereto (the “Voting Agreement”), which shall be effective as of the Closing; WHEREAS, the board of directors of Parent has approved this Agreement and the Related Documents and the transactions contemplated hereby and thereby and recommended the approval of such Related Documents by Parent’s stockholders; and WHEREAS, the Requisite Parent Company Stockholder has approved and adopted this Agreement, the Related Documents and the transactions contemplated hereby and thereby, and approved the issuance of (i) the Initial Notes and the underlying shares of Parent Class A Common Stock to be issued under the Note Purchase Agreement, (ii) the Notes and the underlying shares of Parent Class A Common Stock to be issued as a portion of the Closing Consideration under this Agreement and (iii) the shares of Parent Class A Common Stock to be issued as a portion of the Closing Consideration under this Agreement. NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and agreements set forth herein, and subject to the terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows: ARTICLE I DEFINITIONS 1.1 Defined Terms. As used herein, the following terms shall have the following meanings: “Accounting Firm” has the meaning set forth in Section 2.5(b). “Accounting Methodology” means ASPE using and applying the policies, practices, bases and methodologies, in particular exercising any valuation and recognition options in the same way, as are used an applied in the Financial Statements; provided, however, that, if such policies, practices, bases and methodologies used and applied in the Financial Statements and ASPE are inconsistent, ASPE shall take precedence and control; provided, further, that, the Accounting Methodology shall follow the defined terms contained in this Agreement. “Affiliate” of any particular Person means any other Person that, directly or indirectly, through one or more intermediaries, controls, or is controlled by or is under common control with such particular Person. For the purposes of this definition, “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise; provided, however, that, in no event shall any investor in Parent be considered an Affiliate of the Purchaser for purposes of this Agreement.


 
3 US-DOCS\137120358.19 CAN_DMS: \149532846\17 “Affiliate Contract” means any Contract between the Company on the one hand, and a Seller Related Party, on the other hand, excluding, for the avoidance of doubt, this Agreement or any Related Document. “Agreement” has the meaning set forth in the preamble to this Agreement. “Alate” has the meaning set forth in the preamble to this Agreement. “Anti-Corruption Laws” means all applicable U.S., Canadian and foreign Laws relating to the prevention of corruption and bribery, including the U.S. Foreign Corrupt Practices Act of 1977, Corruption of Foreign Public Officials Act (Canada) and Criminal Code (Canada). “ASPE” means Accounting Standards for Private Enterprises under Part II of the CPA Canada Handbook, as from time to time approved by the Chartered Professional Accountants of Canada or any successor entity thereto. “Authorized Action” has the meaning set forth in Section 9.14. “Bankruptcy and Equity Exception” has the meaning set forth in Section 4.2. “Basket” has the meaning set forth in Section 8.2(c). “Bird Materials” has the meaning set forth in the Platform Technology Agreement. “Bird Systems” has the meaning set forth in the Platform Technology Agreement. “Business Day” means any day, excluding Saturday, Sunday and any other day on which commercial banks in Los Angeles, California or New York, New York are authorized or required by Law to close. “Canadian Securities Laws” means all applicable securities legislation in each of the provinces and territories of Canada, and the orders and published policy statements of the securities commissions or other securities regulatory authorities in such jurisdictions. “Cap” has the meaning set forth in Section 8.2(d). “CBA” has the meaning set forth in Section 5.11(a). “Claim” has the meaning set forth in Section 8.5. “Closing” has the meaning set forth in Section 2.2. “Closing Consideration” means (i) a number of Notes and shares of Parent Class A Common Stock having an aggregate principal amount and value equal to (a) the Purchase Price minus (b) the amount of Company Debt plus (c) the amount of Company Cash minus (d) the Company Option Value, (e) plus the Settlement Amount and (ii) an amount in cash equal to one hundred dollars ($100), in each case, to be paid to the Sellers in the form and in the amounts set forth on the Consideration Schedule.


 
4 US-DOCS\137120358.19 CAN_DMS: \149532846\17 “Closing Date” has the meaning set forth in Section 2.2. “Closing Overpayment Amount” has the meaning set forth in Section 2.5(d). “Closing Underpayment Amount” has the meaning set forth in Section 2.5(e). “Closing Statement” has the meaning set forth in Section 2.5(a). “Code” means the U.S. Internal Revenue Code of 1986, as amended. “Company” has the meaning set forth in the preamble to this Agreement. “Company Cash” means cash and cash equivalents of the Company, specifically including marketable securities, short-term investments, and bank deposits but excluding (i) collateralizing any letters of credit, performance bonds or other similar instruments, (ii) funds held as a security deposit under any contract or agreement, or held by the Company on behalf of employees in flexible spending accounts or (iii) funds that are not freely usable because they are subject to legal or other contractual restrictions on transfer, each determined in accordance with ASPE applied on a basis consistent with the methodologies, practices, estimation techniques, assumptions and principles used in the preparation of the Financial Statements. For the avoidance of doubt, Company Cash shall be calculated net of issued but uncleared checks and drafts and shall include checks, other wire transfers and drafts deposited or available for deposit for the account of the Company. “Company Common Shares” means the Common Shares of the Company. “Company Debt” means, without duplication, as to the Company, the aggregate amount (including the current portions thereof) of (a) indebtedness for money borrowed (including any unpaid principal, premium, prepayment penalties, accrued but unpaid interest expense, make- whole payments, breakage costs, commitment and other fees, reimbursements, obligations, indemnities and all other amounts payable in connection therewith and calculated to take into account all amounts required to repay such indebtedness); (b) capital lease obligations; (c) any obligations under letters of credit, banker’s acceptances, fidelity, surety or bonds, customs bonds or similar instruments or arrangements, in each case, to the extent drawn; (d) any net payment obligations under any interest rate or currency swaps, caps or other derivatives, commodity or hedging arrangements; (e) all obligations for the deferred purchase price of property, assets or services; (f) all obligations (including the employer’s share of any of payroll, employment, social security or other Taxes of the Company) in respect of any vacation or other paid time off and all unpaid and unfunded compensation (including termination pay, severance, bonuses (including a prorated portion of any bonuses paid in respect of fiscal year 2022 (based on actual performance and prorated based on the portion of such year occurring prior to the Closing)), profit- or revenue- sharing arrangements (including all amounts payable in relation to or arising (in whole or in part) out of any pre-Closing period) and commissions), in each case whether or not accrued; (g) all obligations secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned by the Company; (h) any accrued, unpaid Taxes of the Company with respect to any Pre-Closing Tax Period and (i) all indebtedness of the type referred to in the foregoing clauses (a) through (h) that is guaranteed by such Person.


 
5 US-DOCS\137120358.19 CAN_DMS: \149532846\17 “Company Equity Plan” means the Company’s Stock Option Plan. “Company Fundamental Representations” means (i) the Sellers’ and the Company’s representations and warranties set forth in Section 4.1 (Organization; Good Standing; Qualification), Section 4.2 (Corporate Authority; Approval), Section 4.3 (Ownership of the Company Shares), Section 5.1 (Organization; Good Standing; Qualification), Section 5.2 (Capital Structure) and Section 5.3 (Corporate Authority; Approval). “Company Material Contract” or “Company Material Contracts” has the meaning set forth in Section 5.15(a). “Company Option” means an option to purchase shares of the Company granted under the Company Equity Plan. “Company Option Holders” means the Company Option Holders set forth on Section 5.2(c) of the Disclosure Schedule. “Company Option Value” means $413,619, as may be adjusted in good faith by mutual agreement of the parties following the date hereof, including to incorporate Black Scholes options pricing. “Company Seed 1 Preferred Shares” means the Series Seed 1 Preferred Shares of the Company. “Company Seed 2 Preferred Shares” means the Series Seed 2 Preferred Shares of the Company. “Company Shares” means the Company Common Shares, the Company Seed 1 Preferred Shares and the Company Seed 2 Preferred Shares. “Company Software” means all Software (i) owned or purported to be owned by the Company, or (ii) that embodies any Owned Intellectual Property. “Company Systems” means all information technology equipment, computers, Software, hardware (whether general purpose or special purpose), servers, routers, networks, peripherals and other computer systems that are owned, controlled or used by the Company in the conduct of their respective businesses. “Confidentiality Agreement” means the Confidentiality Agreement, dated as of June 22, 2022, by and between Bird Rides, Inc. and Bird Canada Inc. “Consideration Schedule” means a schedule prepared by the Company and the Sellers’ Representative setting forth the consideration that each Seller is entitled to receive in connection with the Transactions based on the Pro Rata Percentage of each Seller in form and substance reasonably acceptable to the Purchaser (which schedule shall be consistent with the Organizational Documents of the Company).


 
6 US-DOCS\137120358.19 CAN_DMS: \149532846\17 “Contract” means any written or oral contract, indenture, note, bond, lease, license, commitment or other legally binding agreement. “Disclosure Schedule” has the meaning set forth in Article IV. “Dispute Notice” has the meaning set forth in Section 2.5(b). “D&O Tail Policy” has the meaning set forth in Section 7.2. “Employee Benefit Plan” means (i) each “employee benefit plan” (as such term is defined in Section 3(3) of ERISA or any similar plan subject to laws of a jurisdiction outside of the United States), (ii) each equity or equity-based compensation, phantom equity, bonus, commission, incentive, revenue-sharing, profit-sharing, pension, retirement, supplemental retirement, group savings, excess benefit, severance, termination, change in control, retention, transaction, fringe, deferred compensation, or employment, independent contractor, consulting, advisor or other similar Contract, plan, policy, arrangement or agreement and (iii) each savings, life, health, disability, sick leave, accident, medical, dental, vision, cafeteria, unemployment, post- employment, insurance, flex spending, adoption/dependent/employee assistance, tuition, vacation, paid-time-off and each other welfare fringe benefit, employee benefit or compensation Contract, plan, policy, arrangement or agreement, whether written or unwritten, whether funded or unfunded, in each case, that is maintained, sponsored or contributed to by the Company or under which the Company has any obligation or liability, whether actual or contingent, direct or indirect, to provide compensation or benefits to or for the benefit of any of its current or former Service Providers, or the spouses, beneficiaries or other dependents thereof (other than any statutory benefit plans to which any Person is required to contribute, including the Canada Pension Plan, the Quebec Pension Plan and plans administered by a Governmental Authority pursuant to applicable Tax, workplace safety and insurance, and employment insurance legislation). “Environmental Laws” means all Laws in effect on or prior to the Closing Date concerning pollution or protection of the environment, including all such Laws relating to the treatment, storage, disposal, transport, discharge, release or cleanup of any Hazardous Materials. “Equity Interests” means any share, capital stock or equity interest in any Person, including the Company Shares, and any option, warrant, call or other right, agreement or commitment convertible, exchangeable or exercisable thereto or therefor, including Company Options. “ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended. “ERISA Affiliate” means any trade or business (whether or not incorporated) that is treated as a single employer with the Company within the meaning of Section 414 of the Code or Section 4001(b)(i) of ERISA (whether or not such trade or business is incorporated or located in the U.S.). For the avoidance of doubt, any former ERISA Affiliate of the Company shall continue to be considered an ERISA Affiliate thereof within the meaning of this definition with respect to the period such Person was an ERISA Affiliate of the Company and with respect to liabilities arising after such period for which the Company could be liable under the Code or ERISA.


 
7 US-DOCS\137120358.19 CAN_DMS: \149532846\17 “Estimated Closing Consideration” has the meaning set forth in Section 2.3. “Estimated Closing Statement” has the meaning set forth in Section 2.3. “ETA” means the Excise Tax Act (Canada). “Exchange Act” means the United States Securities Exchange Act of 1934, as amended. “Exchange Ratio” means 6.830. “Final Closing Consideration” means the Closing Consideration as finally determined in accordance with Section 2.5. “Financial Statements” has the meaning set forth in Section 5.5. “Fraud” means, with respect to a party, an actual and intentional misrepresentation of a material existing fact with respect to the making of any representation or warranty in Articles IV, V and VI, made by such party, (a) for which such party had knowledge of its falsity and (b) made for the purpose of inducing the other party to act, and upon which the other party justifiably relies with resulting Losses. “Government Official” means any officer or employee of a Governmental Authority, including state-owned entities, or of a public organization or any Person acting in an official capacity for or on behalf of any such Governmental Authority or on behalf of any such public organization. “Governmental Authority” means any federal, provincial, state, regional, local, municipal or foreign government or subdivision thereof, any commission, agency, department, ministry, court, other instrumentality or official of any of the foregoing that has the authority to exercise executive, legislative, judicial, regulatory, taxing or administrative functions, and any arbitrator or arbitration forum. “GST” means all Taxes payable under Part IX of the ETA and if applicable, includes a reference to the “harmonized sales tax” (HST) imposed under Part IX of the ETA or under any provincial legislation similar to the ETA. “Hazardous Material” means any substance, material or waste regulated as a hazardous or toxic, or as a contaminant, under any Environmental Law, including petroleum, per- and polyfluoroalkyl substances, polychlorinated biphenyls and asbestos. “Indemnified Party” has the meaning set forth in Section 8.5. “Indemnifying Party” has the meaning set forth in Section 8.5. “Initial Notes” has the meaning set forth in the Recitals.


 
8 US-DOCS\137120358.19 CAN_DMS: \149532846\17 “Intellectual Property” means any and all rights in or affecting intellectual property, existing now or in the future in any jurisdiction in the universe, whether registered or unregistered, including rights arising out of, or associated with any of the following: (a) patents and patent applications and all reissues, divisionals, re-examinations, renewals, extensions, revisions, continuations and continuations-in-part thereof; (b) trademarks, service marks, trade names, brands, corporate names, logos, slogans and other indicia of source or origin, including all registrations, applications for registration and renewals thereof, and all goodwill associated with any of the foregoing; (c) copyrights, mask works and other works of authorship, moral rights and registrations and applications for registration thereof and all other rights corresponding thereto; (d) domain names and rights in social media accounts; (e) trade secrets and other confidential or proprietary information, including confidential or proprietary know-how, processes, techniques, technologies, methods, algorithms, industrial models, research and development information, drawings, specifications, designs, molds, plans, proposals, technical data, financial and marketing plans, pricing and cost information and client and supplier lists and information; (f) rights in Software, data and databases; (g) all tangible embodiments of the foregoing and all claims, causes of action and rights to sue for past, present and future infringement or unconsented use of any of the foregoing intellectual and other proprietary rights set forth in the foregoing clauses (a) through (f) above; and (h) the right to file applications and obtain registrations of any of the foregoing clauses (a) through (f) above with or from any Governmental Authority. “IRS” has the meaning set forth in Section 5.8(b). “Joint Communications” has the meaning set forth in Section 8.14. “Knowledge” means, when used with respect to the Company, the actual knowledge, after reasonable inquiry with respect to the relevant subject matter, of Stewart Lyons and JJ Bitove, neither of whom, for the sake of clarity and the avoidance of doubt, shall have any personal liability regarding such knowledge. “Law” means any federal, state, provincial, local, municipal or foreign law (including common law), statute, code, ordinance, by-law, rule, regulation or Order of a Governmental Authority. “Leases” has the meaning set forth in Section 5.14(b). “Lien” means any lien, encumbrance, pledge, mortgage, deed of trust, license, sublicense, encroachment, hypothecation, security interest, restriction on use or transfer, covenant, option, adverse claim or any similar claim or charge of any kind whatsoever. “Losses” means all losses, costs, expenses (including reasonable attorneys’ fees), Taxes, interest, charges, obligations, liabilities, settlement payments, awards, judgments, fines, penalties, damages, assessments or deficiencies. “MKB” has the meaning set forth in the preamble to this Agreement. “NI 45-106” means National Instrument 45-106 Prospectus Exemptions of the Canadian Securities Administrators.


 
9 US-DOCS\137120358.19 CAN_DMS: \149532846\17 “Non-Party Affiliates” has the meaning set forth in Section 9.9. “Note Purchase Agreement” has the meaning set forth in the Recitals. “Notes” means the Initial Notes and all other Notes to be issued pursuant to this Agreement and the Note Purchase Agreement. “OFAC” means the U.S. Department of Treasury Office of Foreign Assets Control. “Open Source” means open source, public source or freeware Intellectual Property, or any modification or derivative thereof, including any version of any Software licensed pursuant to any GNU general public license, GNU lesser general public license, Mozilla Public License or other Intellectual Property that is licensed pursuant to a license that requires, as a condition of use, modification or distribution of such Intellectual Property, that such Intellectual Property: (i) in the case of Software, be made available or distributed in a form other than binary (e.g., source code form); (ii) be licensed for the purpose of preparing derivative works; (iii) be licensed under terms that allow such Intellectual Property or portions thereof or interfaces therefor to be reverse engineered, reverse assembled or disassembled (other than by operation of law); or (iv) be redistributable at no license fee. “Option Exchange Agreement” has the meaning set forth in the Recitals. “Order” means any order, judgment, injunction, award, decree or writ adopted or imposed by, including any consent decree, settlement agreement or similar written agreement with, any Governmental Authority. “Ordinary Course of Business” means the ordinary and usual course of business of the Company consistent with past practice. “Organizational Documents” means the legal document(s) by which any Person (other than an individual) establishes its legal existence or which govern its internal affairs. For example, the “Organizational Documents” of a corporation are its certificate of incorporation, articles of incorporation, by-laws and equityholder agreements relating to the organization or governance of such corporation, the “Organizational Documents” of a limited partnership are its limited partnership agreement and certificate or declaration of limited partnership and the “Organizational Documents” of a limited liability company are its operating agreement and certificate of formation, including, in each case, any applicable amendments thereto. “Owned Intellectual Property” means Intellectual Property in which the Company has or purports to have an ownership interest of any nature (whether exclusively, jointly with another Person, or otherwise). “Owned Registered Intellectual Property” means Registered Intellectual Property in which the Company has or purports to have an ownership interest of any nature (whether exclusively, jointly with another Person, or otherwise). “Parent” has the meaning set forth in the preamble to this Agreement.


 
10 US-DOCS\137120358.19 CAN_DMS: \149532846\17 “Parent Class A Common Stock” has the meaning set forth in Section 6.2(a). “Parent SEC Reports” means all forms, reports, schedules, statements and other documents required to be filed or furnished by Parent with the SEC under the Securities Act or the Exchange Act since May 11, 2021, together with any amendments, restatements or supplements thereto. “Parent Share Value” means $0.2417. “Party” or “Parties” has the meaning set forth in the preamble to this Agreement. “Per Share Purchase Price” means the Per Share Purchase Price set forth on the Consideration Schedule. “Permit” means any and all permits, rights, approvals, licenses, authorizations, legal status, orders or Contracts under any applicable Law or otherwise granted or issued by any Governmental Authority. “Permitted Liens” means: (a) Liens for Taxes not yet due and payable or that are being contested in good faith through appropriate Proceeding and for which reserves in accordance with ASPE have been established in the Financial Statements; (b) mechanics’, carriers’, workers’, repairers’ and similar Liens arising or incurred in the Ordinary Course of Business; (c) zoning, entitlement, building and other land use and environmental regulations imposed by any Governmental Authority; (d) covenants, conditions, restrictions, easements and other similar matters of record affecting real property; (e) Liens arising under worker’s compensation, unemployment insurance, social security and similar legislation; (f) purchase money Liens and Liens securing rental payments under capital lease arrangements arising or incurred in the Ordinary Course of Business; (g) Liens arising under leases of personal property or equipment in favor of the owner thereof entered into in the Ordinary Course of Business; (h) non-exclusive licenses of Owned Intellectual Property granted by the Company to end users in the Ordinary Course of Business pursuant to standard forms of end user license agreements or terms of service; (i) Liens arising under or created by this Agreement or any of the Related Documents; (j) Liens described on Section 1.1(b) of the Disclosure Schedule; (k) restrictions on transfer of Equity Interests arising pursuant to federal, state and provincial securities laws; and (l) other Liens, imperfections in title, charges, easements, rights of way, restrictions, defects and exceptions that do not materially impair the use or value of the property to which they relate. “Person” means any individual, partnership, corporation, limited liability company, business trust, joint stock company, estate, trust, unincorporated association, joint venture, firm, Governmental Authority or other entity, of whatever nature. “Personal Information” means information, in any form, that (a) identifies, relates to, describes, is capable of being associated with or could be linked, directly or indirectly, to identify, contact or locate a natural Person; and/or (b) is considered “personally identifiable information,” “personal information,” “protected health information,” or “personal data” by one or more applicable Laws.


 
11 US-DOCS\137120358.19 CAN_DMS: \149532846\17 “Platform Technology Agreement” means that certain Platform Technology and Services Agreement, effective as of June 4, 2019, by and between Bird Rides Canada ULC and the Company. “Post-Closing Covenant” has the meaning set forth in Section 8.1. “Purchase Price” means $32,000,000. “Pre-Closing Tax Period” means any taxable period ending on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period through the end of the Closing Date. “Privacy and Security Laws” means all applicable Laws, guidance and industry standards relating to the privacy, security or processing of Personal Information, including, as applicable, those pertaining to data breach notification, consumer protection, Social Security number protection and email, text message or telephone communications. Without limiting the foregoing, Privacy and Security Laws include the Federal Trade Commission Act; the Telephone Consumer Protection Act; the Telemarketing and Consumer Fraud and Abuse Prevention Act; the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003; the Computer Fraud and Abuse Act; the Electronic Communications Privacy Act; the California Consumer Privacy Act; the Canadian Personal Information Protection and Electronic Documents Act; the Payment Card Industry Data Security Standards; and all other similar international, federal, state, provincial, and local Laws. “Proceeding” means any claim, complaint, dispute, charge, cause of action, action, lawsuit, arbitration, application, deemed complaint, grievance, hearing, inquiry, audit, examination, investigation or other proceeding (including any civil, criminal, administrative, arbitration or appellate proceeding) brought, conducted or heard by or before, or otherwise involving, any Governmental Authority, and includes any appeal or review thereof and any application for leave for appeal or review. “Pro Rata Percentage” has the meaning set forth in the Recitals. “Purchaser” has the meaning set forth in the preamble to this Agreement. “Purchaser Disclosure Schedule” has the meaning set forth in Article VI. “Purchaser Fundamental Representations” means the Purchaser Parties’ representations and warranties set forth in Section 6.1 (Organization; Good Standing; Qualification), Section 5.2 (Capital Structure), Section 6.3 (Corporate Authority; Approval), and Section 6.8 (Brokers and Finders). “Purchaser Related Parties” means the Purchaser, any Affiliate of the Purchaser, and its direct and indirect equityholders, officers, directors, employees, partners, members, managers, agents, attorneys, representatives, successors or permitted assigns. “Reference Date” means December 26, 2021.


 
12 US-DOCS\137120358.19 CAN_DMS: \149532846\17 “Registered Intellectual Property” means all Intellectual Property that is registered, filed, certified, issued or otherwise perfected or recorded with or by any Governmental Authority or domain name registrar, including all patents, registered copyrights, registered trademarks and domain names, and all applications for any of the foregoing. “Relatives” means, with respect to any Person, such Person’s spouse, parents, grandparents and lineal descendants, and the parents, grandparents and lineal descendants of such Person’s spouse, and any other Person sharing the same household. “Related Documents” means the Note Purchase Agreement, the Voting Agreement and each other agreement, document, instrument or certificate contemplated by this Agreement or to be executed in connection with the Transactions. “Relay” has the meaning set forth in the preamble to this Agreement. “Released Claims” has the meaning set forth in Section 7.4. “Released Parties” has the meaning set forth in Section 7.4. “Releasing Parties” has the meaning set forth in Section 7.4. “Requisite Parent Company Stockholder” means Travis VanderZanden. “Resolution Agreement” has the meaning set forth in Section 2.5(b). “Review Period” has the meaning set forth in Section 2.5(b). “Sanctioned Person” means any Person: (a) listed on any Sanctions Laws-related list of designated or blocked persons, such as OFAC’s Specially Designated Nationals and Blocked Persons List, the Department of State’s Nonproliferation Sanctions List or the Department of Commerce’s Denied Persons List and Entity List, the Consolidated List of Persons subject to European Union financial sanctions, the United Kingdom Consolidated List of Financial Sanctions Targets, or the Consolidated Canadian Autonomous Sanctions List; (b) resident in or organized under the Laws of a country or territory that is the subject of comprehensive restrictive Sanctions Laws from time to time (which includes, as of the date of this Agreement, Cuba, Iran, Sudan, Burma (Myanmar), North Korea, Syria, Belarus, Russia and the Crimea region and so-called Donetsk People’s Republic and Luhansk People’s Republic in Ukraine); or (c) majority-owned or otherwise controlled by any of the foregoing. “Sanctions Laws” means all applicable U.S. and non-U.S. Laws relating to economic or trade sanctions, including the Laws administered or enforced by the United States (including by OFAC or the U.S. Department of State), Canada or the United Nations Security Council. “Schedule” means a section of the Disclosure Schedule or the Purchaser Disclosure Schedule, as applicable. “SEC” means the United States Securities and Exchange Commission.


 
13 US-DOCS\137120358.19 CAN_DMS: \149532846\17 “Securities Act” means the United States Securities Act of 1933, as amended. “Seller Related Parties” means any Seller, any Affiliate of any Seller (other than a wholly owned Subsidiary of the Company), and each of their respective Relatives, equityholders, officers, directors, employees, partners, members, managers, agents, attorneys, representatives, successors or permitted assigns. “Seller” or “Sellers” has the meaning set forth in the preamble to this Agreement. “Sellers’ Representative” has the meaning set forth in Section 9.14(a). “Service Provider” means any employee, officer, director, manager, or individual independent contractor or consultant (including any such individual engaged through a loan-out or similar entity wholly-owned by such individual) of the Company. “Settlement Amount” means $50,000. “Software” means any and all (a) computer programs, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code, (b) databases, compilations, data aggregation programs and search engine technologies, including any and all data and collections of data, whether machine readable or otherwise, (c) descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing and (d) user documentation and related materials, including user manuals and training materials, relating to any of the foregoing. “Straddle Period” means any taxable period that includes, but does not end on, the Closing Date. “Subsidiary” or “Subsidiaries” means, with respect to any Person, any corporation, partnership, limited liability company or other Person of which such Person, either alone or together with one or more Subsidiaries or by one or more other Subsidiaries (a) directly or indirectly owns or purports to own, beneficially or of record securities or other interests representing more than 50% of the allotted and issued equity, voting power or financial interests of such Person; or (b) is entitled, by Contract or otherwise, to elect, appoint or designate directors constituting a majority of the members of such other Person’s board of directors or other governing body. “Tax” or “Taxes” means: (a) any and all taxes and other duties, fees, assessments, imposts, levies, charges or assessments that are imposed by any Governmental Authority and that are in the nature of a tax, including those levied on, or measured by, or referred to as, income, gross receipts, profits, capital, franchise, transfer, land transfer, sales, goods and services, harmonized sales, use, value-added, excise, stamp, estimated, withholding, business, franchising, property, realty, development, occupancy, employer health, payroll, employment, health, social security health insurance and Canada, Québec and other government pension plan premiums or contributions, and employment/unemployment insurance; and (b) all interest, penalties, fines or additions to tax imposed by any Governmental Authority on or in respect of amounts of the type described in clause (a) above or this clause (b), and in the case of amounts of the type described both clause (a) and (b), whether disputed or not.


 
14 US-DOCS\137120358.19 CAN_DMS: \149532846\17 “Tax Act” means the Income Tax Act (Canada). “Tax Return” means any return, report statement, schedule, claim for refund, or information return (including any related or supporting information) filed or required to be filed with any Taxing Authority in connection with the determination, assessment, administration or collection of any Taxes, including any schedules or attachments thereto, and including any amendment thereof. “Taxing Authority” means the Internal Revenue Service, the Canada Revenue Agency and any other Governmental Authority responsible for the assessment, collection, or administration of any Tax (or otherwise having authority or jurisdiction with respect to) any Tax. “Transaction Expenses” means all fees, costs and expenses of counsel, accountants and investment bankers incurred by or on behalf of or paid or payable by the Company in connection with the Note Purchase Agreement or the consummation of transactions contemplated thereunder. “Transactions” means the transactions contemplated by this Agreement and the Related Documents. “Unpaid Amounts” has the meaning set forth in Section 8.4. “Voting Agreement” has the meaning set forth in the Recitals. 1.2 Other Definitional and Interpretive Matters. (a) Unless otherwise expressly provided in this Agreement, for purposes of this Agreement, the following rules of interpretation shall apply: (i) Calculation of Time Period. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day. (ii) Dollars. Any reference in this Agreement or the Related Documents to $ shall mean U.S. dollars, which is the currency used for all purposes in this Agreement and the Related Documents. For purposes of calculating the Closing Consideration and the treatment of Company Options in Section 2.7, amounts not in U.S. dollars (including exercise prices) shall be converted from their applicable currencies to U.S. dollars at the exchange rate as published in the Wall Street Journal, Eastern Edition, as of the Closing Date; provided, however, that, notwithstanding the foregoing, for purposes of calculating the Estimated Closing Consideration included in the Estimated Closing Statement, amounts not in U.S. dollars shall be converted from their applicable currencies to U.S. dollars at the exchange rate as published in the Wall Street Journal, Eastern Edition, as of the date one (1) Business Day prior to delivery of the Estimated Closing Statement.


 
15 US-DOCS\137120358.19 CAN_DMS: \149532846\17 (iii) Exhibits/Schedules/Annexes. All Exhibits, Schedules and Annexes hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. (iv) Gender and Number. Any reference in this Agreement to gender shall include all genders, and words imparting the singular number only shall include the plural and vice versa. (v) Headings. The provision of a Table of Contents, the division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement. All references in this Agreement to any “Article” or “Section” are to the corresponding Article or Section of this Agreement unless otherwise specified. (vi) Herein. The words such as “herein,” “hereinafter,” “hereof” and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. (vii) Including. The word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. (viii) Made Available. The phrase “made available” means that the referenced document or other material was posted and accessible to the Purchaser and its representatives in the online data room hosted by Datasite established in connection with the Transaction no less than two (2) Business Days prior to the date of this Agreement and remained so posted and accessible through the date of this Agreement. (ix) Legislation and Contracts. A reference to any legislation or to any provision of any legislation shall include any amendment thereto, and any modification or re-enactment thereof, any legislative provision substituted therefor and all rules and regulations and statutory instruments issued thereunder or pursuant thereto. A reference to any Contract or to any provision of any Contract shall include any amendment thereto, and any modification or waiver thereof. (b) The Parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement. Further, prior drafts of this Agreement or any Related Documents or the fact that any clauses have been added, deleted or otherwise modified from any prior drafts of this Agreement or any Related Documents shall not be used as an aid of construction or otherwise constitute evidence of the intent of the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of such prior drafts.


 
16 US-DOCS\137120358.19 CAN_DMS: \149532846\17 ARTICLE II PURCHASE AND SALE; CLOSING 2.1 Purchase and Sale of the Company Shares. Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, the Purchaser will purchase, acquire and accept from the Sellers, and the Sellers will sell, assign and convey to the Purchaser all of the Company Shares held by the Sellers, free and clear of any Liens (other than restrictions on transfer contained in the Company’s Organizational Documents or arising pursuant to federal, state and provincial securities laws), in exchange for the Closing Consideration (to be paid to each Seller pro rata in accordance with the Consideration Schedule). 2.2 Closing. On the terms and subject to the conditions set forth in this Agreement, the closing of the Transactions (the “Closing”) will take place by electronic delivery of documents (i.e., email of PDF documents), on January 3, 2023 (the “Closing Date”). 2.3 Estimated Closing Statement. No later than three (3) Business Days prior to the Closing, the Company shall have delivered to the Purchaser (a) a written statement setting forth a good faith estimate of the (i) amount of Company Debt; (ii) amount of Company Cash; (iii) a calculation of the Closing Consideration based on such amounts (such calculation, the “Estimated Closing Consideration,” and such written statement, the “Estimated Closing Statement”); and (b) the Consideration Schedule. The Purchaser will be entitled to rely upon the Consideration Schedule for purposes of allocating the Closing Consideration among the Sellers. 2.4 Closing Payments and Issuances. At the Closing, the Purchaser shall: (a) pay, or cause to be paid (on behalf of the Company), by wire transfer of immediately available funds, the Transaction Expenses to the applicable recipients thereof. (b) transfer to each Seller, in exchange for the Company Shares held by such Seller, such Seller’s Pro Rata Percentage of the Closing Consideration, in accordance with the terms of this Agreement and the Consideration Schedule. 2.5 Closing Consideration Adjustment. (a) Closing Statement. Within sixty (60) days after the Closing Date, the Purchaser shall cause to be prepared and delivered to the Sellers’ Representative a statement setting forth the Purchaser’s good faith calculation of (i) the amount of Company Debt; (ii) the amount of Company Cash; and (iii) a calculation of the Closing Consideration based on such amounts (the “Closing Statement”). The Closing Statement shall include reasonable supporting detail of each of the components of the Closing Consideration and a reconciliation of such components with the amounts delivered in the Estimated Closing Statement. The Closing Statement shall be prepared based upon the books and records of the Company in accordance with the Accounting Methodology and the definitions as provided in this Agreement. (b) Closing Statement Dispute. If the Sellers’ Representative disputes the accuracy of the calculations reflected in the Closing Statement, the Sellers’ Representative shall provide written notice to the Purchaser no later than forty-five (45) days (such forty-five (45)-day period, the “Review Period”) following delivery by the Purchaser to the Sellers’ Representative


 
17 US-DOCS\137120358.19 CAN_DMS: \149532846\17 of the Closing Statement setting forth in reasonable detail those items and dollar amounts that the Sellers’ Representative disputes, together with the nature and basis of such disputes and the Sellers’ Representative’s alternative calculation of each disputed item (the “Dispute Notice”). Any item set forth in the Closing Statement and not objected to in the Dispute Notice shall be final and binding on the Parties for purposes of determining the Final Closing Consideration. If the Sellers’ Representative does not deliver a Dispute Notice within the Review Period, then the calculation of Closing Consideration reflected in the Closing Statement shall be deemed final, conclusive and binding on the Parties in all respects. During the thirty (30)-day period following delivery of a Dispute Notice, the Purchaser and the Sellers’ Representative shall negotiate in good faith to resolve such disputed items. If the Purchaser and the Sellers’ Representative, notwithstanding such good faith effort, fail to resolve the disputed items set forth in the Dispute Notice within thirty (30) days after the Sellers’ Representative delivers the Dispute Notice to the Purchaser, then the Purchaser or the Sellers’ Representative shall jointly engage an independent nationally recognized accounting firm with experience in such matters and that is mutually agreed upon by the Purchaser and the Sellers’ Representative (in either case, the “Accounting Firm”), to resolve the disputed items (acting as an expert and not an arbitrator). As promptly as practicable thereafter, the Purchaser and the Sellers’ Representative shall each prepare and submit to the Accounting Firm one written presentation (only with respect to the unresolved disputed items set forth in the Dispute Notice) and one written response to the other Party’s written presentation; provided, however, that the Purchaser and the Sellers’ Representative cannot assign a value to any disputed item that is more favorable to such Party than what such Party included in the Closing Statement or the Dispute Notice, as applicable; provided, further, that copies of all such materials are concurrently provided to the other Party and that such discussions may only occur in the presence (including by telephone) of the other Party. The Parties acknowledge and agree that the Federal Rules of Evidence Rule 408 (and any corresponding state rules) shall apply to the Purchaser, the Company and the Sellers’ Representative during any such negotiations and any subsequent dispute arising therefrom. As soon as practicable thereafter, but no later than thirty (30) days from the final submission of presentations from the Purchaser and the Sellers’ Representative, the Purchaser and the Sellers’ Representative shall use reasonable best efforts to cause the Accounting Firm to render its written decision (including reasonable supporting detail thereto) with respect to only the unresolved disputed items set forth in the Dispute Notice (and no other items) based solely upon the terms and provisions of this Agreement and the presentations by the Purchaser and the Sellers’ Representative and not by way of an independent review (it being acknowledged and agreed that the failure of the Accounting Firm to strictly conform to any deadline or time period contained herein shall not render the determination of the Accounting Firm invalid and shall not be a basis for seeking to overturn any determination rendered by the Accounting Firm). In resolving any disputed item, the Accounting Firm may not assign a value to any item greater than the maximum value for such item claimed by either Party or less than the minimum value of such item claimed by either Party. At any time, the Purchaser and the Sellers’ Representative may agree to settle any remaining unresolved item, including any such item submitted to the Accounting Firm, which agreement shall be in writing and be deemed final, conclusive and binding on the Parties with respect to the subject matter of such disputed item so resolved (the “Resolution Agreement”); provided, however, that if the Accounting Firm has been engaged, the Purchaser and the Sellers’ Representative shall promptly provide a copy of such agreement to the Accounting Firm and instruct the Accounting Firm not to resolve such disputed item so resolved, it being agreed that if the Accounting Firm nonetheless resolved such item for


 
18 US-DOCS\137120358.19 CAN_DMS: \149532846\17 any reason, the Resolution Agreement shall control. The Closing Consideration as finally determined in accordance with this Section 2.5 shall be referred to herein as the “Final Closing Consideration.” Judgement may be entered upon the determination of the Accounting Firm in any court having jurisdiction over the Party against which such determination is to be enforced. The fees and expenses of the Accounting Firm shall be allocated to be paid equally by the Purchaser, on the one hand, and the Sellers’ Representative, on the other. (c) Access. For purposes of complying with the terms set forth in this Section 2.5, following delivery of the Closing Statement and until Final Closing Consideration is determined pursuant to this Section 2.5, the Purchaser and the Company shall cooperate and provide to the Sellers’ Representative and its representatives all information, records, data and working papers (including any such materials prepared by outside accountants or other advisors, subject to execution of customary access letters) and shall make available, during normal business hours, all personnel (including outside accountants and other advisors, subject to execution of customary access letters), in each case (i) as may be reasonably requested by the Sellers’ Representative in connection with its review and analysis of the Closing Statement and the resolution of any disputes with respect thereto; and (ii) subject to customary confidentiality obligations, attorney-client privilege and compliance with applicable Law. (d) If the Estimated Closing Consideration is greater than the Final Closing Consideration (the amount by which Estimated Closing Consideration exceeds Final Closing Consideration, the “Closing Overpayment Amount”), then promptly, but in no event later than three (3) Business Days, following the date on which Final Closing Consideration is determined, each Seller shall pay to the Purchaser an amount in cash equal to its Pro Rata Percentage of such Closing Overpayment Amount. (e) If the Final Closing Consideration is greater than the Estimated Closing Consideration (the amount by which Final Closing Consideration exceeds Estimated Closing Consideration, the “Closing Underpayment Amount”), then promptly, but in no event later than three (3) Business Days, following the date on which Final Closing Consideration is determined, the Purchaser shall pay to each Seller an amount in cash equal to such Seller’s Pro Rata Percentage of such Closing Underpayment Amount. (f) The Parties agree that any amount paid under this Section 2.5 shall be treated as an adjustment to the purchase consideration for applicable income Tax purposes to the extent permitted by applicable Tax Law. 2.6 Withholding. Purchaser, the Company, each of their Affiliates and any other Person making payments on behalf of them shall be entitled to deduct and withhold from amounts payable in connection with the transactions contemplated by this Agreement such Taxes as are required to be deducted or withheld under applicable Tax Law. To the extent that any amounts are so withheld and timely and properly paid over to the appropriate Taxing Authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. 2.7 Treatment of Company Options.


 
19 US-DOCS\137120358.19 CAN_DMS: \149532846\17 (a) All Company Options that are outstanding and unexercised as of immediately prior to the Closing will vest in full (to the extent then-unvested) effective immediately prior to the Closing. Effective as of the Closing, each Company Option that is outstanding immediately prior to the Closing with an exercise price that is less than the Per Share Purchase Price (each, an “In-the-Money Option”) shall be assumed by Parent and converted automatically at the Closing into the right to receive an option to purchase shares of Parent Class A Common Stock upon substantially the same terms and conditions as are in effect with respect to such option immediately prior to the Closing (each, a “Parent Option”), except that (x) such Parent Option shall relate to that whole number of shares of Parent Class A Common Stock equal to the number of Company Common Shares subject to such Company Option immediately prior to the Closing multiplied by the Exchange Ratio (and rounded down to the nearest whole share); and (y) the exercise price per share for each such Parent Option shall be equal to the exercise price of such Company Option as in effect immediately prior to Closing divided by the Exchange Ratio (and rounded up to the nearest whole cent); provided, however, that the conversion of the Company Options in a manner intended to comply with (x) for any Company Option that is intended to qualify as an incentive stock option within the meaning of Section 424 of the Code, the requirements of Section 424 of the Code, and (y) in each case, the requirements of Section 409A of the Code. It is further intended that the aggregate “in-the-money” value, immediately after the exchange, of the Parent Option issued to a Company Option Holder pursuant hereto not exceed the aggregate “in-the-money” value, immediately before the exchange, of such holder’s In-the- Money Options exchanged, such that the exchange for the Parent Option hereunder be made pursuant to (and qualify under) the provisions of subsection 7(1.4) of the Income Tax Act (Canada). Therefore, in the event that the “in-the-money” amount of any Parent Option immediately after the exchange exceeds the “in-the-money” amount of any exchanged In-the- Money Option, immediately before the exchange, the exercise price per share of the Parent Option will be adjusted accordingly with effect at and from the time of execution of this Agreement to ensure that the “in-the-money” amount of the Parent Options, immediately after the exchange, does not exceed the “in-the-money” amount, immediately before the exchange, of the Company Option exchanged, in order that this exchange be made pursuant to subsection 7(1.4) of the Income Tax Act (Canada). ARTICLE III CLOSING DELIVERIES 3.1 Deliveries by the Company and the Sellers. On or prior to the Closing Date, the Sellers’ Representative, the Sellers or the Company, as applicable, shall have delivered or caused to be delivered to the Purchaser the following items: (a) the certificates or other evidence of ownership representing the Company Shares; (b) a transfer of the Company Shares, duly executed by each Seller; (c) the Note Purchase Agreement, duly executed by each Seller or an Affiliate thereof;


 
20 US-DOCS\137120358.19 CAN_DMS: \149532846\17 (d) an applicable IRS Form W-8, duly executed and properly completed by each Seller and the Company; (e) an Option Exchange Agreement, duly executed by each Company Option Holder; and (f) employment agreements executed by the Company and each of Stewart Lyons, Michael Washinushi and JJ Bitove, substantially in the form contemplated by Exhibit E. 3.2 Deliveries by the Purchaser. On or prior to the Closing Date, the Purchaser shall have delivered or caused to be delivered to the Company and the Sellers’ Representative the following items: (a) evidence of payment of the Closing payments set forth in Section 2.4; (b) the Note Purchase Agreement, duly executed by Parent; (c) the Option Exchange Agreements, duly executed by Parent; and (d) the Voting Agreement, duly executed by Parent and the Requisite Parent Company Stockholder; and (e) an employment agreement with each of Stewart Lyons, Michael Washinushi and JJ Bitove executed by the Parent or an affiliate thereof, substantially in the form contemplated by Exhibit E. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE SELLERS Except as made available to the Purchaser or as disclosed in the disclosure schedule of even date herewith (the “Disclosure Schedule”), each Seller hereby makes the representations and warranties contained in this Article IV, severally and not jointly and solely with respect to such Seller and not any other Seller, in each case, to the Purchaser: 4.1 Organization; Good Standing; Qualification. (a) Such Seller, if not an individual, is a corporation or other legal entity, duly organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or formation, and has the requisite power and authority to own, lease and operate its properties, assets and rights and to carry on its business as currently conducted, except where the failure to have such requisite power or authority would not, individually or in the aggregate, have a material adverse effect on such Seller’s ability to consummate the Transactions or to perform its obligations under this Agreement or the Related Documents to which such Seller is a party. (b) Such Seller, if not an individual, is qualified to do business and is in good standing (with respect to jurisdictions that recognize the concept of good standing) as a foreign corporation or other legal entity in each jurisdiction where the ownership, leasing or operation of


 
21 US-DOCS\137120358.19 CAN_DMS: \149532846\17 its assets, properties, rights or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have a material adverse effect on such Seller’s ability to consummate the Transactions or to perform its obligations under this Agreement or the Related Documents to which such Seller is a party. 4.2 Corporate Authority; Approval. Such Seller possesses the full legal right and all requisite power and authority to enter into and has taken all organizational action necessary to execute, deliver and perform its obligations under this Agreement and each Related Document to be executed by such Seller in connection with the consummation of the Transactions and to consummate the Transactions. This Agreement and the Related Documents to which such Seller is a party have been duly executed and delivered by such Seller and, assuming the due authorization, execution and delivery hereof by the other Sellers, the Company and the Purchaser, as applicable, constitutes a valid and binding obligation of such Seller, in each case, enforceable against such Seller in accordance with its terms, except as enforceability is subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles (the “Bankruptcy and Equity Exception”). 4.3 Ownership of Company Shares. As of the date of this Agreement, such Seller is the record and beneficial owner of, and has good and valid title to, all of the Company Shares set forth opposite such Seller’s name on Section 4.3 of the Disclosure Schedule, free and clear of all Liens (other than restrictions on transfer contained in the Company’s Organizational Documents or arising pursuant to federal, state and provincial securities laws). Such Seller has full power and authority to sell, transfer, assign and deliver the Company Shares to the Purchaser, and such delivery will convey to the Purchaser at the Closing good and valid title to the Company Shares free and clear of any and all Liens, other than restrictions on transfer contained in the Company’s Organizational Documents or arising pursuant to federal, state and provincial securities laws. Except pursuant to this Agreement, there is no contractual obligation or other commitment pursuant to which any Seller has, directly or indirectly, granted any option, warrant or other right to any Person to acquire, or pursuant to which such Seller could otherwise be required to sell, transfer or otherwise dispose of, any Equity Interests in the Company. Such Seller is not a party to, and the applicable Company Shares are not subject to, any shareholders agreement, voting agreement, voting trust, proxy or other contractual obligation relating to the transfer or voting of such Company Shares. 4.4 Governmental Filings; No Violations; Certain Contracts. (a) Except as disclosed in Section 4.4(a) of the Disclosure Schedule, no notices, reports or other filings are required to be made by such Seller with, nor are any consents, registrations, approvals, permits or authorizations required to be obtained by any Seller from any Governmental Authority in connection with the execution, delivery and performance of this Agreement by such Seller and the consummation of the Transactions, except those that the failure to make or obtain, as the case may be, would not, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the Transactions or to perform its obligations under this Agreement or the Related Documents to which such Seller is a party.


 
22 US-DOCS\137120358.19 CAN_DMS: \149532846\17 (b) The execution, delivery and performance of this Agreement by such Seller does not constitute or result in (i) if such Seller is not an individual, a breach or violation of, or a default under, the certificate of formation or limited partnership agreement (or similar Organizational Documents) of such Seller; or (ii) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) or default under, the creation, cancellation, acceleration, loss, impairment or alteration or other change of any rights, benefits or obligations under, result in the payment of any fee under, or the creation of a Lien on any of the assets, properties or rights of such Seller pursuant to, any Contract, or assuming (solely with respect to performance of this Agreement and consummation of the Transactions) compliance with the matters referred to in Section 4.4(a), under any Law or Permit to which such Seller is subject, except, in the case of clause (ii), for any such breach, violation, termination, default, creation, cancellation, acceleration, loss, impairment, alteration, change, fee or Lien that would not, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the Transactions or to perform its obligations under this Agreement or the Related Documents to which such Seller is a party. 4.5 Litigation. There are no Proceedings pending or, to such Seller’s knowledge, threatened against such Seller which (a) seek to restrain or enjoin the consummation of the Transactions; or (b) if determined adversely, would, individually or in the aggregate, have a material adverse effect on the ability of such Seller to consummate the Transactions or its ability to perform its obligations under this Agreement or the Related Documents to which such Seller is a party. 4.6 Investment Intent. Such Seller is acquiring his, her or its Pro Rata Percentage of the Closing Consideration for his, her or its own account, for investment only, without a view to any resale or distribution thereof. Such Seller has been advised that the Notes constituting a portion of the Closing Consideration (and the underlying shares of Parent Class A Common Stock) and the shares of Class A Common Stock constituting a portion of the Closing Consideration have not been registered under the Securities Act or any state securities laws, and therefore cannot be resold unless they are registered under the Securities Act and applicable state securities laws or unless an exemption from such registration requirements is available. Such Seller is aware that Parent is not under any obligation to effect any such registration with respect to such Notes (or the underlying shares of Parent Class A Common Stock) or such shares of Parent Class A Common Stock or to file fore or comply with any exemption from registration. Such Seller is an “Accredited Investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act. 4.7 Brokers and Finders. No Seller nor any of its officers, directors or employees has engaged, as of the date hereof, any Person or incurred any liability for any brokerage fees, commissions or finder’s fees in connection with the Transactions. 4.8 Residence. Such Seller is not a non-resident of Canada (or, if a partnership, is a Canadian partnership) for purposes of the Tax Act.


 
23 US-DOCS\137120358.19 CAN_DMS: \149532846\17 ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY Except as made available to the Purchaser or as disclosed in the Disclosure Schedule, the Company hereby makes the representations and warranties contained in this Article V to the Purchaser: 5.1 Organization; Good Standing; Qualification. The Company is a corporation or other legal entity duly organized, validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the Laws of the jurisdiction of its organization and has all requisite corporate or similar power and authority to own, lease and operate its properties, assets and rights and to carry on its business as conducted as of the date of this Agreement and is qualified to do business and is in good standing (with respect to jurisdictions that recognize the concept of good standing) as a foreign corporation or other legal entity in each jurisdiction where the ownership, leasing or operation of its assets, properties, rights or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the Company, taken as a whole. Copies of the Organizational Documents of the Company and each Subsidiary of the Company, as in effect on the date of this Agreement, have been made available to the Purchaser, and each such Organizational Document is in full force and effect and the Company is not in violation of any provisions thereof, except for any such failure or violation, in each case, that would not reasonably be expected to be material to the Company or to prevent or materially impair the ability of the Sellers or the Company to perform their obligations under this Agreement or the Related Documents to which such Person is a party or to consummate the Transactions. 5.2 Capital Structure. (a) Section 5.2(a) of the Disclosure Schedule sets forth a list of the issued and outstanding Equity Interests of the Company, all of which, as of the date of this Agreement, are issued, outstanding and owned beneficially and of record by the Sellers and the Company Option Holders. All of the outstanding Equity Interests of the Company have been duly authorized and are validly issued, fully paid and nonassessable and are free of any Liens (other than restrictions on transfer contained in the Company’s Organizational Documents or arising pursuant to federal, state and provincial securities laws). Except as set forth in Section 5.2(c) of the Disclosure Schedule, there are no options, warrants, rights, equity appreciation rights, profits interests, restricted equity, phantom equity, convertible or exchangeable securities, other incentive equity or equity linked awards or rights, repurchase or redemption rights, calls, subscriptions, voting or other rights, agreements, arrangements, obligations or commitments relating to the issued or unissued Equity Interests of the Company, or any other Contracts or other obligations of the Company providing for the issuance of additional Equity Interests or for the acquisition, sale, transfer, delivery, grant, repurchase or redemption of Equity Interests of the Company. There is no liability for dividends or other distributions accrued and unpaid by the Company. All outstanding Equity Interests of the Company that have been issued by the Company were issued in compliance with applicable Law and all requirements set forth in the Organizational Documents and any applicable Contracts to which the Company is a party or by which the Company or any of its assets are bound.


 
24 US-DOCS\137120358.19 CAN_DMS: \149532846\17 (b) The Company does not own or control, directly or indirectly, any Equity Interest in any Person, or have any obligation or commitment to acquire any such Equity Interest. (c) Section 5.2(c) of the Disclosure Schedule sets forth a list of each Company Option outstanding as of the date hereof, including (i) the name of the Company Option Holder, (ii) the number of Company Common Shares covered by such Company Option on the grant date, (iii) the vesting schedule (including any accelerated vesting provisions), (iv) the date of grant, (v) the exercise price per share of such Company Option, and (vi) the applicable expiration date. Each Company Option was duly authorized no later than the date on which the grant of such Company Option was by its terms to be effective by all necessary corporate action, including, as applicable, approval by the Company’s board of directors (or a duly authorized committee thereof) and any required Company shareholder approval by the necessary number of votes or written consents. No Company Option has been retroactively granted, nor has the exercise price of any Company Option been determined retroactively or reduced after the date of grant. All Company Options have a per- share exercise price that has at all times been no less than the fair market value of a Company Common Share on the applicable grant date. True and complete copies of all form agreements (and any amendments thereto, if applicable) evidencing Company Options have been provided or made available to the Purchaser, and all grants of Company Options have been made pursuant to terms and conditions that do not materially deviate from the Company Equity Plan or from such form agreements. True and complete copies of each third party valuation of the Company Common Shares obtained by, or provided to, the Company have been provided or made available to the Purchaser. Each Company Option may, in accordance with its terms, be treated at the Closing as set forth in Section 2.7 above. (d) The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter. (e) Other than the Organizational Documents of the Company, there are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the voting or registration of any Equity Interests of the Company. 5.3 Corporate Authority; Approval. The Company has all requisite corporate power and authority to enter into and has taken all corporate action necessary to execute, deliver and perform its obligations under this Agreement and each of the Related Documents to which it is a party. This Agreement and the Related Documents to which the Company is a party have been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery hereof by the Sellers and the Purchaser, as applicable, this Agreement and each Related Document to which the Company is party constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability is subject to the Bankruptcy and Equity Exception. 5.4 Governmental Filings; No Violations; Certain Contracts. (a) Except as disclosed in Section 5.4(a) of the Disclosure Schedule, to the knowledge of the Company, no notices, reports or other filings are required to be made by the


 
25 US-DOCS\137120358.19 CAN_DMS: \149532846\17 Company with, nor are any consents, registrations, approvals, permits or authorizations required to be obtained by the Company from any Governmental Authority in connection with the execution, delivery and performance of this Agreement by the Company and the consummation of the Transactions, except those that the failure to make or obtain, as the case may be, would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the Company, taken as a whole or to prevent the consummation of the Transactions. (b) The execution, delivery and performance of this Agreement and the Related Documents to which the Company is party by the Company does not, and the consummation of the Transactions will not (i) result in a breach or violation of, or a default under (with or without notice, lapse of time or both), or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any benefit under, or require any consent, approval or waiver from any Person pursuant to (A) any Organizational Document of the Company; (B) any Company Material Contract; or (C) any applicable Law; (ii) result in the creation of a Lien (other than a Permitted Lien) on any of the assets, properties or rights of the Company; or (iii) contravene or result in a violation of, or give any Governmental Authority or other Person the right to challenge any of the Transactions or to exercise any remedy or obtain any relief under, any applicable Law or any Order or Permit to which the Company is subject, except, in the case of clause (i)(B) or (i)(C), for any such breach, violation, termination, default, creation, cancellation, acceleration, loss, impairment, alteration, change, fee or Lien that would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the Company or to prevent the consummation of the Transactions. 5.5 Financial Statements; Undisclosed Liabilities. (a) The following financial statements (such financial statements, the “Financial Statements”) have been made available to the Purchaser and a true, complete and correct copy of such Financial Statements is set forth in Section 5.5(a) of the Disclosure Schedule: (i) the unaudited financial statements of the Company for the twelve (12)-month periods ending December 26, 2020 and audited financial statements of the Company for the twelve (12)-month periods ending December 26, 2021 including balance sheets as of December 26, 2020 and December 26, 2021, and the related audited statements of income, shareholder’s deficit and cash flows for the fiscal years of the Company then ended. (b) The Financial Statements have been prepared from the books and records of the Company and present fairly, in all material respects, the consolidated financial position and consolidated results of operations of the Company as at such dates in accordance with ASPE, except as may be indicated in the notes thereto. (c) The Company is not subject to any material liability or obligation of any nature, whether accrued, absolute, determined, determinable, fixed or contingent, except for those liabilities and obligations (i) disclosed, reflected or reserved against or provided for in the Financial Statements in accordance with ASPE; (ii) incurred in the Ordinary Course of Business since the Reference Date; provided, however, that none of such liabilities or obligations arise out of a violation or default of, or noncompliance with, any Contract or Law, as applicable, on the part of


 
26 US-DOCS\137120358.19 CAN_DMS: \149532846\17 the Company; or (iii) as contemplated by this Agreement, the Related Documents or otherwise incurred in connection with the Transactions. (d) Neither the Company (including any employee thereof) nor the Company’s independent auditors has identified or been made aware of (i) any fraud or illegal act, whether or not material, that involves the management or other employees of the Company who have a role in the preparation of financial statements or the internal accounting controls utilized by the Company; or (ii) any claim or allegation regarding the foregoing. (e) There is no Company Debt other than the Company Debt set forth on the Estimated Closing Statement. (f) Notwithstanding the representations and warranties made in this Article V, the Financial Statements do not give effect to the Transactions. 5.6 Absence of Certain Changes. Except (i) as set forth on Section 5.6 of the Disclosure Schedule; (ii) as required by applicable Law or Contract to which the Company is bound; or (iii) as otherwise contemplated by this Agreement or any of the Related Documents, since the Reference Date, the Company has not: (a) (i) issued, granted, sold or transferred any Company Shares; (ii) declared or paid any dividends on or made any other distributions (whether in cash, shares or other property) in respect of any of its Equity Interests; (iii) reduced, split, combined or reclassified any of its Equity Interests; (iv) pledged or encumbered its Equity Interests; or (v) repurchased or otherwise acquired, directly or indirectly, any of its Equity Interests; (b) amended the Organizational Documents of the Company; (c) except as otherwise required by applicable Law, (i) adopted, terminated or materially amended any Employee Benefit Plan or a plan that would be an Employee Benefit Plan if it were in existence on the date of the Agreement; (ii) materially increased (or committed to increase) or decreased (or committed to decrease) the amount of any bonus, termination or severance entitlement, annual base salary, or fees payable to any Service Provider; (iii) hired, engaged or terminated, or entered into any employment, independent contractor, consulting, termination or severance agreement with, any Service Provider with annual base compensation exceeding CAD100,000, or materially increased or decreased the benefits under any Employee Benefit Plan; (iv) granted, paid, or promised to pay or grant any equity or equity-based incentive awards or any, change in control, severance, termination pay, retention or transaction bonus, or other one-time special remuneration to any current or former Service Provider; or (v) accelerated the vesting, funding or payment of any compensation or benefits payable to any Service Provider; (d) entered into any commitment for capital expenditures of the Company other than for the acquisition of vehicles from Purchaser Parties; (e) (i) amended, modified or waived any terms of any Company Material Contract outside the Ordinary Course of Business; or (ii) entered into any Company Material Contract outside of the Ordinary Course of Business;


 
27 US-DOCS\137120358.19 CAN_DMS: \149532846\17 (f) sold, assigned, licensed, transferred, abandoned, pledged, permitted to lapse, dedicated to the public, conveyed or otherwise disposed of any of the material properties or assets (including any Owned Intellectual Property) of the Company other than non-exclusive licenses of Owned Intellectual Property granted to end users in the Ordinary Course of Business pursuant to standard forms of end user license agreements or terms of service; (g) changed its accounting methods or principles in any material respect, except as required by ASPE or by the Company’s auditors; (h) (i) made, changed or revoked any material Tax election in a manner materially inconsistent with past practice; (ii) changed any method of accounting or annual accounting period for Tax purposes; (iii) settled any material claim in respect of Taxes or entered into a voluntary disclosure or similar arrangement with respect to Taxes; (i) (i) (i) entered into or agreed to enter into any merger, amalgamation, arrangement or consolidation with any Person; (ii) acquired, or agreed to acquire, by merging or consolidating with, or by purchasing the securities or a substantial portion of the assets of, or by any other manner, any other Person or division thereof, or otherwise acquired or agreed to acquire any assets that are material, in the aggregate, to the Company except, in each case, for transactions involving only the Company; or (iii) entered into a new line of business; (j) (i) paid, discharged or satisfied any claim or liability other than in the Ordinary Course of Business or other than the payment, discharge or satisfaction of liabilities reflected or reserved against in the Financial Statements; or (ii) deferred any payment of any accounts payable other than in the Ordinary Course of Business, or gave any discount, accommodation or other concession other than in the Ordinary Course of Business, in order to accelerate or induce the collection of any receivable; (k) canceled, released or waived any material claims or rights held by the Company; (l) entered into or amended any Affiliate Contract; (m) negotiated, entered into, amended, terminated or otherwise became bound by any Contract or collective bargaining agreement with a labor union trade union, works council, economic committee, union or similar body; (n) (i) made any loans or advances (except expense advances to officers, employees or consultants in the Ordinary Course of Business or participant loans under Tax- qualified Plans) to, or any material investments in or capital contributions to any Person; or (ii) forgave or discharged in whole or in part any amount of outstanding loans or advances (except expense advances to officers, employees or consultants in the Ordinary Course of Business or participant loans under Tax-qualified Plans); (o) adopted or entered into any plan of complete or partial liquidation or dissolution of, or otherwise liquidated, dissolved or wound up the operations of, the Company; or (p) committed or agreed to take any of the foregoing actions.


 
28 US-DOCS\137120358.19 CAN_DMS: \149532846\17 5.7 Litigation. There are no, and for the past two (2) years, there have not been any, Proceedings pending or, to the Knowledge of the Company, threatened in writing in any court or before or by any other Governmental Authority against the Company or any of its assets, officers or employees (in their capacities as such or relating to their employment, services or relationship with the Company) which would, individually or in the aggregate, reasonably be expected to materially and adversely affect the Company. There is no, and in the past two (2) years there has not been any, Order against the Company or its assets, or, to the Knowledge of the Company, any of the Company’s officers or employees (in their capacities as such or relating to their employment, services or relationship with the Company). The Company does not have any Proceeding against any other Person, except as would not reasonably be expected to materially and adversely affect the Company. 5.8 Employee Benefits. (a) Section 5.8(a) of the Disclosure Schedule provides a list of each Employee Benefit Plan, other than any individual award agreement, individual offer of employment letter or individual consulting agreement, in any case, that is consistent in all material respects with the applicable template set forth on Section 5.8(a) of the Disclosure Schedule and that does not provide any accelerated vesting, retention, change in control or severance payments or benefits. The Company has not sponsored, maintained, contributed to, or has been required to sponsor, maintain, participate in or contribute to, any employee benefit plan, program, or other arrangement providing compensation or benefits to any Service Provider (or any dependent thereof) which is subject to the Laws of any jurisdiction outside of Canada. (b) Copies of each Employee Benefit Plan, as in effect on the date of this Agreement, have been made available to the Purchaser, or to the extent such Employee Benefit Plan is unwritten, a written description of the material terms thereof. There has also been provided or otherwise made available to the Purchaser the following (to the extent applicable): (i) all material records, notices and filings to or from any Governmental Authority; (ii) copies of the most recent summary plan descriptions, employee booklets insurance contracts and policies, trust or other funding agreements, summaries of material modification and all other material documents related to such Employee Benefit Plan; and (iii) for the three (3) most recent plan years, copies of the annual financial and accounting statements, including any actuarial valuation report (to the extent applicable). There has also been provided or otherwise made available to the Purchaser all material, non-routine communications relating to any Employee Benefit Plan within the last three (3) years (including any such correspondence to or from any participants or Governmental Authority). (c) No material liability or obligation, whether absolute or contingent, under ERISA has been or could reasonably expected to be incurred by the Company or any of its ERISA Affiliates. (d) None of the Employee Benefit Plans: (i) is a “registered pension plan” for purposes of section 248 of the Tax Act or is required to be registered under federal or provincial minimum pension standards legislation in Canada; (ii) is a “salary deferral arrangement” for purposes of section 248 of the Tax Act; (iii) is a “retirement compensation arrangement” for purposes of section 248 of the Tax Act; or (iv) provides for retiree or post-employment health and


 
29 US-DOCS\137120358.19 CAN_DMS: \149532846\17 welfare benefits for retired or former employees, consultants, directors or other Service Providers including to the beneficiaries or dependents of any of them, other than as required by applicable Law or for a statutory, common law, civil law or contractual notice period. (e) Each Employee Benefit Plan has been established, funded and maintained and administered in material compliance with its terms and all applicable Laws. (f) All premiums, contributions or other payments required to be made to the Employee Benefit Plans by the Company pursuant to the terms of such Employee Benefit Plans and provisions and applicable Law as of the Closing Date have been timely made or have been properly accrued as a financial indebtedness of the Company on the financial statement. (g) With respect to each Employee Benefit Plan, (i) to the Knowledge of the Company, no breaches of fiduciary duty or other failures to act or comply in connection with the administration or investment of the assets of such Employee Benefit Plan have occurred; and (ii) no Lien has been or is reasonably expected to be imposed under applicable Law. (h) There is no Proceeding pending (other than routine claims for benefits) or threatened against or arising out of or otherwise related to any of the Employee Benefit Plan or any fiduciary thereof and, to the Knowledge of the Company, no events or circumstances exist that could reasonably give rise to any such Proceeding. No Proceeding has been brought (and none have been for the past three (3) years), or to the Knowledge of the Company, is threatened, against or with respect to any Employee Benefit Plan, including any audit or inquiry by any Taxing Authority or Governmental Authority. (i) Neither the approval, execution and/or delivery of this Agreement nor the consummation of the Transactions is reasonably expected to, alone or together with any other event or circumstance, whether contingent or otherwise (including any termination of service): (i) entitle any current or former Service Provider to any benefit or payment; (ii) accelerate the time of payment or vesting, or increase the amount, of any compensatory benefit due to any Service Provider under any Employee Benefit Plan, or otherwise give rise to any obligation to fund or any liability under any Employee Benefit Plan; or (iii) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any Service Provider. (j) Neither the execution and delivery of the Agreement nor the consummation of the Transactions, either alone or in connection with any other event(s), will give rise to any “excess parachute payment” as defined in Section 280G(b)(l) of the Code, any excise tax owing under Section 4999 of the Code or any other amount that would not be deductible under Section 280G of the Code. (k) No Employee Benefit Plan provides health or other welfare benefits payable to any former employee of the Company, other than as required by applicable Law. 5.9 Compliance with Laws. To the knowledge of the Company, the Company is in possession of all material Permits required under applicable Law for the current operation of its business and all such Permits are in full force and effect, except where the failure to have such Permits would not, individually or in the aggregate, materially and adversely affect the Company. For the past twelve (12) months, to the knowledge of the Company, the Company has complied in


 
30 US-DOCS\137120358.19 CAN_DMS: \149532846\17 all material respects with any and all Laws applicable to it and have not received any written notices of material violation of any Laws applicable to it. 5.10 Taxes. (a) The Company has timely filed or caused to be filed with appropriate Taxing Authorities all income and other material Tax Returns required to be filed by it (taking into account extensions). All such Tax Returns are true, correct and complete in all material respects. The Company has timely paid all income and other material Taxes that are due and owing or otherwise required to be paid by it (whether or not shown to be due and payable on any Tax Return). (b) No assessments or reassessments of the Taxes of the Company are currently the subject of an objection or appeal, there are no Proceedings that are pending or threatened in writing against the Company in respect of any Taxes or Tax Returns and there are no matters under audit or appeal with any Governmental Authority relating to Taxes or Tax Returns of the Company. (c) No written claim has been received by the Company from any Taxing Authority in a jurisdiction where the Company does not file a Tax Return asserting that the Company is or may be subject to taxation by that jurisdiction that would be the subject of such Tax Return, which claim has not been settled or subsequently withdrawn. (d) There are no Liens for Taxes upon any assets, properties or rights of the Company, except for liens for Taxes not yet due and payable. (e) There are no outstanding waivers to extend the statutory period of limitations or other similar limitations period with respect to Taxes for which the Company is liable. (f) The Company is not a party to any Tax sharing, allocation, indemnity or similar agreement or arrangement (other than customary commercial agreements, the primary purpose of which does not relate to Taxes and that were entered into in the Ordinary Course of Business). The Company does not have any material liability for the Taxes of another Person as a successor or transferee or under applicable Law (including as a result of its participation in any combined, consolidated, affiliated or similar Tax group at any time prior to the Closing). (g) The Company will not be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any period (or any portion thereof) ending after the Closing Date as a result of any installment sale or open transaction made or entered into before the Closing Date, accounting method change made or required to be made on or prior to the Closing Date, agreement with or ruling by any Taxing Authority entered into or issued before the Closing Date, or any prepaid amount or deferred revenue received or accrued by the Company outside the Ordinary Course of Business prior to the Closing. (h) The Company has not received or requested any written Tax ruling from a Governmental Authority that is pending or will bind the Company after the Closing. (i) The Company does not own any interest in real property located in the United States.


 
31 US-DOCS\137120358.19 CAN_DMS: \149532846\17 (j) The Company has complied in all material respects with all Laws relating to escheat and abandoned or unclaimed property. (k) Since the Reference Date, the Company has not incurred any material liability for Taxes outside the Ordinary Course of Business. (l) The Company is not subject to material taxation in the United States and does not earn any material amount of U.S. source income for U.S. federal income tax purposes.1 (m) The Company has duly and timely withheld all material Taxes required by Law to be withheld by it, and has duly and timely remitted to the appropriate Governmental Authority such Taxes as required by Law. The Company has remitted all Canada Pension Plan contributions, provincial pension plan contributions, employment insurance premiums, employer health taxes and other Taxes payable or required to be withheld and remitted by it in respect of its applicable employees to the appropriate Governmental Authority within the time required under applicable Law. (n) The Company has duly and timely collected all amounts on account of GST required by Law to be collected by it and has duly and timely remitted to the appropriate Governmental Authority any such amounts required by Law to be remitted by it. (o) The Company has not claimed or received an amount in respect of a Tax credit, refund, rebate, government grant or subsidy pursuant to any COVID-19 Government Assistance (if any), to which it is not fully entitled. (p) There are no transactions or events that have resulted, in the application to the Company of sections 80, 80.01, 80.02, 80.03, 80.04 of the Tax Act or any analogous provision of any comparable Law of any province or territory of Canada. (q) The Company has not incurred any deductible outlay or expense owing to a person not dealing at arm's length (for purposes of the Tax Act) with such company, the amount of which would, in the absence of an agreement filed under paragraph 78(1)(b) of the Tax Act, be included in such company’s income for Canadian income tax purposes for any taxation year or fiscal period beginning on or after the Closing Date under paragraph 78(1)(a) of the Tax Act or any analogous provision of any comparable Law of any province or territory of Canada. (r) The Company has not acquired property from a person not dealing at arm's length (for purposes of the Tax Act) with it in circumstances that would result in such company becoming liable to pay Taxes of such person under subsection 160(1) of the Tax Act (including as it is proposed to be amended as of the date hereof) or any analogous provision of any comparable Law of any province or territory of Canada. 1 NTD: Tax advisors to discuss withholding issues in relation to the Notes (and representations to be included here or in NPA in relation to withholding).


 
32 US-DOCS\137120358.19 CAN_DMS: \149532846\17 Notwithstanding anything in this Agreement to the contrary, the representations and warranties contained in Section 5.6(h), Section 5.8, and this Section 5.10 constitute the sole and exclusive representations and warranties being made in this Agreement with respect to Taxes. 5.11 Labor Matters. (a) The Company is not party to or bound by, either directly or by operation of applicable Law, any collective bargaining agreement, works council agreement, labor contract, letter of understanding, letter of intent, voluntary recognition agreement or legally binding commitment or written communication to any labor union, trade union or employee organization or group which may qualify as a trade union in respect of or affecting employees of the Company (whether written or oral, express or implied) (in any case, a “CBA”), and the Company is not negotiating or under an obligation to negotiate any CBA. (b) The Company is, and for the past three (3) years has been, in compliance in all material respects with all applicable Laws relating to labor, employment, applicants, employees and/or individual and sole proprietor independent contractors, including all Laws relating to employment practices and standards, terms and conditions of employment, hiring, background checks, notices and trainings, wages and hours, discrimination, harassment, retaliation, human rights, pay equity, language, accessibility, classification, independent contractor classification, classification as eligible or ineligible for overtime (or as exempt or non-exempt from applicable wage and hour Laws), plant closings, mass layoffs, mass or group termination, immigration, authorization to work, workers’ compensation, labor relations, occupational health and safety, leaves of absences, vacation and other time off work, disability and/or unemployment insurance. (c) There are no pending, and there have not been in the past three (3) years any, allegations against any current or former Service Provider in connection with his or her service to the Company for, and, to the Knowledge of the Company, no Service Provider has engaged in, harassment, discrimination or similar misconduct of any nature, or breach of any policy of the Company relating to the foregoing; and to the Knowledge of the Company, no such allegations are threatened or reasonably anticipated. (d) The Company has not engaged in any unfair labor practice. There are no strikes, labor disputes, slowdowns, arbitration proceedings, unfair labor practice complaints or charges, grievances or concerted work stoppages pending or threatened against the Company involving its or their employees. To the Knowledge of the Company, there are currently no union organizational efforts with respect to employees of the Company. (e) The Company has provided the Purchaser with a list of all employees of the Company as of the date hereof, including each such employee’s: (i) name; (ii) job title; and (iii) hourly rate, annual salary or other base pay. The Company has also provided the Purchaser with a list of all independent contractors currently engaged by the Company. (f) In the past six (6) months, the Company has not carried out any layoff or any temporary layoff, furlough, or hours or pay reduction that could constitute constructive dismissal under applicable Laws.


 
33 US-DOCS\137120358.19 CAN_DMS: \149532846\17 (g) There are no Proceedings pending or threatened against the Company relating to any applicant or current or former Service Provider, or otherwise relating to any labor or employment matter of the Company. The Company is not a party to any consent decree with, charges, specialty or penalty assessment by, or citation from, any Governmental Authority under applicable employment standards, occupational health and safety, workers’ compensation, or other Laws relating to employment practices, applicants, and/or current or former employees or independent contractors. The Company has paid in full to all of its or their Service Providers (or otherwise adequately accrued as a financial indebtedness of the Company set forth on the Financial Statements) all wages, salaries, fees, commissions, bonuses, benefits and other compensation due to or on behalf of such Service Provider. 5.12 Intellectual Property. (a) Section 5.12(a) of the Disclosure Schedule sets forth a list of (i) each item of Owned Registered Intellectual Property; (ii) the jurisdiction in which such item of Owned Registered Intellectual Property has been registered or filed and the applicable application, registration, serial or other similar identification number; (iii) the registered owner of each such item of Owned Registered Intellectual Property; (iv) any other Person (other than the Company) that has an ownership interest in such item of Owned Registered Intellectual Property and the nature of such ownership interest; and (v) with respect to each domain name, the applicable domain name registrar and expiration date. All Owned Registered Intellectual Property is valid, subsisting and enforceable. All necessary registration, maintenance and renewal fees currently due in connection with the Owned Registered Intellectual Property have been made, and all necessary documents, recordations and certificates in connection with the Owned Registered Intellectual Property have been filed with the applicable Governmental Authority for the purposes of maintaining such Owned Registered Intellectual Property. (b) The Company (A) own all right, title and interest in or to, free and clear of all Liens other than Permitted Liens, all Owned Intellectual Property (and all moral and other non- assignable rights in such Owned Intellectual Property have been waived) and (B) have rights to use all other Intellectual Property used by the Company in their respective businesses as currently conducted, and the consummation of the Transactions will not alter or impair any such rights in any material manner; provided that the foregoing clause (B) is to the Knowledge of the Company with respect to the use of the Bird Materials by the Company in accordance with the Platform Technology Agreement. (c) There are no written claims received in writing or, to the Knowledge of the Company, threatened against the Company contesting the validity, ownership, registration, use or enforceability of any of the Owned Intellectual Property. (d) In the past three (3) years, the Company has not made any written claim of any violation, misappropriation or infringement by other Persons of any Owned Intellectual Property. No third party has infringed, misappropriated or otherwise violated the Company’s rights in the Owned Intellectual Property. (e) The Company is not violating, misappropriating or infringing or has violated, misappropriated or infringed upon the Intellectual Property of other Persons, and the


 
34 US-DOCS\137120358.19 CAN_DMS: \149532846\17 operation of the Company’s businesses is not violating, misappropriating or infringing and has not violated, misappropriated or infringed upon any Intellectual Property rights of other Persons; provided that the foregoing is to the Knowledge of the Company with respect to the Bird Materials used by the Company in accordance with the Platform Technology Agreement. (f) The Company take commercially reasonable steps to maintain the confidentiality of the trade secrets and other confidential or proprietary information of the Company. All Persons that have authored, developed or otherwise created any Intellectual Property for or on behalf of the Company (i) have executed valid and enforceable written agreements pursuant to which such Person validly assigns to the Company exclusive ownership of all of such Person’s right, title and interest in and to such Intellectual Property, in accordance with all applicable Laws and without further consideration or any restrictions or obligations on the Company. No current or former employee or contractor of the Company is in violation of any term or covenant of any Contract relating to employment, invention disclosure, invention assignment, non-disclosure or non-competition or any other Contract with any other party by virtue of such employee’s or contractor’s being employed by, or performing services for, the Company or using trade secrets or proprietary information of others without permission. (g) The Company Systems are sufficient in all material respects for the needs of the Company and their businesses as currently conducted; provided that the foregoing is to the Knowledge of the Company with respect to the Bird Systems used by the Company in accordance with the Platform Technology Agreement. The Company own or otherwise have the valid, enforceable and sufficient right to use all Company Systems; provided that the foregoing is to the Knowledge of the Company with respect to the Bird Systems used by the Company in accordance with the Platform Technology Agreement. The Company Systems and Company Software do not contain any viruses, worms, Trojan horses, time bombs, drop-dead devices, back doors, spyware, adware, bugs, faults or other devices that would enable or assist any Person to, without authorization, disrupt, erase, destruct, disable, access or impair any Company Systems, Company Software or information stored therein; provided that the foregoing is to the Knowledge of the Company with respect to the Bird Materials used by the Company in accordance with the Platform Technology Agreement. (h) No Open Source has been used, bundled, linked, integrated, modified or distributed by or on behalf of the Company (including in connection with any Company Software) in such a manner as would require the Company to (i) publicly make available any source code that is part of the Company Software, (ii) license, distribute, or make available any source code for the purpose of reverse engineering or making derivative works of such source code, or to permit any other Person to perform such actions, (iii) permit the Company Software to be reverse engineered, reverse assembled or disassembled (other than by operation of law), or (iv) be restricted or limited from charging for distribution of any Company Software. (i) The Company has not entered into any Contracts with any Person requiring, upon the absence or occurrence of an event of default, the release, disclosure, license or release from escrow of any source code included in the Owned Intellectual Property by or to any escrow agent or other Person. The Company has not disclosed to any Person or obligated itself to disclose to any Person any source code included in the Owned Intellectual Property other than disclosures to its employees and contractors subject to a written confidentiality agreement. Neither the


 
35 US-DOCS\137120358.19 CAN_DMS: \149532846\17 execution of this Agreement nor the consummation of the Transactions will, with or without notice or the lapse of time, result in the release, disclosure, license or delivery of any source code included in the Owned Intellectual Property by or to any escrow agent or other Person. 5.13 Insurance. The Company is insured against such losses and risks and in such amounts as are customary in the businesses in which they are engaged, except where the failure to be so insured would not reasonably be expected to materially and adversely affect the Company. 5.14 Real Property. (a) The Company does not own any real property. (b) Section 5.14(b) of the Disclosure Schedule sets forth a list of all leases, subleases, licenses or similar agreements relating to the Company’s use or occupancy of real property (“Leases”), copies of which, together with all amendments, extensions, renewals, guaranties and other material agreements with respect thereto, as in effect on the date of this Agreement, have been made available to the Purchaser. With respect to each of the Leases: (i) such Lease is in full force and effect and is a valid and binding obligation of the Company that is a party thereto and enforceable in accordance with its terms against the Company and, to the Knowledge of the Company, each other party thereto; (ii) the Company’s possession and quiet enjoyment of the leased premises under such Lease has not been disturbed and, to the Knowledge of the Company, there are no material disputes with respect to such Lease; (iii) neither the Company nor, to the Knowledge of the Company, any other party is in material default or breach of such Lease, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would give rise to such material default or breach; and (iv) the Company has not subleased, licensed or otherwise granted any Person the right to use or occupy such leased premises or any portion thereof. 5.15 Contracts. (a) Except for the Leases listed on Section 5.14(b) of the Disclosure Schedule, Section 5.15(a) of the Disclosure Schedule sets forth a list of all Contracts (other than purchase orders entered into in the Ordinary Course of Business which need not be listed on Section 5.15 of the Disclosure Schedule, but shall otherwise constitute Company Material Contracts for purposes of this Agreement) to which the Company is party or to which the Company is otherwise bound that fall into the following categories (the Contracts listed on Section 5.15(a) of the Disclosure Schedule, or that should have been listed on Section 5.15(a) of the Disclosure Schedule, the “Company Material Contracts” and each of them, a “Company Material Contract”): (i) any Contract that involves annual payments or consideration furnished by or to the Company of more than CAD100,000; (ii) any Contract for capital expenditures by the Company in excess of CAD 100,000; (iii) any Contract, pursuant to which the Company licenses from, or is otherwise permitted by, a third party to use any Intellectual Property, other than any (A) “shrink wrap” or other end-user licenses for commercially available off-the-shelf software


 
36 US-DOCS\137120358.19 CAN_DMS: \149532846\17 licensed to the Company on a non-exclusive basis and on standard unmodified terms, and with a replacement cost or annual license, maintenance or subscription fees of less than CAD 100,000 per year; or (B) Contracts with employees, consultants or independent contractors of the Company that are entered into in the Ordinary Course of Business; (iv) any Contract, pursuant to which the Company grants to a third party any licenses to, or assignment of, any Owned Intellectual Property (other than (i) confidentiality or non-disclosure agreements or (ii) non-exclusive licenses of Owned Intellectual Property granted to end users pursuant to standard forms of end user license agreements or terms of service, in each case, entered into in the Ordinary Course of Business); (v) any Contract providing for the development, distribution, modification, or delivery, deposit into escrow, or release from escrow, of any Owned Intellectual Property, independently or jointly, by or for the Company or that otherwise materially affects the use or enforcement by the Company of any Owned Intellectual Property (including any settlement agreement, covenant not to assert, and consent to use) (other than Contracts with employees, consultants or independent contractors of the Company that are entered into in the Ordinary Course of Business); (vi) any Contract providing for the employment or services of any Service Provider (A) providing for annual compensation or fees (including as a result of any profit or revenue sharing arrangements) equal to or in excess of CAD 100,000 (or otherwise expected to be equal to or in excess of CAD100,000 for 2022); or (B) that is not terminable at any time without advanced notice or payment of any termination pay, severance or penalty or liability; (vii) any Affiliate Contract; (viii) any Contract involving Company Debt; (ix) any Contract by which the Company loans or advances to, or guarantees for the benefit of, any other Person; (x) any partnership agreement, joint venture agreement, strategic alliance or other collaboration relating to the Company; (xi) any Contract (including, for the avoidance of doubt, letters of intent and similar agreements) involving the sale, purchase, assignment, transfer or other acquisition or disposition of any business or any material assets of any Person (in a single transaction or a series of related transactions, whether by merger, amalgamation, arrangement, stock sale, asset sale or otherwise), in each case, entered into in the past three (3) years or under which the Company has any indemnification, “earn-out,” deferred purchase price or other payment obligations or other material continuing liability; (xii) any Contract pursuant to which the Company has agreed to settle, waive or otherwise compromise any pending or threatened Proceeding that contains any material continuing obligation; or


 
37 US-DOCS\137120358.19 CAN_DMS: \149532846\17 (xiii) any Contract that is otherwise material to the Company, taken as a whole, and not otherwise disclosed pursuant to this Section 5.15(a). (b) As of the date hereof, each Company Material Contract is in full force and effect and is a valid and binding obligation of the Company that is party thereto and enforceable in accordance with its terms, except as enforceability is subject to the Bankruptcy and Equity Exception, in accordance with its terms against the Company and, to the Knowledge of the Company, each other party thereto. As of the date hereof, neither the Company, to the Knowledge of the Company, any other party is in default or breach of any Company Material Contract and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute such a breach or default, except for defaults or breaches that would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. The Company has not received any written notice regarding any material violation or breach of, default under or intention to cancel or materially modify any Company Material Contract. 5.16 International Trade and Anti-Corruption Matters. (a) For the past three (3) years, neither the Company, nor any of its officers, directors or employees, nor, to the Knowledge of the Company, any agent or other third-party representative (when acting on behalf of the Company), is currently: (i) a Sanctioned Person; (ii) engaging in any dealings or transactions with any Sanctioned Person, to the extent such activities violate applicable Sanctions Laws; or (iii) otherwise in violation of applicable Sanctions Laws. (b) For the past three (3) years, neither the Company, nor any of its respective officers, directors or employees, nor, to the Knowledge of the Company, any agent or other third- party representative (when acting on behalf of the Company), has made any unlawful payment or given, offered, promised, or authorized or agreed to give, any money or thing of value, directly or indirectly, to any Government Official in violation of any applicable Anti-Corruption Laws. (c) For the past three (3) years, the has not been convicted of violating any Anti- Corruption or Sanctions Law or been the subject of any Proceeding by a Governmental Authority for any potential corruption, fraud or violation of any Anti-Corruption Law or Sanctions Law, as applicable or received from any Governmental Authority any written notice or inquiry, made any voluntary or involuntary disclosure to a Governmental Authority, or conducted any internal investigation or audit, in each case concerning any actual or potential violation or wrongdoing related to Anti-Corruption Laws or Sanctions Laws. 5.17 Transactions With Affiliates. Except for any such arrangements that will be terminated at or prior to Closing, (a) there are no Affiliate Contracts; and (b) no officer, employee or director of the Company or any Seller (i) is a party to any Contract, or has a business relationship, with the Company (other than any such employment or service Contract or relationship); or (ii) owns or has the right to use any material property or asset of the Company. 5.18 Brokers and Finders. Neither the Company nor any of its officers, directors or employees has engaged, as of the date hereof, any Person or incurred any liability for any brokerage fees, commissions or finder’s fees in connection with the Transactions, except as set forth on Section 5.20 of the Disclosure Schedule.


 
38 US-DOCS\137120358.19 CAN_DMS: \149532846\17 5.19 No Other Representations. Notwithstanding anything contained in this Agreement to the contrary, the Company and the Sellers acknowledge and agree that none of the Purchaser or any other Purchaser Related Party or any other Person is making any representations or warranties whatsoever, express or implied, beyond those expressly made in Article VI (as modified by the Purchaser Disclosure Schedule) and the Related Documents. The Company and the Sellers further acknowledge and agree that (i) the representations and warranties of the Purchaser in Article VI (as modified by the Purchaser Disclosure Schedule) and the Related Documents constitute the sole and exclusive representations and warranties made to the Company and the Sellers in connection with the Transactions; (ii) none of the Purchaser or any other Purchaser Related Party or any other Person has made any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding Parent, the Purchaser or any of their respective Subsidiaries, or the Transaction, beyond those expressly set forth in this Agreement in Article VI (as modified by the Purchaser Disclosure Schedule) or the Related Documents; and (iii) except as expressly covered in Article VI or in the Related Documents, none of the Purchaser or any other Purchaser Related Party or any other Person will have or be subject to any liability to the Sellers, the Company or any other Person resulting from the distribution to the Sellers or their respective representatives or the Sellers’ use of any such information, including (A) any confidential information memoranda and/or management presentations (including responses to any questions, whether oral or written) distributed on behalf of the Purchaser or any of its Affiliates relating to Parent, the Purchaser or any of their respective Subsidiaries or other publications or data room information provided to the Sellers or their respective representatives, or any other document, information or projection in any form provided to the Sellers or their respective representatives in connection with the Transaction; (B) the pro-forma financial information, projections or other forward-looking statements of Parent, the Purchaser or any of their respective Subsidiaries; (C) any information delivered or made available pursuant to the Confidentiality Agreement; or (D) any other information or documents made available to the Sellers, the Company or any of their respective Affiliates or representatives with respect to Parent, the Purchaser and their respective Subsidiaries in any online data room established by the Purchaser or its Affiliates, in each case in expectation or furtherance of the Transactions. Notwithstanding anything the foregoing, nothing in this Section 5.19 shall limit any Purchaser Related Party’s liability for Fraud. ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE PURCHASER PARTIES Except as disclosed in the Parent SEC Reports (with the exception of Purchaser Fundamental Representations), or in the disclosure schedule of even date herewith delivered by Purchaser (the “Purchaser Disclosure Schedule”), the Purchaser Parties hereby makes the representations and warranties contained in this Article VI to the Company and the Sellers: 6.1 Organization; Good Standing; Qualification. (a) Parent is a corporation, duly incorporated, validly existing and in good standing under the Laws of the State of Delaware and has the requisite power and authority to own, lease and operate its properties, assets and rights and to carry on its business as currently conducted.


 
39 US-DOCS\137120358.19 CAN_DMS: \149532846\17 (b) The Purchaser is a unlimited liability company, duly organized, validly existing and in good standing under the Laws of the Province of British Columbia and has the requisite power and authority to own, lease and operate its properties, assets and rights and to carry on its business as currently conducted. (c) Parent is qualified to do business and is in good standing (with respect to jurisdictions that recognize the concept of good standing) as a foreign corporation or other legal entity in each jurisdiction where the ownership, leasing or operation of its assets, properties, rights or the conduct of its business requires such qualification, except where the failure to be so organized, validly existing, qualified, in good standing or to have such power or authority would not, individually or in the aggregate, have a material adverse effect on the ability of Parent to consummate the Transactions in accordance with the terms of this Agreement. (d) The Purchaser is qualified to do business and is in good standing (with respect to jurisdictions that recognize the concept of good standing) as a foreign corporation or other legal entity in each jurisdiction where the ownership, leasing or operation of its assets, properties, rights or the conduct of its business requires such qualification, except where the failure to be so organized, validly existing, qualified, in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Purchaser to consummate the Transactions in accordance with the terms of this Agreement . 6.2 Capital Structure. (a) As of the date of this Agreement, the authorized capital stock of Parent consists of 1,000,000,000 shares of Class A common stock, par value $0.0001 per share (the “Parent Class A Common Stock”), 10,000,000 shares of Class B common stock, par value $0.0001 per share (the “Parent Class B Common Stock”), 50,000,000 shares of Parent Class X Common Stock, par value $0.0001 per share (the “Parent Class X Common Stock”) and 100,000,000 shares of preferred stock, par value $0.0001 per share (the “Parent Preferred Stock” and collectively, the “Parent Shares”). As of December 29, 2022, (i) 266,882,880 shares of Parent Class A Common Stock are issued and outstanding, (ii) no shares of Parent Class B Common Stock are issued and outstanding, (iii) 34,534,930 shares of Parent Class X Common Stock are issued and outstanding, (iv) no shares of Parent Preferred Stock are issued and outstanding; (v) no Parent Shares are held in the treasury, (vi) 8,853,658 Parent Options are issued and outstanding and (vii) 24,435,550 Parent restricted stock units are issued and outstanding. All of the issued and outstanding Parent Shares are validly issued, fully paid and non-assessable and have been issued and granted in compliance in all material respects with all applicable Laws (including federal and state securities laws). Except as set forth in Section 6.2(a) or the 8,853,658 Parent Options issued and outstanding pursuant to Parent’s 2021 Incentive Award Plan, Parent’s 2021 Employee Stock Purchase Plan or Parent’s Amended and Restated 2017 Stock Plan, Parent has not granted any options, warrants, rights, “phantom” rights or other securities convertible into or exchangeable or exercisable for Parent Shares, , there are no other Contracts providing for the issuance of additional Parent Shares or for the repurchase or redemption of Parent Shares. As of the date of this Agreement, except as set forth in this Section 6.2(a), no other class of interests of Parent is authorized, issued or outstanding. From the close of business on the date of this Agreement to the Closing Date, there will be no issuances of any Parent Equity Interests, other


 
40 US-DOCS\137120358.19 CAN_DMS: \149532846\17 than the issuance of Parent Class A Common Stock upon the exercise of Parent Options outstanding as of the date of this Agreement. (b) The Notes and the shares of Parent Class A Common Stock to be issued as the Closing Consideration to Sellers, when issued and delivered in accordance with the terms of this Agreement, and the issuance of the shares of Parent Class A Common Stock issuable upon conversion of the Notes, will have been duly authorized and validly issued, fully paid and nonassessable and free and clear of any Liens (other than restrictions on transfer arising pursuant to federal and state securities laws and restrictions arising under this Agreement and the Organizational Documents of Parent, as applicable) and will not have been issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under applicable Law or the Organizational Documents of Parent. (c) The Purchaser Parties do not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the equityholders of the Purchaser Parties on any matter. 6.3 Corporate Authority; Approval. The Purchaser Parties have all requisite power and authority to enter into and have taken all corporate action necessary to execute, deliver and perform their obligations under this Agreement and each other agreement, document, instrument or certificate contemplated by this Agreement or the Related Documents to be executed by the Purchaser in connection with the consummation of the Transactions and to consummate the Transactions (other than the Parent Stockholder Approval). This Agreement and each of the Related Documents to which the Purchaser Parties are party have been duly executed and delivered by the Purchaser Parties and, assuming the due authorization, execution and delivery hereof and thereof by the Company and the Sellers, as applicable, constitutes a valid and binding obligation of the Purchaser Parties enforceable against the Purchaser Parties in accordance with its terms, except as enforceability is subject to the Bankruptcy and Equity Exception. 6.4 Governmental Filings; No Violations; Certain Contracts. (a) Except as disclosed in Section 6.4(a) of the Disclosure Schedule, no notices, reports or other filings are required to be made by the Purchaser Parties with, nor are any consents, registrations, approvals, permits or authorizations required to be obtained by the Purchaser Parties from any Governmental Authority in connection with the execution, delivery and performance of this Agreement by the Purchaser Parties and the consummation of the Transactions, except those that the failure to make or obtain, as the case may be, would not, individually or in the aggregate, have a material adverse effect on the ability of the Purchaser Parties to consummate the Transactions in accordance with the terms of this Agreement. (b) The execution, delivery and performance of this Agreement by the Purchaser Parties do not constitute or result in (i) a breach or violation of, or a default under, the Organizational Documents of the Purchaser Parties; or (ii) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) or default under, the creation, cancellation, acceleration, loss, impairment or alteration or other change of any rights, benefits or obligations under, result in the payment of any fee under, or the creation of a Lien on any of the


 
41 US-DOCS\137120358.19 CAN_DMS: \149532846\17 assets, properties or rights of the Purchaser Parties pursuant to, any Contract, or assuming (solely with respect to performance of this Agreement and consummation of the Transactions) compliance with the matters referred to in Section 6.4(a), under any Law or Permit to which the Purchaser Parties is subject, except, in the case of clause (ii), for any such breach, violation, termination, default, creation, cancellation, acceleration, loss, impairment, alteration, change, fee or Lien that would not, individually or in the aggregate, have a material adverse effect on the ability of the Purchaser Parties to consummate the Transactions in accordance with the terms of this Agreement. 6.5 Financial Statements; Undisclosed Liabilities; Internal Controls; SEC Reports. (a) Parent has timely filed or furnished all Parent SEC Reports. The Parent SEC Reports were prepared in accordance with the requirements of the Securities Act and the Exchange Act, as the case may be, and the rules and regulations thereunder. The Parent SEC Reports did not at the time they were filed with the SEC contain any untrue statements of material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. Parent maintains disclosure controls and procedures required by Rule 13a-15(e) or 15d-15(e) under the Exchange Act. Each director and executive officer of Parent has filed with the SEC all statements required with respect to Parent by Section 16(a) of the Exchange Act and the rules and regulations thereunder. (b) The financial statements contained in the Parent SEC Reports have been prepared from the books and records of Parent and its Subsidiaries and present fairly, in all material respects, the consolidated financial position of Parent as of and for the periods indicated therein in accordance with GAAP and Regulation S-X and Regulation S-K, as applicable, except as may be indicated in the notes thereto and subject, in the case of interim financial statements, to the absence of footnotes and other presentation items and year-end adjustments. Parent does not have any off- balance sheet arrangements that are not disclosed in the Parent SEC Reports. No financial statements other than those contained in the Parent SEC reports are required by GAAP to be included in the consolidated financial statements of Parent. There are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Parent SEC Reports. Parent has not received any verbal communication or other notice from the SEC indicating that any of the Parent SEC Reports filed on or prior to the date hereof is subject to ongoing SEC review or investigation. (c) Parent is not subject to any material liability or obligation of any nature required by GAAP to be reflected on a consolidated balance sheet of Parent, whether accrued, absolute, determined, determinable, fixed or contingent, except for those liabilities and obligations (i) disclosed, reflected or reserved against or provided for in the financial statements contained in the Parent SEC Reports; (ii) incurred in the ordinary course of business consistent with past practice since the date of September 30, 2022; (iii) as contemplated by this Agreement, the Related Documents or otherwise incurred in connection with the Transactions; (iv) as they relate to Taxes; or (v) that would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the Purchaser Parties’ ability to consummate the Transactions in accordance with the terms of this Agreement.


 
42 US-DOCS\137120358.19 CAN_DMS: \149532846\17 (d) There are no outstanding loans or other extensions of credit made by Parent to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of Parent, and Parent has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act. 6.6 Absence of Certain Changes. Except (x) as set forth on Section 6.6 of the Purchaser Disclosure Schedule; (y) as required by applicable Law or Contract to which any of the Purchaser Parties or their Subsidiaries is bound; or (z) as otherwise contemplated by this Agreement or any of the Related Documents to which Parent is party, since September 30, 2022, Parent has not: (a) amended in any material respect the Organizational Documents of Parent in a manner that would reasonably be expected to (i) materially impair the rights of the Sellers who receive Closing Consideration pursuant to Section 2.4 with respect to the Closing Consideration relative to other holders of Notes and shares of Parent Class A Common Stock with respect to such Notes and shares of Parent Class A Common Stock; or (ii) prevent or materially impair the ability of the Purchaser Parties to perform their obligations under this Agreement or the Related Documents to which the Purchaser Parties are party or to consummate the Transactions; (b) made, declared, set aside or paid any dividends on, or made any other distribution (whether in cash, equity interests or property) in respect of any of the outstanding Equity Interests of Parent, in each case, other than in respect of regular quarterly cash dividends or with respect to tax-related distributions; (c) adopted or entered into any plan of complete or partial liquidation or dissolution of, or otherwise liquidate, dissolve or wind up the operations of, Parent, Purchaser or any of their respective Subsidiaries; or (d) committed or agreed to take any of the foregoing actions. 6.7 Litigation. There are no material Proceedings pending or, to the Knowledge of the Purchaser Parties, threatened against the Purchaser Parties which, if determined adversely, would, individually or in the aggregate, have a material adverse effect on the ability of the Purchaser Parties to consummate the Transactions in accordance with the terms of this Agreement. 6.8 Brokers and Finders. Other than FTI Capital Advisors, LLC and Stout Risius Ross, LLC, the Purchaser has not engaged any broker or finder or incurred any liability for any brokerage fees, commissions or finder’s fees in connection with the Transactions. 6.9 Compliance with Laws. Parent and each of its Subsidiaries is in possession of all material Permits required under applicable Law for the current operation of its business and all such Permits are in full force and effect, except where the failure to have such Permits would not, individually or in the aggregate, materially and adversely affect the Purchaser and its Subsidiaries, taken as a whole. The Purchaser Parties are in compliance with any and all Laws applicable to it except where the failure to so comply would not, individually or in the aggregate, material adverse effect on the ability of the Purchaser to consummate the Transactions in accordance with the terms of this Agreement. 6.10 Investment Intent. The Purchaser is acquiring the Company Shares for its own account, for investment only, and not with a view to any resale or distribution thereof. The


 
43 US-DOCS\137120358.19 CAN_DMS: \149532846\17 Purchaser acknowledges that (a) such Company Shares have not been registered under the Securities Act, or any state securities laws; and are being transferred pursuant to an exemption from the prospectus requirements of Canadian Securities Laws and the Purchaser is aware that the Purchaser may not be able to resell such securities in Canada, except in accordance with limited exemptions under Canadian Securities Laws, (b) there is no public market for such Company Shares and there can be no assurance that a public market shall develop; and (c) the Purchaser must bear the economic risk of its investment made pursuant to the Transactions for an indefinite period of time. The Purchaser is an “accredited investor” within the meaning of Section 1.1 of National Instrument 45-106 or section 73.3 of the Securities Act. (Ontario) and fulfills the requirements of section 2.3 of NI 45-106 or section 73.3 of the Securities Act (Ontario). 6.11 Access and Information. The Purchaser acknowledges and agrees that it has conducted to its satisfaction an independent investigation and verification of the financial condition, results of operations, assets, liabilities, properties and projected operations of the Company and its business, and, in making their determination to proceed with the Transactions, the Purchaser and its Non-Party Affiliates have relied solely on the results of such independent investigation and verification and on the representations and warranties of the Company expressly and specifically set forth in Article V (as qualified by the Disclosure Schedule). The Purchaser is knowledgeable about the industries in which the Company operate, is capable of evaluating the merits and risks of the Transactions and is able to bear the substantial economic risk of such investment for an indefinite period of time. Notwithstanding the foregoing, nothing in this Section 6.11 shall limit any Seller Related Party’s liability for Fraud. 6.12 Taxes. (a) The Purchaser Parties have timely filed or caused to be filed with appropriate Taxing Authorities all income and other material Tax Returns required to be filed by or on behalf of them (taking into account extensions). All such Tax Returns are true, correct and complete in all material respects. The Purchaser Parties have timely paid all income and other material Taxes that are due and owing or otherwise required to be paid by them (whether or not shown to be due and payable on any Tax Return). (b) No assessments or reassessments of the Taxes of the Purchaser Parties are currently the subject of an objection or appeal, there are no Proceedings that are pending or threatened in writing against the Purchaser Parties in respect of any Taxes or Tax Returns and there are no matters under audit or appeal with any Governmental Authority relating to Taxes or Tax Returns of the Purchaser Parties. (c) No written claim has been received by the Purchaser Parties from any Taxing Authority in a jurisdiction where such Person does not file a Tax Return asserting that such Person is or may be subject to taxation by that jurisdiction that would be the subject of such Tax Return, which claim has not been settled or subsequently withdrawn. (d) There are no Liens for Taxes upon any assets, properties or rights of the Purchaser Parties, except for liens for Taxes not yet due and payable.


 
44 US-DOCS\137120358.19 CAN_DMS: \149532846\17 (e) There are no outstanding waivers to extend the statutory period of limitations or other similar limitations period with respect to Taxes for which the Purchaser Parties are liable. (f) Neither Purchaser Party is a party to any Tax sharing, allocation, indemnity or similar agreement or arrangement (other than customary commercial agreements, the primary purpose of which does not relate to Taxes and that were entered into in the ordinary course of business). Neither Purchaser Party has any material liability for the Taxes of another Person (other than a Person that is a member of a group the common parent of which is the Parent) as a successor or transferee or under applicable Law (including as a result of its participation in any combined, consolidated, affiliated or similar Tax group at any time prior to the Closing). (g) The Purchaser Parties have complied in all material respects with all Laws relating to escheat and abandoned or unclaimed property. (h) The Purchaser Parties and have duly and timely withheld or collected all material Taxes required by Law to be withheld or collected by them, and has duly and timely remitted to the appropriate Governmental Authority such Taxes as required by Law. (i) No Purchaser Party has claimed or received an amount in respect of a Tax credit, refund, rebate, government grant or subsidy pursuant to any COVID-19 Government Assistance (if any), to which it is not fully entitled. 6.13 Condition of Business; No Other Representations. Notwithstanding anything contained in this Agreement to the contrary, the Purchaser acknowledges and agrees that none of the Sellers, the Company or any other Seller Related Party or any other Person is making any representations or warranties whatsoever, express or implied, beyond those expressly made in Article IV or Article V (each as modified by the Disclosure Schedule) or the Related Documents. The Purchaser further acknowledges and agrees that (i) the representations and warranties of each Seller in Article IV and the Company in Article V (each as qualified by the Disclosure Schedule) or in the Related Documents constitute the sole and exclusive representations and warranties made to the Purchaser in connection with the Transactions; (ii) none of the Sellers, the Company or any other Seller Related Party or any other Person has made any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding the Company, or the Transaction, beyond those expressly set forth in this Agreement in Article IV and Article V (each as modified by the Disclosure Schedule) or in the Related Documents; and (iii) except as expressly covered in Article IV or Article V or in the Related Documents, none of the Sellers, the Company or any other Seller Related Party or any other Person will have or be subject to any liability to the Purchaser or any other Person resulting from the distribution to the Purchaser or its representatives or the Purchaser’s use of any such information, including (A) any confidential information memoranda and/or management presentations (including responses to any questions, whether oral or written) distributed on behalf of the Company or any of its Affiliates relating to the Company or other publications or data room information provided to the Purchaser or its representatives, or any other document, information or projection in any form provided to the Purchaser or its representatives in connection with the Transaction; (B) the pro-forma financial information, projections or other forward-looking statements of the Company; (C) any information delivered or made available pursuant to the Confidentiality Agreement; or (D) any other information or


 
45 US-DOCS\137120358.19 CAN_DMS: \149532846\17 documents made available to the Purchaser or any of its Affiliates or representatives with respect to the Company in any online data room established for the sale of the Company, in each case in expectation or furtherance of the Transactions. Notwithstanding the foregoing, nothing in this Section 6.13 shall limit any Seller Related Party’s liability for Fraud. ARTICLE VII COVENANTS 7.1 Further Assurances. From and after the Closing, upon the reasonable request and at the cost and expense, if any, of the other Party, each Party shall use reasonable best efforts to execute, acknowledge and deliver all such additional instruments and other documents and take, or cause to be taken, such further actions as may be reasonably required or necessary to carry out the Transactions. 7.2 Director and Officer Liability and Indemnification. At or prior to the Closing, the Company shall purchase or cause to be purchased a six (6) year “tail” prepaid directors’ and officers’ liability insurance policy, effective as of the Closing, providing, for a period of six (6) years after the Closing, the coverage and amounts, and terms and conditions, substantially comparable to the current policies of directors’ and officers’ liability insurance maintained by or on behalf of the Company as of the date hereof with respect to claims arising from facts or events that occurred at or prior to the Closing (the “D&O Tail Policy”), and the costs payable in connection with such policy shall be borne shall be borne fifty percent (50%) by Purchaser and Parent, on the one hand, and fifty percent (50%) by the Sellers, on the other hand. From and after the Closing, the Company shall continue to honor its obligations under any such insurance procured pursuant to this Section 7.2. 7.3 Access to Books and Records. For a period of seven (7) years from the Closing Date (or such longer time as may be required by applicable Law), the Purchaser shall, and shall cause the Company to, provide the Sellers’ Representative and its authorized representatives with reasonable access (for the purpose of examining and copying at the Sellers’ Representative’s expense), at reasonable times and upon reasonable notice, to the books and records, including the information, records and documents relating to Taxes of the Company with respect to periods prior to the Closing, in each case, only (a) to the extent necessary for the Sellers or their Affiliates to comply with applicable Laws or Orders or to comply with an audit or investigation from a Governmental Authority; (b) in connection with a Proceeding brought by a Governmental Authority or other third party against any Seller or its Affiliates; or (c) to determine the rights and obligations of any Seller or its Affiliates under this Agreement or the Related Documents or in connection with the Transactions; provided, however, that the Sellers’ Representative shall conduct any such activities in a manner that does not unreasonably interfere with the business or operations of the Purchaser and its Affiliates. 7.4 Tax Matters. (a) Cooperation. Purchaser and Sellers shall provide reasonable cooperation, as and to the extent reasonably requested by the other Party, in connection with the preparation and filing of any Tax Return of the Company and any audit, litigation or other proceeding with


 
46 US-DOCS\137120358.19 CAN_DMS: \149532846\17 respect to Taxes of the Company for Pre-Closing Tax Periods. Such reasonable cooperation shall include the retention and (upon the other Party’s reasonable request) the provision of records and information that are in a Party’s possession or control and powers of attorney and similar authorizations which are reasonably required with respect to any such Tax Return, audit, litigation or other proceeding. Sellers and Purchaser further agree, upon reasonable request, to use their commercially reasonable efforts to obtain any certificate or other document from any Taxing Authority or any other Person as may be necessary to mitigate, reduce or eliminate any Tax that could be imposed with respect to the Company or the transactions contemplated hereby. (b) Straddle Period Allocation. For purposes of this Section 7.4, or as is otherwise necessary or relevant for purposes of this Agreement in the case of any Tax (or Tax refund or credit) imposed on the Company with respect to a Straddle Period, (i) for any real, personal or intangible property Tax, the portion of such Tax that is allocable to the Pre-Closing Tax Period shall equal the amount of such Tax for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the portion of the Straddle Period ending on the Closing Date and the denominator of which is the total number of days in the Straddle Period; and (ii) for any other Tax not described in clause (i), the portion of such Tax that is allocable to the portion of the pre-Closing portion of the Straddle Period shall be determined based on an interim closing of the books as of the end of the Closing Date (and for such purpose, the Tax period of any partnership or other pass-through entity in which the Company holds a beneficial interest shall be deemed to terminate at such time), except that exemptions, allowances or deductions that are calculated on an annual basis (including depreciation and amortization deductions) shall be allocated between the pre-Closing portion of the Straddle Period and the post- Closing portion of the Straddle period on a daily basis. (c) Tax Sharing Agreements. All Tax indemnity, allocation or sharing agreements or similar contracts between the Company, on the one hand, and the Sellers and their Affiliates (other than the Company), on the other hand, shall be terminated prior to the Closing Date, and, after the Closing Date, the Parties will take such actions as are required before or after the Closing Date such that the Company shall not be bound thereby or have any liability thereunder. The agreements to be cancelled pursuant to this Section 7.4(c) are set forth on Section 7.4(c) of the Disclosure Schedule. (d) Note Ownership. Each Seller agrees that it will directly receive and hold its own Pro Rata Percentage of the Closing Consideration on a several basis, and that such Seller does not have any plan or intention to contribute the Notes that it receives in connection with the transactions contemplated by this Agreement into any partnership or other common holding vehicle that would hold Notes owned by such Seller and any other holder of Notes. 7.5 Voting Agreement. At the Closing and immediately following the issuance of all of the Notes to be issued under the Note Purchase Agreement pursuant to the terms thereof, Parent, the Requisite Parent Company Stockholder and certain of the Sellers or their respective Affiliates shall enter into the Voting Agreement, pursuant to which, among other things, and subject to the terms and conditions set forth therein: (a) the Sellers or their Affiliates will have the right to designate five (5) directors in the aggregate to the board of directors of Parent and (b) the Requisite Parent Company Stockholder will agree to vote in favor of such director designees at any annual


 
47 US-DOCS\137120358.19 CAN_DMS: \149532846\17 or special meeting of the stockholders of Parent, or by written consent or otherwise, so as to cause the election of such designees to the board of directors of Parent. 7.6 Employment Agreements. Except for those employment agreements described in Section 3.2(e) hereto, the Purchaser and the Sellers will work in good faith to execute employment agreements with certain key employees of the Company to be mutually agreed between the Purchaser and the Sellers. 7.7 Release. Effective as of the Closing, each of the Sellers and the Sellers’ Representatives and each of their respective Affiliates and each of their current and former officers, directors, employees, equityholders, partners, members, advisors, successors and assigns (collectively, in their capacity as such, the “Releasing Parties”)) irrevocably and unconditionally releases and forever discharges each of the Purchaser Parties and their respective Affiliates and each of their respective current and former officers, directors, employees, equityholders, partners, stockholders, members, agents, successors and assigns (collectively, the “Released Parties”) of and from any and all actions, causes of action, suits, proceedings, executions, judgments, duties, debts, dues, accounts, bonds, contracts and covenants (whether express or implied), and claims and demands whatsoever whether in law or equity which the Releasing Parties may have against each of the Released Parties, now or in the future, in each case in respect of or relating to the action commenced in the Ontario Superior Court of Justice (Court File No. CV-21-00085739-0000), for which the Company was named as a liable party, claiming damages for personal injury suffered in an accident that was alleged to be caused by a deteriorated scooter (the “Released Claims”), and each of the Releasing Parties hereby agrees not to sue or bring any action in respect of the Released Claims. Without limiting the foregoing, each of the Releasing Parties expressly waives and releases (on behalf of the Released Parties) any and all rights and benefits under Section 1542 of the California Civil Code (or any analogous law of any other state), which reads as follows: “A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” Notwithstanding anything to the contrary, nothing contained in this Section 7.7 shall operate to release any Released Party with respect to (i) any claim, right or other action arising out of or relating to this Agreement, any Related Documents or the Transactions (including any claim for indemnification that any Purchaser Related Party or Seller Related Party may be entitled to bring against any Person pursuant to Article VIII); or (ii) any claim involving Fraud. The Released Parties to whom this Section 7.7 applies shall be third-party beneficiaries of this Section 7.7. ARTICLE VIII SURVIVAL AND INDEMNIFICATION 8.1 Survival of Representations, Warranties and Covenants. Each of the representations and warranties contained in this Agreement shall survive the Closing and remain in full force and effect until 11:59 p.m. Pacific Standard Time on the date that is eighteen (18) months after the


 
48 US-DOCS\137120358.19 CAN_DMS: \149532846\17 Closing Date, other than (a) the Company Fundamental Representations and the Purchaser Fundamental Representations, which shall survive the Closing and remain in full force and effect until the date that is twenty-four (24) months following the Closing and (b) the representations and warranties set forth in Section 5.19 and Section 6.13, which shall survive the Closing and remain in full force and effect indefinitely. Each covenant or agreement of the Parties contained in this Agreement, which contemplates any performance after the Closing (each, a “Post-Closing Covenant”), shall survive until the last date for performance of such covenant or agreement as provided in this Agreement. A claim for breach of any such representation, warranty or covenant may be brought at any time within the applicable survival period set forth herein. Notwithstanding the foregoing (x) any breach of any representation, warranty, covenant or agreement in respect of which indemnification may be sought pursuant to this Article VIII shall survive the date on which it would otherwise terminate pursuant to this Section 8.1 if notice of the breach thereof giving rise to such right of indemnification shall have been given to the Person against whom such indemnification may be sought prior to such date and (y) nothing in this Section 8.1 shall limit any Party’s liability for Fraud. 8.2 Indemnification by the Sellers. (a) Subject to the limitations set forth in this Article VIII, each of the Sellers shall, severally and not jointly, indemnify and hold harmless, and pay and reimburse, each of the Purchaser Related Parties against and from any and all Losses which any Purchaser Related Party may incur or suffer to the extent such Losses arise out of, result from or relate to any breach or failure to be true and correct of any representation or warranty made by such Seller in Article IV. (b) Subject to the limitations set forth in this Article VIII, the Sellers shall, severally and not jointly, in accordance with their respective Pro Rata Percentages, indemnify and hold harmless, and pay and reimburse, each of the Purchaser Related Parties against and from any and all Losses which any Purchaser Related Party may incur or suffer to the extent such Losses arise out of, result from or relate to: (i) any breach or failure to be true and correct of any representation or warranty made by the Company in Article V; and/or (ii) any breach, failure or non-fulfillment of any Post-Closing Covenant of the Seller Related Parties. (c) The Purchaser Related Parties shall not be entitled to indemnification in respect of Claims for Losses made under Section 8.2(a) and Section 8.2(b)(i) (other than with respect to breaches of Company Fundamental Representations) unless the aggregate amount of all such Losses exceeds $1,000,000 (the “Basket”), in which case, subject to Section 8.2(d), the Seller Related Parties shall be required to pay or be liable for the entire amount of all such Losses in excess of the Basket. Notwithstanding the foregoing, the limitations on indemnification included in this Section 8.2(c) shall not apply in the case of Fraud by or on behalf of the Sellers or the Company. (d) The aggregate indemnification amount to which the Purchaser Related Parties shall be entitled in respect of Claims for Losses made under Section 8.2(a) and Section


 
49 US-DOCS\137120358.19 CAN_DMS: \149532846\17 8.2(b)(i) (other than with respect to breaches of Company Fundamental Representations of the Sellers or the Company, as applicable) shall not exceed $3,200,000 (the “Cap”). Notwithstanding the foregoing, the Cap shall not apply in respect of Claims for Losses made under (i) Section 8.2(a) and Section 8.2(b)(i) with respect to Company Fundamental Representations of the Sellers and the Company or under (ii) Section 8.2(b)(ii), which shall not exceed the Purchase Price. Notwithstanding the foregoing, the limitations on indemnification included in this Section 8.2(d) shall not apply in the case of Fraud by or on behalf of the Sellers or the Company. (e) Limitations on Losses. Each of the Sellers shall not be liable to any Purchaser Related Parties for: (i) any consequential, indirect or special Losses; (ii) any Losses for loss of profits or diminution in value; or (iii) punitive Losses. except, in each case, to the extent such Losses are (x) actually paid or payable to any third party or (y) the natural, probable or reasonably foreseeable result of any of the matters set forth in Section 8.2(a) or Section 8.2(b). 8.3 Indemnification by the Purchaser Parties (a) Subject to the limitations set forth in this Article VIII, the Purchaser Parties shall indemnify and hold harmless, and pay and reimburse, each of the Seller Related Parties against and from any and all Losses which any Seller Related Party may incur or suffer to the extent such Losses arise out of, result from or relate to any breach or failure to be true and correct of any representation or warranty made by the Purchaser Parties in Article VI. (b) Subject to the limitations set forth in this Article VIII, the Purchaser Parties shall indemnify and hold harmless, and pay and reimburse, each of the Seller Related Parties against and from any and all Losses which any Seller Related Party may incur or suffer to the extent such Losses arise out of, result from or relate to any breach, failure or non-fulfillment of any Post-Closing Covenants of the Purchaser Related Parties. (c) The Seller Related Parties shall not be entitled to indemnification in respect of Claims for Losses made under Section 8.3(a) (other than with respect to breaches of Purchaser Fundamental Representations) unless the aggregate amount of all such Losses exceeds the Basket, in which case, subject to Section 8.3(d), the Purchaser Related Parties shall be required to pay or be liable for the entire amount of all such Losses in excess of the Basket. Notwithstanding the foregoing, the limitations on indemnification included in this Section 8.3(c) shall not apply in the case of Fraud by or on behalf of the Purchaser Parties. (d) The aggregate indemnification amount to which the Seller Related Parties shall be entitled in respect of Claims for Losses made under Section 8.3(a) (other than with respect to breaches of Purchaser Fundamental Representations) shall not exceed the Cap. The aggregate indemnification amount to which the Seller Related Parties shall be entitled in respect of Claims for Losses under Section 8.3(a) with respect to breaches of Purchaser Fundamental


 
50 US-DOCS\137120358.19 CAN_DMS: \149532846\17 Representations and Section 8.3(b) shall not exceed the Purchase Price. Notwithstanding the foregoing, the limitations on indemnification included in this Section 8.3(c) shall not apply in the case of Fraud by or on behalf of the Purchaser Parties. (e) Limitations on Losses. The Purchaser Parties shall not be liable to any Seller Related Parties for: (i) any consequential, indirect or special Losses; (ii) any Losses for loss of profits or diminution in value; or (iii) punitive Losses. except, in each case, to the extent such Losses are (x) actually paid or payable to any third party or (y) the natural, probable or reasonably foreseeable result of any of the matters set forth in Section 8.3(a) or Section 8.3(b). 8.4 Unpaid Amounts. Notwithstanding anything herein to the contrary, if any Seller or any of its Seller Related Parties fails to make any payment required to be made pursuant to this Agreement (including pursuant to this Article VIII) (an “Unpaid Amount”) when due, then, the Purchaser shall have the right to recover such Unpaid Amount owed or payable to it or in respect of any Purchaser Related Party hereunder (including any Losses), at the Purchaser’s discretion (in lieu of any direct payment obligations of such Seller or its Seller Related Parties), by (a) requiring such Seller or its Affiliates, as applicable, to reduce the principal amount of the Notes by an amount equal to such Unpaid Amount and/or to transfer and deliver to the Purchaser for no consideration a number of underlying shares of Parent Class A Common Stock held by such Seller or its Affiliates, as applicable, at such time with a value equal to such Unpaid Amount and (b) offsetting such Unpaid Amounts against any amounts owed or payable by the Purchaser, Parent or the Company or any of its Subsidiaries to such Seller or any of its Affiliates at such time or in the future (including PIK and any other interest payments in respect of the Notes). 8.5 Claims. In the event that any Purchaser Related Party or Seller Related Party (each such Person, in its capacity as such, an “Indemnified Party”) claims that it may be entitled to indemnification from a Seller Related Party or Purchaser Related Party, as applicable (each such Person, in its capacity as such, an “Indemnifying Party”) under this Article VIII, Purchaser or the Sellers’ Representative shall give prompt written notice to the other Party of each matter, action, cause of action, claim, demand, fact or other circumstances upon which a claim for indemnification (a “Claim”) hereunder may be based. Such notice shall contain, with respect to each Claim, such facts and information as are then reasonably available, including the estimated amount of Losses (to the extent estimable at such time) and the basis for indemnification hereunder. Failure to give prompt notice of a Claim hereunder shall not affect the Indemnifying Party’s obligations hereunder, except to the extent (and only to the extent) the Indemnifying Party is materially prejudiced by such failure. 8.6 Defense of Proceedings. The Indemnified Party shall permit the Indemnifying Party, at the Indemnifying Party’s option and expense, to assume the defense of any Claim based on any Proceeding by any third party with counsel reasonably satisfactory to the Indemnified Party; provided, however, that the Indemnifying Party provides written notice to the Indemnified


 
51 US-DOCS\137120358.19 CAN_DMS: \149532846\17 Party of its election to assume the defense of such Claim within thirty (30) days of receiving written notice of such Claim from the Indemnified Party pursuant to Section 8.5; provided, further, that the Indemnifying Party shall not be entitled to assume the defense of such Claim if (a) the Claim relates to any criminal or quasi-criminal matter or seeks injunctive or other equitable relief that the Indemnified Party reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages, provided that if any portion of the claim can be so separated from the related claim for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages, (b) the Claim relates to Tax matters and the Indemnifying Party is reasonably expected to bear no greater than fifty percent (50%) of all Losses incurred in connection with such Claim (and, provided, further, that the Parties shall reasonably cooperate to separate matters that are the subject of indemnification hereunder and any Losses in connection with which will be borne by the Indemnifying Party (which may be subject to the control of the Indemnifying Party subject to the terms of this Agreement) and matters that are not subject to indemnification hereunder (which shall not be subject to the control of the Indemnifying Party)) or (c) the Indemnified Party shall have reasonably concluded, after conferring with its outside counsel, that an actual or potential conflict of interest exists between the Indemnifying Party or any of its Affiliates, on the one hand, and the Indemnified Party, on the other hand, that would make separate representation advisable. Notwithstanding the foregoing, the Indemnifying Party shall not, in the defense of any such Proceeding, except with the prior written consent of the Indemnified Party (which consent will not be unreasonably withheld, delayed or conditioned), consent to the entry of any Order or enter into any settlement which (x) provides for any relief other than the payment of monetary damages that are subject to indemnification hereunder, or (y) does not include as an unconditional term thereof the giving by the third-party claimant to the Indemnified Party of a release from all liability in respect thereof. After notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Proceeding, (A) the Indemnifying Party shall be liable to the Indemnified Party only for such legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof at the request of the Indemnifying Party (provided, however, for the avoidance of doubt, that the Indemnifying Party shall pay as incurred the fees and expenses of separate counsel for the Indemnified Party if (i) the use of counsel chosen by the Indemnifying Party to represent both the Indemnifying Party and such Indemnified Party would present such counsel with an actual or potential conflict of interest; (ii) the Indemnified Party has not engaged reasonably satisfactory counsel to represent the Indemnified Party within a reasonable time after notice of the institution of such Proceeding; or (iii) the Indemnified Party has, by written instruction to the Indemnified Party, authorized the Indemnified Party to engage separate counsel at the expense of the Indemnifying Party), (B) the Indemnified Party may hire separate counsel at its own expense and may participate in the defense of such Proceeding and shall reasonably cooperate in such defense, but shall have no right to control such defense and (C) the Indemnifying Party shall keep the Indemnified Party reasonably advised of the status of such Proceeding and the defense thereof and shall consider in good faith recommendations made by the Indemnified Party with respect thereto. As to those third-party Proceedings with respect to which the Indemnifying Party does not elect, or is not entitled, to assume control of the defense, the Indemnified Party will afford the Indemnifying Party an opportunity to participate in such defense, at its own cost and expense, and will consult with the Indemnifying Party prior to settling or otherwise disposing of any of the same. The Indemnified Party will not settle any Claim without the prior written consent of the Indemnifying Party (which consent will not be unreasonably withheld, delayed or


 
52 US-DOCS\137120358.19 CAN_DMS: \149532846\17 conditioned). The Indemnified Party shall reasonably cooperate with and make available to the Indemnifying Party and the Sellers’ Representative, as applicable, all relevant information in their possession or under their control) and shall take such other steps as are reasonably necessary to enable the Indemnifying Party or the Sellers’ Representative, as the case may be, to conduct such defense; provided that, in no event shall the Indemnified Party be required to breach any confidentiality obligations or attorney-client-privilege in connection with any of the foregoing. 8.7 Calculation of Damages. The amount of any Losses for which indemnification is provided under this Article VIII shall be calculated net of any amounts actually recovered or recoverable by any Indemnified Party from insurance or similar third party payors (other than an Indemnifying Party) with respect to such Losses, in each case, net of any costs, Taxes or other expenses (including attorney’s fees) incurred by such Indemnified Party in procuring such recovery; provided that an Indemnified Party’s pursuit of such recovery shall not delay such Indemnified Party from validly making, or seeking recovery, and obtaining payment for any claim for indemnification under this Article VIII. If any such recoveries are received by the Indemnified Party after a payment has been made by the Indemnifying Party to the Indemnified Party with respect thereto, then the Indemnified Party shall promptly reimburse the Indemnifying Party for the amount so received or recovered. 8.8 Tax Treatment of Indemnity Payments. For Tax purposes and all purposes of this Agreement, unless otherwise required by Law, any indemnity payment under this Agreement shall be treated as an adjustment to the Final Closing Consideration. ARTICLE IX GENERAL PROVISIONS 9.1 Expenses. Except as otherwise provided in this Agreement, the Sellers, the Purchaser Parent and the Purchaser shall bear its own respective expenses incurred in connection with the negotiation and execution of this Agreement and each of the Related Documents and the consummation of the Transactions. 9.2 Submission to Jurisdiction; Consent to Service of Process; Waiver of Jury Trial. (a) The Parties hereby irrevocably submit to the exclusive jurisdiction of the Chancery Court of the State of Delaware (or, if the Chancery Court of the State of Delaware declines to accept jurisdiction, the Superior Court of the State of Delaware, or the United States District Court for the District of Delaware) over all claims, disputes or causes of action (whether in contract or tort or otherwise) that may be based upon, arise out of or relate to this Agreement or any Related Document or the negotiation, execution or performance of this Agreement or any Related Document (including any claim, dispute or cause of action, whether in contract or tort or otherwise, based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement, any Related Document or as an inducement to enter into this Agreement) and each Party hereby irrevocably agrees that all suits, actions and proceedings in respect of any such claim, dispute or cause of action, or any suit, action or proceeding related thereto (whether in contract or tort or otherwise) shall be heard and determined in such courts. The Parties hereby irrevocably waive, to the fullest extent permitted by applicable Law, any objection


 
53 US-DOCS\137120358.19 CAN_DMS: \149532846\17 that they may now or hereafter have to the laying of venue of any such suit, action or proceeding brought in such court or any defense of inconvenient forum for the maintenance of any such suit, action or proceeding. Each of the Parties agrees that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment or in any other manner provided by applicable Law. (b) Each of the Parties hereby consents to process being served by any Party to this Agreement in any suit, action or proceeding by the delivery of a copy thereof in accordance with the provisions of Section 9.6. The consents to jurisdiction and service of process set forth in Section 9.2(a) and this Section 9.2(b) shall not constitute general consents to service of process in the State of Delaware and shall have no effect for any purpose except as provided in Section 9.2(a) and this Section 9.2(b) and shall not be deemed to confer rights on any Person other than the Parties. (c) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS WHETHER ARISING IN CONTRACT OR IN TORT OR OTHERWISE. EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.2(c). 9.3 Entire Agreement. This Agreement (including the Schedules, Exhibits and Annexes hereto, the Related Documents and the Confidentiality Agreement) represents the entire understanding and agreement of the Parties with respect to the Transactions, and supersedes all prior and contemporaneous agreements, arrangements, contracts, discussions, negotiations, undertakings and understandings (whether written or oral and including any letters of intent, term sheets or other similar preliminary documents) among the Parties with respect to the Transactions. The Parties have voluntarily agreed to define their rights, liabilities and obligations with respect to the Transactions exclusively in contract pursuant to the express terms and provisions of this Agreement, the Related Documents and the Confidentiality Agreement, and the Parties expressly disclaim that they are owed any duties or are entitled to any remedies not expressly set forth in this Agreement, the Related Documents or the Confidentiality Agreement. Furthermore, the Parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, and all Parties specifically acknowledge that no Party has any special relationship with another Party that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction. Except as otherwise provided herein, the sole and exclusive remedies for any breach of the terms and provisions of this Agreement (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement) or any claim or cause of action otherwise arising out of or related to the Transactions shall be those remedies available at law or in equity for breach of contract against the parties to this Agreement only (as


 
54 US-DOCS\137120358.19 CAN_DMS: \149532846\17 such contractual remedies have been further limited or excluded pursuant to the express terms of this Agreement), and the Parties hereby agree that none of the Parties shall have any remedies or causes of action (whether in contract, tort or otherwise) for any statements, communications, disclosures, failures to disclose, or representations or warranties not explicitly set forth in this Agreement. All representations and warranties set forth in this Agreement are contractual in nature only and subject to the sole and exclusive remedies set forth herein. 9.4 Amendments and Waivers. This Agreement may be amended, supplemented or changed, and any provision hereof can be waived, only by written instrument making specific reference to this Agreement signed by duly authorized officers or representatives of the Purchaser and the Sellers’ Representative in the case of an amendment, supplement or change, or by duly authorized officer or representative of the Party against which the waiver is to operate in the case of a waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, shall be deemed to constitute a waiver by the Party taking such action of compliance with any representation, warranty, covenant or agreement contained herein. The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure or delay by any Party in exercising any right, power, privilege or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. 9.5 Governing Law. This Agreement, the Related Documents and all claims or causes of action (whether in contract or tort or otherwise) that may be based upon, arise out of or relate to this Agreement and/or any Related Document or the negotiation, execution or performance of this Agreement and/or any Related Document (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement, any Related Document and/or as an inducement to enter into this Agreement) shall be governed by and construed in accordance with the internal Laws of the State of Delaware, without giving effect to conflict-of-laws principles that might require the application of the Laws of any other jurisdiction. 9.6 Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been given (a) when delivered personally by hand (with written confirmation of receipt and accompanied by email in accordance with clause (b) of this Section 9.6); (b) when sent by email (provided, however, that no “bounce back” or similar message is received); or (c) one (1) Business Day following the day sent by overnight courier (with written confirmation of receipt and accompanied by email in accordance with clause (b) of this Section 9.6), in each case at the following addresses (or to such other address as a Party may have specified by notice given to the other Parties pursuant to this Section 9.6): If to the Company prior to the Closing, to: 161 Bay Street, Suite 2300 Toronto, ON M5J 2S1 Attention: Stewart Lyons Email: stewart.lyons@birdcanada.co


 
55 US-DOCS\137120358.19 CAN_DMS: \149532846\17 If to the Sellers or the Sellers’ Representative, to: TD Canada Trust Tower Brookfield Place, 161 Bay Street, Suite 2300, P.O. Box 222, Toronto ON M5J 2S1 Attention: John Bitove Email: bitove@obelysk.com. If to the Purchaser, or to the Company following the Closing, to: c/o Bird Global, Inc. 406 Broadway, Suite 369 Santa Monica, CA 90410 Attention: Lisa Murison Email: lisa.murison@bird.co 9.7 Severability. If any term or other provision of this Agreement is adjudicated by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any Law or public policy, that provision will be deemed separable from the remaining provisions of this Agreement, and will not affect the validity or interpretation of the other provisions of this Agreement or any Related Document, and all other terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transactions is not affected in any manner materially adverse to any Party. Upon any such adjudication that any term or provision hereof is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the Transactions are consummated as originally contemplated to the greatest extent possible. 9.8 Binding Effect; Third-Party Beneficiaries; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third-party beneficiary rights in any Person not a party to this Agreement except as contemplated in Section 7.2, Section 7.4, Article VIII, this Section 9.8 and Section 9.9. No assignment of this Agreement or of any rights, interests or obligations hereunder may be made by any Party, directly or indirectly (by operation of Law or otherwise), without the prior written consent of the other Parties and any attempted assignment without the required consents shall be void; provided, however, that the Purchaser may assign any of its rights or obligations under this Agreement to any Affiliate of the Purchaser. No assignment of any obligations hereunder shall relieve a Party of any of its obligations pursuant to this Agreement. Upon any permitted assignment, the references in this Agreement to the assigning Party shall also apply to any such assignee of such assigning Party. 9.9 No Recourse Against Non-Parties. (a) All claims or causes of action (whether in contract or in tort, in law or in equity) that may be based upon, arise out of or relate to this Agreement or any Related Document, or the negotiation, execution or performance of this Agreement or any Related Document (including any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement or any Related Document), may be made only against (and subject to the terms and conditions thereof) the entities


 
56 US-DOCS\137120358.19 CAN_DMS: \149532846\17 that are expressly identified as parties hereto and thereto; and (b) no Person who is not a named party to this Agreement or any Related Document, including any past, present or future director, officer, employee, incorporator, member, manager, partner, equityholder, Affiliate, agent, attorney or representative of any named party to this Agreement or any Related Document (“Non-Party Affiliates”), shall have any liability (whether in contract or in tort, in law or in equity, or based upon any theory that seeks to impose liability of an entity party against its owners or Affiliates) for any obligations or liabilities arising under, in connection with or related to this Agreement or any Related Document or for any claim based on, in respect of, or by reason of this Agreement or any Related Document or its negotiation or execution, and each Party waives and releases all such liabilities, claims and obligations against any such Non-Party Affiliates. Non-Party Affiliates are expressly intended as third-party beneficiaries of this provision of this Agreement. 9.10 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. This Agreement and any Related Document, and any amendments hereto or thereto, to the extent signed and delivered by email in “portable document format” (“.pdf”), or any other electronic transmission, shall be treated in all manners and respects as an original contract and shall be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person. At the request of any party hereto or to any Related Document, each other party hereto or thereto shall re-execute original forms hereof or thereof and deliver them to all other Parties. 9.11 Confidentiality. The Purchaser Parties acknowledge that all information provided to it and any of its Affiliates, agents and representatives by the Company and its Affiliates, agents and representatives in connection with this Agreement and the Transactions is subject to the terms of the Confidentiality Agreement. 9.12 Press Releases and Communications. The Purchaser Parties and the Sellers’ Representative shall agree upon the initial joint press release and other public communications with respect to the execution of this Agreement, and will issue such press release and public communications promptly following the execution of this Agreement (the “Joint Communications”). Other than the Joint Communications, the Sellers and Sellers’ Representative shall not be entitled to make any press release or public announcement related to this Agreement or the Transactions and no such press release or public announcement shall be issued or made by or on behalf of any Party without the prior written consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, nothing in this Section 9.12 will restrict or prohibit the Purchaser Parties from making any (i) press release or other public communication to the extent required by Law (in the reasonable opinion of counsel) or required or advisable pursuant to applicable SEC or stock exchange rules or (ii) announcement to its employees, clients and other business relations to the extent the Purchaser Parties reasonably determine in good faith that such announcement is necessary or advisable in the course of operating the Company’s business pursuant to the requirements of any Contract to which such Person is a party. 9.13 Specific Performance. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a Party shall be deemed cumulative with and not exclusive of any


 
57 US-DOCS\137120358.19 CAN_DMS: \149532846\17 other remedy conferred hereby, or by law or equity upon such Party, and the exercise by a Party hereto of any one remedy shall not preclude the exercise of any other remedy and nothing herein shall be deemed a waiver by any Party hereto of any specific performance or injunctive relief. The Parties agree that (a) irreparable damage would occur in the event that the provisions of this Agreement or obligations, undertakings, covenants or agreements of the Parties were not performed in accordance with their specific terms or were otherwise breached; and (b) monetary damages, even if available, would not be an adequate remedy for any such failure to perform or any breach of this Agreement. Accordingly, it is agreed the Parties shall be entitled to an injunction or injunctions to enforce specifically the terms and provisions hereof in any court specified in Section 9.2 without proof of actual damages, this being in addition to any other remedy to which they are entitled at law or in equity. Without limitation of the foregoing, the Parties hereby further acknowledge and agree that the Sellers and the Purchaser shall be entitled to specific performance to enforce specifically the terms and provisions of, and to prevent or cure breaches of the covenants required to be performed by the Purchaser, the Sellers and the Company under this Agreement in addition to any other remedy to which the Purchaser, the Sellers or the Company, as applicable, are entitled at law or in equity. Each Party agrees that it will not oppose (and hereby waives any defense in any action for) the granting of an injunction, specific performance and other equitable relief as provided herein on the basis that (i) the other Parties have an adequate remedy at law; or (ii) an award of specific performance or other equitable remedy is not an appropriate remedy for any reason at law, equity or otherwise. Any Party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement when available pursuant to the terms of this Agreement shall not be required to provide any bond or other security in connection with any such order or injunction. 9.14 Sellers’ Representative; Power of Attorney. (a) Effective as of the date hereof, and without further act of any Person, John Bitove, or his appointee, (in such capacity, the “Sellers’ Representative”) is hereby irrevocably appointed as agent and attorney in fact for each Seller, for and on behalf of each Seller, to give and receive notices and communications and to take any and all action on behalf of each Seller pursuant to this Agreement, including the allocation of any amounts payable to each Seller pursuant to this Agreement (including the Consideration Schedule) and to execute and deliver such agreements or other documents in connection with this Agreement and Transactions as the Sellers’ Representative, in its reasonable discretion, may deem necessary or desirable. Notwithstanding anything to the contrary in this Agreement or otherwise, the Purchaser shall be entitled to rely conclusively on any instruction given, decision made or action taken (or not given, made or taken) by the Sellers’ Representative on behalf of each Seller, pursuant to this Section 9.14 (each, an “Authorized Action”), and that each Authorized Action shall be binding on each Seller as fully as if such Person had taken such Authorized Action. Any action taken or not taken or decisions, communications or writings made, given or executed by the Sellers’ Representative shall be deemed an action taken or not taken or decisions, communications or writings made, given or executed by each Seller. Any notice or communication delivered by the Purchaser to the Sellers’ Representative shall be deemed to have been delivered to all Sellers. The Sellers’ Representative shall not be liable to any of the Sellers for any action taken by Sellers’ Representative in good faith pursuant to this Section 9.14:.


 
58 US-DOCS\137120358.19 CAN_DMS: \149532846\17 (b) The grant of authority provided for in this Section 9.14: (i) is an agency coupled with an interest; (ii) is irrevocable and will survive the death, incompetency, bankruptcy or liquidation of any Seller and will be binding on any successor thereto; and (iii) subject to this Section 9.14, may be exercised by the Sellers’ Representative acting by signing as the Sellers’ Representative of any Seller. (c) All fees, costs and expenses incurred by the Sellers’ Representative pursuant to this Agreement or the Transactions, or of any agent or advisor in fulfilling the duties of the Sellers’ Representative as agent for each Seller shall be paid by each Seller based on such Seller’s Pro Rata Percentage (as set forth in the Consideration Schedule). (d) No Party shall have any cause of action against the Purchaser, any other Purchaser Related Parties or the Company or any of their Non-Party Affiliates for any action taken by the Purchaser or the Company in reliance upon any Authorized Action. 9.15 Independent Legal Advice. Each of the Sellers acknowledges and confirms that it has read this Agreement in its entirety, that it has been given an opportunity to consider this Agreement and seek independent legal counsel and advice (including with respect to the rights of the Sellers Representative) and that it has entered into this Agreement and the Related Documents voluntarily and intending to be legally bound. 9.16 Amalgamation. The Parties acknowledge that, promptly after the closing, the Purchaser and the Company will amalgamate pursuant to applicable provisions of British Columbia law (such amalgamation, the “Amalgamation”). Notwithstanding anything else in this Agreement, the Parties acknowledge that any rights and obligations that are described as rights and obligations of Purchaser and Company under this Agreement shall be rights and obligations of the of the amalgamated company following the Amalgamation.


 
[Signature page to Share Purchase Agreement] CAN_DMS: \149532846\17 IN WITNESS WHEREOF, the Parties have caused this Share Purchase Agreement to be duly executed and delivered as of the day and year first above written. 1393631 B.C. UNLIMITED LIABILITY COMPANY By: /s/ Shane Torchiana Name: Shane Torchiana Title: Chief Executive Officer BIRD GLOBAL, INC. By: /s/ Shane Torchiana Name: Shane Torchiana Title: Chief Executive Officer and President


 
[Signature page to Share Purchase Agreement] CAN_DMS: \149532846\17 COMPANY BIRD CANADA INC. By: /s/ Stewart Lyons Name: Stewart Lyons Title: Chief Executive Officer


 
[Signature page to Share Purchase Agreement] CAN_DMS: \149532846\17 SELLERS ALATE I LP, by its General Partner, ALATE I GP INC. By: /s/ Jay Jiang Name: Jay Jiang Title: Authorized Signatory By: /s/ Jeannette Wiltse Name: Jeannette Wiltse Title: Authorized Signatory


 
[Signature page to Share Purchase Agreement] CAN_DMS: \149532846\17 MKB PARTNERS FUND II, LIMITED PARTNERSHIP, by its general partner, MKB PARTNERS FUND II GP INC. By: /s/ Antonio Occhionero Name: Antonio Occhionero Title: Authorized Signatory MKB PARTNERS FUND II INTERNATIONAL, LIMITED PARTNERSHIP, by its general partner, MKB PARTNERS FUND II GP INC. By: /s/ Antonio Occhionero Name: Antonio Occhionero Title: Authorized Signatory


 
[Signature page to Share Purchase Agreement] CAN_DMS: \149532846\17 OBELYSK TRANSPORT L.P., by its general partner, OBELYSK TRANSPORT GP INC. By: /s/ John Bitove Name: John Bitove Title: President /s/ John Bitove JOHN BITOVE


 
[Signature page to Share Purchase Agreement] CAN_DMS: \149532846\17 RELAY VENTURES FUND III L.P, by its general partner, RELAY VENTURES FUND III GP INC. By: /s/ Kevin Talbot Name: Kevin Talbot Title: Director By: /s/ Jeannette Wiltse Name: Jeannette Wiltse Title: Director RELAY VENTURES PARALLEL FUND III L.P., by its general partner, RELAY VENTURES FUND III GP INC. By: /s/ Kevin Talbot Name: Kevin Talbot Title: Director By: /s/ Jeannette Wiltse Name: Jeannette Wiltse Title: Director


 
[Signature page to Share Purchase Agreement] CAN_DMS: \149532846\17 2136305 ONTARIO INC. By: /s/ Stewart Lyons Name: Stewart Lyons Title: Authorized Signatory /s/ Stewart Lyons STEWART LYONS


 
[Signature page to Share Purchase Agreement] CAN_DMS: \149532846\17 /s/ JJ Bitove JJ BITOVE


 
[Signature page to Share Purchase Agreement] CAN_DMS: \149532846\17 /s/ Austin Spademan AUSTIN SPADEMAN


 
[Signature page to Share Purchase Agreement] CAN_DMS: \149532846\17 /s/ Ryan Lausman RYAN LAUSMAN


 
[Signature page to Share Purchase Agreement] CAN_DMS: \149532846\17 /s/ John Bitove JOHN BITOVE, AS SELLERS’ REPRESENTATIVE


 

1 CERTIFICATE OF DESIGNATION OF SERIES A PREFERRED STOCK OF BIRD GLOBAL, INC. Bird Global, Inc., a Delaware corporation (the “Corporation”), hereby certifies that, pursuant to the provisions of Sections 103, 141 and 151 of the General Corporation Law of the State of Delaware, on December 30, 2022, the board of directors of the Corporation (the “Board”) adopted the resolution shown immediately below, which resolution is now, and at all times since its date of adoption, has been in full force and effect: RESOLVED, that, pursuant to the provisions of the Amended and Restated Certificate of Incorporation of the Corporation (as such may be amended, modified, or restated from time to time, the “Amended and Restated Certificate”) (which authorizes 100,000,000 shares of preferred stock, par value $0.0001 per share (the “Preferred Stock”)), and the authority thereby vested in the Board, a series of Preferred Stock be, and it hereby is, created, and that the designation and number of shares of such series, and the voting and other powers, preferences, and relative, participating, optional, or other rights, and the qualifications, limitations, and restrictions thereof are as set forth in the Amended and Restated Certificate and this Certificate of Designation (as such may be amended from time to time, the “Certificate of Designation”) as follows: SECTION 1. Designation and Number of Shares. Pursuant to the Amended and Restated Certificate, there is hereby created out of the authorized and unissued shares of Preferred Stock a series of Preferred Stock consisting of one share of Preferred Stock designated as “Series A Preferred Stock” (the “Series A Preferred Stock”). SECTION 2. Permitted Owners. The Series A Preferred Stock may be issued only to, and registered in the name of, Obelysk Transport L.P. and its transferees pursuant to a Permitted Transfer (as defined in Section 5 hereof). SECTION 3. Voting. Notwithstanding anything to the contrary in the Amended and Restated Certificate, except as provided herein or expressly required by law, the holder of Series A Preferred Stock shall not be entitled to vote on any matter on which stockholders of the Corporation generally are entitled to vote. SECTION 4. Dividends. Notwithstanding anything to the contrary in the Amended and Restated Certificate, dividends shall not be declared or paid on the Series A Preferred Stock. SECTION 5. Transfer of Series A Preferred Stock. Except for transfers to an Affiliate (as such term is defined in Section 9(D)(1) of the Amended and Restated Certificate), neither the Series A Preferred Stock nor any rights, powers, preferences, or privileges thereunder shall be transferable, in whole or in part, without the prior written consent of the Corporation (which may be granted or withheld in the Corporation’s sole discretion) (such transfer to an Affiliate or to which the Corporation has consented, a “Permitted Transfer”). SECTION 6. Conversion; Redemption. The Series A Preferred Stock is not convertible into any other security of the Corporation. The Corporation may redeem the Series A Preferred Stock, at its option, for the par value thereof, (i) on or after February 15, 2023 or (ii) upon a breach of the restrictions on transfer in Section 5 hereof. SECTION 7. Director Election. So long as the Series A Preferred Stock remains outstanding, the holder of the Series A Preferred Stock will be entitled to nominate five directors for election to the Board


 
2 in connection with any vote (whether at a meeting or by written consent) of the stockholders of the Corporation for the election of directors, and the vote of the holder of the Series A Preferred Stock shall be the only vote required to elect such nominee to the Board (such directors, in such capacity, the “Series A Directors”). So long as any Series A Preferred Stock remains outstanding, vacancies on the Board resulting from the death, resignation, retirement, disqualification, or removal of a Series A Director shall be filled only by the affirmative vote of the holder of the Series A Preferred Stock (and not pursuant to Section 5(A)(2) of the Amended and Restated Certificate). The Series A Directors shall be classified in accordance with the provisions of Section 6(A) of the Amended and Restated Certificate. SECTION 8. Liquidation, Dissolution, or Winding-Up of the Corporation. In the event of any voluntary or involuntary liquidation, dissolution, or winding-up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation, the holder of the Series A Preferred Stock shall be entitled to receive, out of the assets of the Corporation or proceeds thereof available for distribution to stockholders of the Corporation, before any distribution of such assets or proceeds is made to or set aside for the holders of common stock of the Corporation and any other stock of the Corporation ranking junior to the Series A Preferred Stock as to such distribution, payment in full in an amount equal to $0.0001 per share. SECTION 9. Effectiveness. This Certificate of Designation shall become effective on January 3, 2023, at 9:00 a.m., Eastern Standard Time. [Signature Page Follows]


 
[Signature Page to Certificate of Designation] IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designation to be signed by its undersigned duly authorized officer this 30th day of December 2022. Bird Global, Inc. By: /s/ Shane Torchiana Name: Shane Torchiana Title: Chief Executive Officer


 

Execution Version US-DOCS\137446087.12 NOTE PURCHASE AGREEMENT by and among BIRD GLOBAL, INC., as Issuer THE SEVERAL PURCHASERS FROM TIME TO TIME PARTY HERETO AND U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Collateral Agent Dated as of December 30, 2022


 
i US-DOCS\137446087.12 TABLE OF CONTENTS Page 1. DEFINITIONS AND OTHER TERMS ..............................................................................1 1.1 Terms .......................................................................................................................1 1.2 Section References ...................................................................................................1 1.3 Divisions ..................................................................................................................1 1.4 Definitions ................................................................................................................1 1.5 Material Adverse Effect .........................................................................................30 2. NOTES AND TERMS OF PAYMENT ............................................................................30 2.1 Issuance of Notes ...................................................................................................30 2.2 Payment of Interest on the Notes ...........................................................................35 2.3 Purchasers’ Expenses .............................................................................................35 2.4 Collateral Agent Fees .............................................................................................35 2.5 Taxes; Increased Costs ...........................................................................................36 2.6 Notes ......................................................................................................................36 2.7 Redemption ............................................................................................................36 2.8 Conversion .............................................................................................................37 2.9 Limitation on Conversion ......................................................................................52 2.10 Effect of Common Stock Change Event ................................................................52 3. CONDITIONS OF NOTES ...............................................................................................53 3.1 Conditions Precedent to Closing ............................................................................53 3.2 Conditions Precedent to Acquisition Closing ........................................................55 3.3 Covenant to Deliver ...............................................................................................55 3.4 Post-Closing Obligations .......................................................................................55 4. CREATION OF SECURITY INTEREST .........................................................................56 4.1 Grant of Security Interest .......................................................................................56 4.2 Representations, Warranties and Covenants ..........................................................56 4.3 Registration in Nominee Name ..............................................................................57 4.4 Voting Rights; Dividends and Interest ...................................................................57 4.5 Other Collateral ......................................................................................................58 4.6 Release of Issuer Pledged Collateral ......................................................................58 5. REPRESENTATIONS AND WARRANTIES OF THE ISSUER ....................................58 5.1 Organization and Good Standing ...........................................................................58 5.2 Due Qualification ...................................................................................................58 5.3 Power and Authority; Due Authorization ..............................................................58 5.4 Binding Obligations ...............................................................................................59 5.5 No Conflict or Violation ........................................................................................59


 
ii US-DOCS\137446087.12 5.6 Litigation and Other Proceedings ..........................................................................59 5.7 Government Approvals ..........................................................................................60 5.8 Solvency .................................................................................................................60 5.9 Offices; Legal Name ..............................................................................................60 5.10 Investment Company Act ......................................................................................60 5.11 Accuracy of Information ........................................................................................60 5.12 Anti-Money Laundering/International Trade Law Compliance ............................60 5.13 Perfection Representations .....................................................................................61 5.14 Compliance with Applicable Laws ........................................................................61 5.15 Taxes ......................................................................................................................61 5.16 No Broker’s Fees ...................................................................................................61 5.17 No General Solicitation ..........................................................................................61 6. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS ........................62 6.1 Organization and Good Standing ...........................................................................62 6.2 Power and Authority; Due Authorization ..............................................................62 6.3 Binding Obligations ...............................................................................................62 6.4 No Conflict or Violation ........................................................................................62 6.5 Litigation and Other Proceedings ..........................................................................62 6.6 Government Approvals ..........................................................................................63 6.7 Evaluation of Risks ................................................................................................63 6.8 No Legal, Investment, or Tax Advice from the Issuer ..........................................63 6.9 Investment Purpose ................................................................................................63 6.10 Accredited Investor ................................................................................................64 6.11 Reliance on Exemptions ........................................................................................64 6.12 No Governmental Review ......................................................................................64 6.13 Information ............................................................................................................65 6.14 Not an Affiliate ......................................................................................................65 6.15 No Prior Short Sales...............................................................................................65 6.16 General Solicitation ...............................................................................................65 6.17 ERISA ....................................................................................................................65 7. AFFIRMATIVE COVENANTS .......................................................................................66 7.1 Financial Reporting; Notices .................................................................................66 7.2 Security Interest, Etc ..............................................................................................67 7.3 Taxes ......................................................................................................................67 7.4 Insurance ................................................................................................................67 7.5 Use of Proceeds ......................................................................................................68 8. NEGATIVE COVENANTS ..............................................................................................68 8.1 Fundamental Changes; Dispositions ......................................................................68 8.2 Mergers or Acquisitions .........................................................................................69 8.3 Incurrence of Indebtedness and Issuance of Preferred Stock ................................69 8.4 Incurrence of Liens ................................................................................................69


 
iii US-DOCS\137446087.12 8.5 Restricted Payments ...............................................................................................70 8.6 Transactions with Affiliates ...................................................................................70 8.7 Anti-Layering .........................................................................................................70 8.8 Hedging Agreements. ............................................................................................70 9. EVENTS OF DEFAULT ...................................................................................................70 9.1 Payment Default .....................................................................................................71 9.2 Covenant Default ...................................................................................................71 9.3 Other Default .........................................................................................................71 9.4 Cross-Default .........................................................................................................71 9.5 Insolvency. .............................................................................................................71 9.6 Note Documents .....................................................................................................72 9.7 Collateral ................................................................................................................72 9.8 Judgments ..............................................................................................................72 9.9 Material Adverse Effect .........................................................................................72 9.10 Change of Control ..................................................................................................72 9.11 Share Purchase Agreement ....................................................................................72 10. RIGHTS AND REMEDIES ..............................................................................................73 10.1 Rights and Remedies ..............................................................................................73 10.2 Power of Attorney ..................................................................................................75 10.3 Protective Payments ...............................................................................................76 10.4 Application of Payments and Proceeds ..................................................................76 10.5 Liability for Collateral ...........................................................................................77 10.6 No Waiver; Remedies Cumulative ........................................................................77 10.7 Demand Waiver .....................................................................................................77 10.8 Setoff and Sharing of Payments .............................................................................77 11. NOTICES ...........................................................................................................................78 12. CHOICE OF LAW; VENUE; JURY TRIAL WAIVER ...................................................79 12.1 Waiver of Jury Trial ...............................................................................................79 12.2 Governing Law and Jurisdiction ............................................................................79 12.3 Submission to Jurisdiction .....................................................................................79 12.4 Service of Process ..................................................................................................80 12.5 Non-Exclusive Jurisdiction ....................................................................................80 13. GENERAL PROVISIONS ................................................................................................80 13.1 Successors and Assigns ..........................................................................................80 13.2 Indemnification; Waivers .......................................................................................81 13.3 Severability of Provisions ......................................................................................82 13.4 Correction of Note Documents ..............................................................................82 13.5 Amendments in Writing; Integration .....................................................................82 13.6 Counterparts ...........................................................................................................84


 
iv US-DOCS\137446087.12 13.7 Survival ..................................................................................................................84 13.8 Confidentiality .......................................................................................................84 13.9 Public Announcement ............................................................................................85 13.10 Collateral Agent and Purchaser Agreement ...........................................................85 13.11 Time of Essence .....................................................................................................85 13.12 Several Obligations ................................................................................................85 13.13 Termination Prior to Maturity Date; Survival .......................................................86 13.14 Withholding ...........................................................................................................86 EXHIBITS A Description of Collateral B Form of Note C Collateral Agent Terms D Taxes; Increased Costs SCHEDULES 2.1 Purchasers 8.3 Indebtedness 8.4 Liens 8.5 Investments


 
1 US-DOCS\137446087.12 THIS NOTE PURCHASE AGREEMENT (including all exhibits and schedules hereto, as the same may be amended, restated, supplemented, or otherwise modified from time to time, this “Agreement”), dated as of December 30, 2022 (the “Closing Date”), is entered into by and among the “Purchasers” signatory hereto (collectively with such other Persons, if any, that may from time to time become a party hereto as a purchaser pursuant to the terms of this Agreement, the “Purchasers,” and each, a “Purchaser”), Bird Global, Inc., a Delaware corporation (the “Issuer”), and U.S. Bank Trust Company, National Association, as collateral agent (in such capacity, together with its successors and assigns in such capacity, the “Collateral Agent”), provides the terms on which the Purchasers, on the date hereof, shall purchase the Notes (as defined below) as set forth herein. The parties agree as follows: 1. DEFINITIONS AND OTHER TERMS 1.1 Terms. Capitalized terms used herein shall have the meanings set forth in Section 1.4 to the extent defined therein. All other capitalized terms used but not defined herein shall have the meaning given to such terms in the Code. Any accounting term used but not defined herein shall be construed in accordance with GAAP, and all calculations shall be made in accordance with GAAP. The term “financial statements” shall include the accompanying notes and schedules. Notwithstanding anything to the contrary contained herein, for purposes of determining compliance with any covenant all obligations of any Person that are or would have been treated as operating leases for purposes of GAAP prior to the effectiveness of ASC 842 (or any other ASC having a similar result or effect) (and related interpretations) shall continue to be accounted for as operating leases (whether or not such operating lease obligations were in effect on such date), notwithstanding the fact that such obligations are required in accordance with ASC 842 or otherwise (on a prospective or retroactive basis or otherwise) to be treated as capital lease obligations in the financial statements. 1.2 Section References. Any section, subsection, schedule, or exhibit references are to the sections, subsections, schedules, or exhibits of this Agreement unless otherwise specified. 1.3 Divisions. For all purposes under the Note Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation, or liability of any Person becomes the asset, right, obligation, or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person; and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time. 1.4 Definitions. The following terms are defined in the sections or subsections referenced opposite such terms: “Acquisition Closing” Section 2.1(a)(iii) “Additional Shares” Section 2.8(d)(vii) “Agreement” Preamble “Business Combination Event” Section 8.2 “Cash Consideration Purchasers” Section 2.1(a)(i) “Change of Control Offer” Section 2.1(d)(ii)


 
2 US-DOCS\137446087.12 “Claims” Section 13.2(a) “Closing” Section 2.1(a)(iii) “Closing Date” Preamble “Collateral Agent” Preamble “Common Stock Change Event” Section 2.10 “Communications” Section 11 “Default Rate” Section 2.2(b) “Event of Default” Section 9 “Excess Proceeds” Section 2.1(c)(ii) “Excess Proceeds Offer” Section 2.1(c)(ii) “Expiration Date” Section 2.8(d)(v) “Expiration Time” Section 2.8(d)(v) “Indemnified Person” Section 13.2(a) “Issuer” Preamble “NI 45-106” Section 6.11 “Note” and “Notes” Section 2.1(a)(i) “PIK Interest” Section 2.2(d) “Purchaser” and “Purchasers” Preamble “Redemption” Section 2.7(a) “Redemption Notice” Section 2.7(c) “Reference Property” Section 2.10 “Reference Property Unit” Section 2.10 “Register” Section 13.1 “Representation Letter” Section 6.11 “Requisite Stockholder Approval” Section 2.9 “Seller” Section 2.1(b)(ii) “Share Consideration Purchasers” Section 2.1(a)(ii) “Spin-Off” Section 2.8(d)(iii)(2) “Spin-Off Valuation Period” Section 2.8(d)(iii)(2) “Successor Corporation” Section 8.2 “Successor Person” Section 2.10 “Tender/Exchange Offer Valuation Period” Section 2.8(d)(v) “Trigger Event” Section 2.8(d)(iii)(1) In addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings: “Acquisition” means the acquisition (whether by means of a merger, consolidation or otherwise) of all of the Equity Interests of any Person or all or substantially all of the assets of (or any division or business line of) any Person. “Acquisition Closing Date” means January 3, 2023. “Acquisition Purchase Price” means, with respect to any Acquisition, an amount equal to the sum of (a) the aggregate consideration, whether cash, property or securities (including the fair market value of any Equity Interests of any Note Party or any of its Subsidiaries issued in connection with such Acquisition), paid or delivered by a Note Party or any of its Subsidiaries


 
3 US-DOCS\137446087.12 (whether as initial consideration or through the payment or disposition of deferred consideration, including in the form of seller financing, royalty payments, payments allocated towards non- compete covenants, payments to principals for consulting services or other similar payments) in connection with such Acquisition, plus (b) the aggregate amount of liabilities of the acquired business (net of current assets of the acquired business) that would be reflected on a balance sheet (if such were to be prepared) of the Parent and its Subsidiaries after giving effect to such Acquisition, plus (c) the aggregate amount of all transaction fees, costs and expenses incurred by the Parent or any of its Subsidiaries in connection with such Acquisition. “Affiliate” means, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person. For purposes of this definition, control of a Person shall mean the power, direct or indirect, (x) to vote 25% or more of the securities having ordinary voting power for the election of directors or managers of such Person or (y) to direct or cause the direction of the management and policies of such Person, in either case whether by ownership of securities, contract, proxy or otherwise. “Affiliate Transaction” means any transaction or series of transactions, including any transaction or series of transactions in which the Issuer or any of its Subsidiaries acts to, directly or indirectly, make any payment to, or sell, lease, transfer, or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction or series of transactions, contract, agreement, understanding, loan, advance, or guarantee with, or for the benefit of, any Affiliate of the Issuer or its Subsidiaries. “Anti-Terrorism Law” means any Applicable Law relating to terrorism financing, trade sanctions programs, and embargoes, import/export licensing, money laundering, or bribery and any regulation, order, or directive promulgated, issued or enforced pursuant to such Applicable Laws, all as amended, supplemented or replaced from time to time. “Applicable Law” means, with respect to any Person, (x) all provisions of law, statute, treaty, constitution, ordinance, rule, regulation, requirement, restriction, permit, executive order, certificate, decision, directive, or order of any Governmental Authority applicable to such Person or any of its property and (y) all judgments, injunctions, orders, writs, decrees, and awards of all courts and arbitrators in proceedings or actions in which such Person is a party or by which any of its property is bound. “Applicable Premium” means, with respect to any Note on any applicable Redemption Date, as calculated by the Issuer, the excess, if any, of (a) (i) the Redemption Price of the Note on December 30, 2024 as set forth in Section 2.7(a) (including, for the avoidance of doubt, any PIK Interest paid with respect thereto) plus (ii) the present value on such Redemption Date of all required interest payments due on such Note (including, for the avoidance of doubt, on any PIK Interest paid with respect thereto) through December 30, 2024 (excluding accrued but unpaid interest to, but excluding, the Redemption Date), computed using a discount rate equal to the Treasury Rate plus 50 basis points, over (b) the then-outstanding principal amount of such Note (including, for the avoidance of doubt, any PIK Interest paid with respect thereto). For purposes of this definition, any PIK Interest that has been paid and capitalized and added to the principal amount of the Notes prior to the Redemption Notice Date will be included in the principal amount


 
4 US-DOCS\137446087.12 of the Notes for purposes of determining the redemption price of the Note on December 30, 2024, but all other interest payments thereafter will be deemed to be paid in cash. “ASC” means an Accounting Standards Codification issued by the Financial Accounting Standards Board. “Authorized Denomination” means, with respect to a Note, a principal amount thereof equal to $1,000 or any integral multiple of $1.00 in excess thereof. “Bankruptcy Code” means Title 11 of the United States Code, as amended. “Bird Rides” means Bird Rides, Inc., a Delaware corporation and direct, wholly owned subsidiary of the Issuer. “Board of Directors” means the board of directors of the Issuer or any duly authorized committee or subcommittee of such board of directors. “Business Day” means a day other than a Saturday, Sunday, or other day on which banking institutions are authorized or required by law or regulation to close in the State of New York or, with respect to any payments to be made under this Agreement or any other Note Document, the place of payment. "Capitalized Lease" means, with respect to any Person, any lease of (or other arrangement conveying the right to use) real or personal property by such Person as lessee that is required under GAAP to be capitalized on the balance sheet of such Person. "Capitalized Lease Obligations" means, with respect to any Person, obligations of such Person and its Subsidiaries under Capitalized Leases, and, for purposes hereof, the amount of any such obligation shall be the capitalized amount thereof determined in accordance with GAAP. “Capital Stock” means: (1) in the case of a corporation or company, corporate stock or share capital; (2) in the case of an association or business entity, any and all shares, interests, participations, rights, or other equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person (it being understood and agreed, for the avoidance of doubt, that “cash-settled phantom appreciation programs” in connection with employee benefits that do not require a dividend or distribution shall not constitute Capital Stock). “Cash Consideration” means consideration paid by the Purchasers for the purchase of Notes in immediately available funds.


 
5 US-DOCS\137446087.12 “Cash Equivalents” means: (1) U.S. dollars or Canadian dollars, pounds sterling or euros; (2) marketable direct obligations issued by any state of the United States or the District of Columbia or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and having one of the two highest ratings obtainable from either S&P Global Ratings, a division of S&P Global Inc. or its affiliates ("S&P"), or Moody's Investors Service, Inc. or its affiliates ("Moody's"); (3) commercial paper, maturing not more than one year after the date of issue rated P- 1 by Moody's or A-1 by S&P; (4) certificates of deposit maturing not more than one year after the date of issue, issued by commercial banking institutions and money market or demand deposit accounts maintained at commercial banking institutions, each of which is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000; (5) repurchase agreements having maturities of not more than 90 days from the date of acquisition which are entered into with major money center banks included in the commercial banking institutions described in clause (4) above and which are secured by readily marketable direct obligations of the United States or any agency thereof; (6) money market accounts maintained with mutual funds having assets in excess of $2,500,000,000, which assets are primarily comprised of Cash Equivalents described in another clause of this definition; (7) marketable tax exempt securities rated A-1 or higher by Moody's or A or higher by S&P, in each case, maturing within one year from the date of acquisition thereof; and (h) in the case of any Foreign Subsidiary, cash and cash equivalents that are substantially equivalent in such jurisdiction to those described in clauses (a) through (g) above in respect of each country that is a member of the Organization for Economic Co-operation and Development. Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clause (1) above. “Cash Management Services” means any of the following to the extent not constituting a line of credit (other than an overnight draft facility): automated clearing house transactions, treasury and/or cash management services, including, without limitation, treasury, depository, overdraft, credit, purchasing or debit card, non-card e-payables services, electronic funds transfer, treasury management services (including controlled disbursement services, overdraft automatic clearinghouse fund transfer services, return items, and interstate depository network services), other demand deposit or operating account relationships, foreign exchange facilities, and merchant services.


 
6 US-DOCS\137446087.12 “Change of Control” means the occurrence of any of the following: (1) (i) the Issuer ceases to own, directly or indirectly, 100% of the issued and outstanding Equity Interests of Bird Rides; (ii) Bird Rides ceases to own, directly or indirectly, 100% of the issued and outstanding Equity Interests of the Bird US Holdco, LLC; (iii) Bird US Holdco, LLC ceases to own, directly, 100% of the issued and outstanding Equity Interests of Bird US Opco, LLC, in each case free and clear of all Liens other than non-voluntary Liens arising under applicable statutes, Liens in favor of the Collateral Agent and, in the case of (ii) or (iii), Liens in favor of the Vehicle Financing Agent; or (2) (i) any Person (other than a Permitted Holder) or (ii) Persons (other than one or more Permitted Holders) constituting a “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under such Exchange Act), directly or indirectly, of Equity Interests representing more than forty percent (40%) of the aggregate ordinary Voting Stock of Issuer and the percentage of aggregate ordinary Voting Stock so held is greater than the percentage of the aggregate ordinary Voting Stock represented by the Equity Interests of Issuer beneficially owned, directly or indirectly, in the aggregate by the Permitted Holders; unless, in the case of this clause (2), the Permitted Holders have, at such time, the right or the ability by voting power, contract or otherwise to elect or designate for election at least a majority of the Board of Directors. For the avoidance of doubt, the Transactions shall not be deemed to constitute a Change of Control. “Close of Business” means 5:00 p.m., New York City time. “Code” means the Uniform Commercial Code, as the same may, from time to time, be enacted and in effect in the State of New York; provided that, to the extent that the Code is used to define any term herein or in any Note Document and such term is defined differently in different Articles or Divisions of the Code, the definition of such term contained in Article or Division 9 shall govern; provided, further, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, or priority of, or remedies with respect to, the Collateral Agent’s Lien on any Collateral is governed by the Uniform Commercial Code in effect in a jurisdiction other than the State of New York, the term “Code” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies and for purposes of definitions relating to such provisions.


 
7 US-DOCS\137446087.12 “Collateral” means any and all properties, rights, and assets of the Issuer (including the Issuer Pledged Collateral) or any of its Subsidiaries subject to a Lien under the Note Documents in favor of the Collateral Agent, on behalf of the Secured Parties, to secure the Obligations. “Common Stock” means the Class A common stock, par value $0.0001 per share, of the Issuer. "Contingent Indemnity Obligations" means any Obligation constituting a contingent, unliquidated indemnification obligation of any Note Party, in each case, to the extent (a) such obligation has not accrued and is not yet due and payable and (b) no claim has been made or is reasonably anticipated to be made with respect thereto. "Contingent Obligation" means, with respect to any Person, any obligation of such Person guaranteeing or intending to guarantee any Indebtedness, leases, dividends or other obligations ("primary obligations") of any other Person (the "primary obligor") in any manner, whether directly or indirectly, including (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of a primary obligor, (b) the obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties to an agreement, and (c) any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term "Contingent Obligation" shall not include any product warranties extended in the ordinary course of business. The amount of any Person's obligation under any Contingent Obligation shall be determined in accordance with GAAP. "Contractual Obligation" means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound. “Conversion Date” means, with respect to a Note, the first Business Day on which the requirements set forth in Section 2.8(b) to convert such Note are satisfied. “Conversion Price” means, as of any time, an amount equal to (A) $1,000 divided by (B) the Conversion Rate in effect at such time. “Conversion Rate” means, initially, 3,473.4283 shares of Common Stock per $1,000 principal amount of Notes; provided, however, that the Conversion Rate is subject to adjustment pursuant to Section 2.8; provided, further, that whenever this Agreement refers to the Conversion Rate as of a particular date without setting forth a particular time on such date, such reference will be deemed to be to the Conversion Rate as of the Close of Business on such date.


 
8 US-DOCS\137446087.12 “Conversion Share” means any share of Common Stock issued or issuable upon conversion of any Note. “Default” means any Event of Default or any event, occurrence or circumstance that, after notice or passage of time, or both, would be, an Event of Default. “Disposition” means any transaction, or series of related transactions, pursuant to which any Person or any of its Subsidiaries sells, assigns, transfers, leases, licenses (as licensor) or otherwise disposes of any property or assets (whether now owned or hereafter acquired) to any other Person, in each case, whether or not the consideration therefor consists of cash, securities or other assets owned by the acquiring Person; provided that any such transaction or series of transactions shall not be deemed to be a “Disposition” if it has an aggregate Fair Market Value of less than $250,000. For purposes of clarification, “Disposition” shall include (a) the sale or other disposition for value of any contracts, (b) any disposition of property through a "plan of division" under the Delaware Limited Liability Company Act or any comparable transaction under any similar law, (c) the early termination or modification of any contract resulting in the receipt by any Note Party of a cash payment or other consideration in exchange for such event (other than payments in the ordinary course for accrued and unpaid amounts due through the date of termination or modification) or (d) any sale of merchant accounts (or any rights thereto (including any rights to any residual payment stream with respect thereto)) by any Note Party. “Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interest into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale, in each case, so long as any rights of the holders thereof upon the occurrence of such change of control or asset sale event is subject to the prior repayment in full of the Obligations), (b) is redeemable at the option of the holder thereof, in whole or in part, (c) provides for the obligation (not deferrable at the sole option of the issuer) to make scheduled payments of dividends or distributions in cash, or (d) is convertible into or exchangeable for (i) Indebtedness or (ii) any other Equity Interests that would constitute Disqualified Equity Interests, in each case of clauses (a) through (d), prior to the date that is six months after the Maturity Date; provided that if such Equity Interest is issued pursuant to a plan for the benefit of employees of any Note Party or by any such plan to such employees, such Equity Interest shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by a Note Party in order to satisfy applicable statutory or regulatory obligations. “Effective Price” has the following meaning with respect to the issuance or sale of any shares of Common Stock or any Equity-Linked Securities: (1) in the case of the issuance or sale of shares of Common Stock, the value of the consideration received by the Issuer for such shares, expressed as an amount per share of Common Stock; and (2) in the case of the issuance or sale of any Equity-Linked Securities, an amount equal to a fraction whose:


 
9 US-DOCS\137446087.12 (i) numerator is equal to sum, without duplication, of (x) the value of the aggregate consideration received by the Issuer for the issuance or sale of such Equity- Linked Securities; and (y) the value of the minimum aggregate additional consideration, if any, payable to purchase or otherwise acquire shares of Common Stock pursuant to such Equity-Linked Securities; and (ii) denominator is equal to the maximum number of shares of Common Stock underlying such Equity-Linked Securities; provided, however, that: (w) for purposes of this definition, (I) the value of consideration received by the Issuer shall be determined without deduction of any customary underwriting or similar commissions, reasonable compensation or reasonable concessions paid or allowed by the Issuer in connection with such issue or sale and without deduction of any reasonable and documented expenses payable by the Issuer, (II) to the extent any such consideration consists of property other than cash, the value of such property shall be its fair market value as determined in good faith by the Board of Directors, and (III) if shares of Common Stock or Equity-Linked Securities are issued or sold together with other Capital Stock or securities or other assets of the Issuer for a consideration that covers both, the Board of Directors shall determine in good faith the portion of the consideration so received to be allocable to such shares of Common Stock or Equity-Linked Securities. (x) for purposes of clause (b) above, if such minimum aggregate consideration, or such maximum number of shares of Common Stock, is not determinable at the time such Equity-Linked Securities are issued or sold, then (I) the initial consideration payable under such Equity-Linked Securities, or the initial number of shares of Common Stock underlying such Equity-Linked Securities, as applicable, will be used; and (II) at each time thereafter when such amount of consideration or number of shares becomes determinable or is otherwise adjusted (other than pursuant to “anti-dilution” or similar provisions consistent with those set forth in Sections 2.8(d)(i) through (v) herein), there will be deemed to occur, for purposes of Section 2.8(d)(vi) and without affecting any prior adjustments theretofore made to the Conversion Rate, an issuance of additional Equity-Linked Securities; (y) for purposes of clause (b) above, the surrender, extinguishment, maturity or other expiration of any such Equity-Linked Securities will be deemed not to constitute consideration payable to purchase or otherwise acquire shares of Common Stock pursuant to such Equity-Linked Securities; and (z) the “value” of any such consideration will be the fair value thereof, as of the date such shares or Equity-Linked Securities, as applicable, are issued or sold, determined in good faith by the Board of Directors (or, in the case of cash denominated in U.S. dollars, the face amount thereof).


 
10 US-DOCS\137446087.12 “Equity Interests” means Capital Stock and all warrants, options, or other rights to acquire Capital Stock (but excluding any Capital Stock that arises only by reason of the happening of a contingency or any debt security that is convertible into, or exchangeable for, Capital Stock). “Equity-Linked Securities” means any rights, options or warrants to purchase or otherwise acquire (whether immediately, during specified times, upon the satisfaction of any conditions or otherwise) any shares of Common Stock. “ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder. “Exchange Act” means the U.S. Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. “Fair Market Value” means, with respect to any asset or property, the price that could be negotiated in an arm’s-length, free-market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction (as determined in good faith by the Issuer). “Foreign Subsidiary” means any Subsidiary that is not a Person incorporated or organized under the laws of the United States, any state of the United States, or the District of Colombia or the federal laws of Canada or any province or territory of Canada. “GAAP” means generally accepted accounting principles in the United States of America, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other Person as may be approved by a significant segment of the accounting profession in the United States, which are applicable to the circumstances as of the date of determination. “Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank, or other entity exercising executive, legislative, judicial, taxing, regulatory, or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank). “Guarantee” means any guarantee of all or any part of the Obligations, as the same may from time to time be amended, restated, supplemented, or otherwise modified from time to time. “Guarantor” means any Person party to the Note Documents as of the date hereof (or from time to time) providing a Guarantee in favor of the Collateral Agent for the ratable benefit of the Secured Parties. “Hedging Agreement” means any interest rate, foreign currency, commodity or equity swap, collar, cap, floor or forward rate agreement, or other agreement or arrangement designed to protect against fluctuations in interest rates or currency, commodity or equity values (including any option with respect to any of the foregoing and any combination of the foregoing agreements


 
11 US-DOCS\137446087.12 or arrangements), and any confirmation executed in connection with any such agreement or arrangement. “Indebtedness” means, with respect to any Person, without duplication: (a) all indebtedness of such Person for borrowed money; (b) all obligations of such Person for the deferred purchase price of property or services to the extent constituting liabilities under GAAP (other than (i) trade payables or other accounts payable incurred in the ordinary course of such Person’s business and not outstanding for more than 120 days after the date such payable was due and other trade payables or other accounts payable agreed in writing between the Issuer and the Purchaser Representative and (ii) any earn-out, purchase price adjustment or similar obligation until such obligation is required to be reflected on the balance sheet of such Person in accordance with GAAP); (c) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments or upon which interest payments are customarily made; (d) all reimbursement, payment or other obligations and liabilities of such Person created or arising under any conditional sales or other title retention agreement with respect to property used and/or acquired by such Person, even though the rights and remedies of the lessor, seller and/or lender thereunder may be limited to repossession or sale of such property; (e) all Capitalized Lease Obligations of such Person; (f) all obligations and liabilities, contingent or otherwise, of such Person, in respect of letters of credit, acceptances and similar facilities; (g) all obligations and liabilities, calculated on a basis satisfactory to the Collateral Agent and in accordance with accepted practice, of such Person under Hedging Agreements; (h) all monetary obligations under any receivables factoring, receivable sales or similar transactions and all monetary obligations under any synthetic lease, tax ownership/operating lease, off-balance sheet financing or similar financing; (i) all Contingent Obligations; (j) all Disqualified Equity Interests; and (k) all obligations referred to in clauses (a) through (j) of this definition of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien upon property owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness. The Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. “Independent Financial Advisor” means an accounting, appraisal, or investment banking firm or consultant, in each case, of nationally recognized standing that is, in the good faith determination of the Issuer, qualified to perform the task for which it has been engaged. “Insolvency Proceeding” means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors or (b) any general assignment for the benefit of creditors of a Person, composition, marshaling of assets for creditors of a Person, or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors, in each of clauses (a) and (b) undertaken under U.S. Federal, state or foreign law, including the Bankruptcy Code. “Intercreditor Agreement” means that certain Subordination and Intercreditor Agreement, dated as of the Closing Date, among the Purchasers, the Collateral Agent, and the Vehicle Financing Agent and acknowledged by the Issuer and the Guarantors, as may be amended, restated, supplemented, or otherwise modified from time to time.


 
12 US-DOCS\137446087.12 “Interest Payment Date” means June 30 and December 30 of each year, commencing on June 30, 2023 (or commencing on such other date specified in the certificate representing such Note). For the avoidance of doubt, the Maturity Date is an Interest Payment Date. “Internal Revenue Code” means the U.S. Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder. “Investment” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of (a) loans (including guarantees of Indebtedness), advances, or capital contributions (excluding accounts receivable, credit card and debit card receivables, trade credit and advances, or other payments made to customers, dealers, suppliers, contractors, and distributors, and payroll, commission, travel, and similar advances to officers, directors, managers, employees, consultants, and independent contractors) and (b) purchases or other acquisitions for consideration of Indebtedness, Equity Interests, or other securities issued by any other such Person. The amount of any Investment outstanding at any time shall be the amount actually invested in such Investment (determined, in the case of any Investment made with assets of the Issuer or any Subsidiary, based on the Fair Market Value of the assets invested and without taking into account subsequent increases or decreases in value), reduced by any dividend, distribution, interest payment, return of capital, repayment, or other amount received in cash by the Issuer or a Subsidiary in respect of such Investment and shall be net of any Investment by such Person in the Issuer or any Subsidiary. “IRS” means the U.S. Internal Revenue Service. “Issuer Pledged Collateral” means all of the Issuer’s right, title and interest in, to and under: (a) (i) the Equity Interests in the capital of Bird Rides owned by the Issuer on the date hereof, (ii) any other Equity Interests in the capital of Bird Rides obtained in the future by the Issuer and (iii) the certificates or other instruments representing all such Equity Interests (if any); (b) subject to Section 2.5, all payments of principal or interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of, in exchange for or upon the conversion of, and all other Proceeds (as defined in the Code) received in respect of, the securities referred to in clause (a) above; (c) subject to Section 2.5, all rights and privileges of the Issuer with respect to the securities and other property referred to in clauses (a) and (b) above; and (d) all Proceeds (as defined in the Code) of any of the foregoing. “Issuer 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 Issuer Pledged Collateral.


 
13 US-DOCS\137446087.12 “Junior Financing” means (a) any Indebtedness (other than any permitted intercompany Indebtedness owing to the Note Parties) that is (i) subordinated in right of payment to the Obligations, (ii) secured by a Lien that is junior in priority to the Lien securing the Obligations or (iii) unsecured Indebtedness for borrowed money, and (b) any Permitted Refinancing Indebtedness in respect of the foregoing. “Last Reported Sale Price” of the Common Stock for any Trading Day means the closing sale price per share (or, if no closing sale price is reported, the average of the last bid price and the last ask price per share or, if more than one in either case, the average of the average last bid prices and the average last ask prices per share) of Common Stock on such Trading Day as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is then listed. If the Common Stock is not listed on a U.S. national or regional securities exchange on such Trading Day, then the Last Reported Sale Price will be the last quoted bid price per share of Common Stock on such Trading Day in the over-the-counter market as reported by OTC Markets Group Inc. or a similar organization. If the Common Stock is not so quoted on such Trading Day, then the Last Reported Sale Price will be the average of the mid- point of the last bid price and the last ask price per share of Common Stock on such Trading Day from an Independent Financial Advisor. "Lease" means any lease, sublease or license of, or other agreement granting an exclusive or non-exclusive possessory interest in, real property to which any Note Party or any of its Subsidiaries is a party as lessor, lessee, sublessor, sublessee, licensor or licensee. “Lien” means, means any ownership interest or claim, mortgage, deed of trust, pledge, lien, security interest, hypothecation, charge or other encumbrance or security arrangement of any nature whatsoever, whether voluntarily or involuntarily given, including, but not limited to, any conditional sale or title retention arrangement, any Capitalized Lease, any assignment, deposit arrangement or lease intended as, or having the effect of, security and any filed financing statement or other notice of any of the foregoing (whether or not a lien or other encumbrance is created or exists at the time of the filing). “Make-Whole Fundamental Change” means a Change in Control in which the sole consideration to holders of Common Stock is cash. “Make-Whole Fundamental Change Conversion Period” the period from, and including, the Make-Whole Fundamental Change Effective Date of such Make-Whole Fundamental Change to, and including, the thirty-fifth (35th) Trading Day after such Make-Whole Fundamental Change Effective Date. “Make-Whole Fundamental Change Effective Date” means the date on which such Make-Whole Fundamental Change occurs or becomes effective. “Market Disruption Event” means, with respect to any date, the occurrence or existence, during the one-half hour period ending at the scheduled close of trading on such date on the principal U.S. national or regional securities exchange or other market on which the Common Stock is listed for trading or trades, of any material suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or


 
14 US-DOCS\137446087.12 otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common Stock. “Material Adverse Effect” means relative to any Person (provided that if no particular Person is specified, “Material Adverse Effect” shall be deemed to be relative to the Note Parties individually) with respect to any event or circumstance, a material adverse effect on any of the following: (1) the assets, operations, business or financial condition of the Note Parties and their Subsidiaries, taken as a whole; (2) the ability of the Issuer or any Guarantor to perform its obligations (taken as a whole) under this Agreement, or any of the other Note Documents; (3) the validity or enforceability of this Agreement or any other Note Document; (4) the perfection, enforceability or priority of the security interest in a material portion of the Collateral; or (5) the rights and remedies of the Purchasers or the Collateral Agent under the Note Documents taken as a whole or associated with their respective interest in the Collateral. “Material Indebtedness” means Indebtedness (other than the Obligations) of the Note Parties in an aggregate principal amount exceeding $1.0 million. Notwithstanding the foregoing, the Vehicle Financing Credit Agreement shall at all times be deemed Material Indebtedness hereunder. For purposes of determining the amount of Material Indebtedness at any time, (a) undrawn and committed amounts shall be included, and (b) all amounts owing to all creditors under any combined or syndicated credit arrangement shall be included; provided that no default existing under Indebtedness of Bird Canada Inc. as of immediately following the Acquisition Closing Date shall be considered to result in an Event of Default under Section 9.4. “Maturity Date” means December 30, 2027. “Maximum Vehicle Financing Principal Amount” means, as of any date of determination, (a) $50.0 million, minus (b) permanent reductions of loans in accordance with the terms of the Vehicle Financing Credit Agreement as in effect on the Closing Date, plus (c) interest, fees, costs, expenses, indemnities, and such other similar amounts payable pursuant to the terms of the Vehicle Financing Credit Agreement as in effect on the Closing Date, whether or not the same are added to the principal amount under the Vehicle Financing Credit Agreement and including the same as would accrue and become due but for the commencement of an Insolvency Proceeding, whether or not allowed in any such Insolvency Proceeding. “Net Cash Proceeds” means, with respect to, any issuance or incurrence of any Indebtedness, any Disposition by the Issuer and its Subsidiaries, the aggregate amount of cash received (directly or indirectly) from time to time (whether as initial consideration or through the payment or disposition of deferred consideration) by or on behalf of the Issuer and its Subsidiaries, in connection therewith after deducting therefrom only (a) reasonable expenses related thereto


 
15 US-DOCS\137446087.12 incurred or payable by the Issuer or any such Subsidiary in connection therewith, (b) taxes paid or to be paid in connection therewith (after taking into account any tax credits or deductions and any tax sharing arrangements), in each case, to the extent, but only to the extent, that the amounts so deducted are (i) actually paid to a Person that, except in the case of reasonable out-of-pocket expenses, is not an Affiliate of the Issuer or any of its Subsidiaries and (ii) properly attributable to such transaction or to the asset that is the subject thereof and (c) in the case of any Disposition, the amount of any reasonable reserves established by the Issuer in accordance with GAAP against (i) any liabilities under any indemnification obligations associated with such Disposition or (ii) any other liabilities retained by the Issuer or any of its Subsidiaries associated with the properties or assets sold in such Disposition. “Note Documents” means, collectively, this Agreement, the Notes, the Security Documents, the Voting Agreement, the Intercreditor Agreement, and the Share Purchase Agreement, all as amended, restated, supplemented, or otherwise modified from time to time in accordance with this Agreement; provided that the Voting Agreement and the Share Purchase Agreement will only be “Note Documents” for purposes hereof with respect to the rights and remedies of Share Consideration Purchasers. “Note Parties” means the Issuer and the Guarantors and “Note Party” means any one of them. “NYSE” means The New York Stock Exchange. “Obligations” means all present and future indebtedness, reimbursement obligations, and other liabilities and obligations (howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or due or to become due) of the Issuer to any Purchaser or the Collateral Agent arising under or in connection with this Agreement or any other Note Document or the transactions contemplated hereby or thereby, and shall include, without limitation, any debts, principal, interest, Redemption Price, Purchasers’ Expenses, Collateral Agent Expenses, indemnification expenses, and any other amounts the Issuer owes the Collateral Agent or the Purchasers and including, without limitation, interest, fees and other obligations that accrue after the commencement of any Insolvency Proceeding with respect to the Issuer (in each case whether or not allowed as a claim in such proceeding). “OFAC” means the U.S. Department of Treasury Office of Foreign Assets Control. “Open of Business” means 9:00 a.m., New York City time. “Operating Documents” are, for any Person, such Person’s formation documents, as certified by the Secretary of State (or equivalent agency) of such Person’s jurisdiction of organization on a date that is no earlier than thirty (30) days prior to the Closing Date, and, (a) if such Person is a corporation, its bylaws in current form, (b) if such Person is a limited liability company, its limited liability company agreement (or similar agreement), and (c) if such Person is a partnership, its partnership agreement (or similar agreement), each of the foregoing with all current amendments or modifications thereto. “Permitted Acquisition” means (i) the acquisition of the shares of Bird Canada Inc. pursuant to the terms of the Share Purchase Agreement and (ii) any other Acquisition by a Note


 
16 US-DOCS\137446087.12 Party or any wholly-owned Subsidiary of a Note Party to the extent that, in the case of (ii), each of the following conditions shall have been satisfied: (1) no Default or Event of Default shall have occurred and be continuing or would result from the consummation of the proposed Acquisition; (2) to the extent the Acquisition Purchase Price payable in respect of the proposed Acquisition exceeds $1.0 million, the Issuer shall have provided to the Purchasers (i) (A) at least five Business Days prior to the consummation of such Acquisition, an executed term sheet and/or commitment letter setting forth in reasonable detail the terms and conditions of such Acquisition and (B) at least one Business Day prior to the consummation of such Acquisition, (i) copies of the primary agreements, instruments or other documents with respect to the Acquisition and (ii) pro forma financial statements of the Issuer and its Subsidiaries after the consummation of such Acquisition and (iii) copies of such other agreements, instruments or other documents as any Purchaser shall reasonably request; (3) (i) neither the Note Parties nor any of their Subsidiaries shall, in connection with such Acquisition, assume or remain liable in respect of any Indebtedness of the seller or sellers, or other obligation of the seller or sellers (except for Permitted Indebtedness) and (ii) all property to be so acquired in connection with such Acquisition shall be free and clear of any and all Liens, except for Permitted Liens (and if any such property is subject to any Lien not permitted by this clause (ii) then concurrently with such Acquisition such Lien shall be released); (4) such Acquisition shall be effected in such a manner so that the acquired assets or Equity Interests are owned either by a Note Party or a wholly owned Subsidiary of a Note Party and, if effected by merger or consolidation involving a Note Party, such Note Party shall be the continuing or surviving Person; (5) the assets being acquired (other than a de minimis amount of assets in relation to the Note Parties' and their Subsidiaries' total assets), or the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicable, the business of the Note Parties and their Subsidiaries or a business reasonably related thereto; and (6) such Acquisition shall be consensual and shall have been approved by the board of directors of the Person whose Equity Interests or assets are proposed to be acquired and shall not have been preceded by an unsolicited tender offer for such Equity Interests by, or proxy contest initiated by, Parent or any of its Subsidiaries or an Affiliate thereof. “Permitted Business” means any business conducted by the Issuer or any of the Subsidiaries (including Bird Canada Inc.) on the Acquisition Closing Date and any business that, in the good faith determination of the Board of Directors, is similar or reasonably related, ancillary, supplemental, or complementary thereto or a reasonable extension, development, or expansion thereof.


 
17 US-DOCS\137446087.12 “Permitted Disposition” means: (1) licensing, on a non-exclusive basis, intellectual property rights in the ordinary course of business; (2) leasing or subleasing assets in the ordinary course of business; (3) (i) the lapse of registered intellectual property of the Issuer and its Subsidiaries to the extent not economically desirable in the conduct of their business or (ii) the abandonment of intellectual property rights in the ordinary course of business so long as, (A) with respect to copyrights, such copyrights are not material revenue generating copyrights, and (B) such lapse is not materially adverse to the interests of the Secured Parties; (4) any involuntary loss, damage or destruction of property; (5) any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property; (6) transfers of assets from the Issuer or any of its wholly owned Subsidiaries to the Issuer or any other of its wholly owned Subsidiaries; (7) the termination or expiration of any contract in accordance with its terms or any settlement, release, waiver or surrender of contractual rights or other litigation claims in the ordinary course of business; (8) use or transfer of money or Cash Equivalents in the ordinary course of business and in a manner that is not prohibited by the terms of this Agreement or the other Note Documents; (9) the granting of Permitted Liens and the making of Permitted Investments and Permitted Restricted Payments; (10) Disposition of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof; (11) the sale or disposition of equipment or other assets, to the extent that such equipment or other assets are exchanged for credit against the purchase price of similar replacement equipment or assets; (12) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business; and (13) the Disposition of obsolete, worn out or surplus property or property (including leasehold property interests) that is no longer economically practical in its business or commercially desirable to maintain or no longer used or useful equipment in the ordinary course of business.


 
18 US-DOCS\137446087.12 “Permitted Holders” means (i) means (i) each of the Persons owning Voting Stock of the Issuer on the Closing Date, (ii) each of the Persons owning Voting Stock of Bird Canada Inc. immediately prior to the Acquisition Closing Date and (iii) those individuals acting from time to time as officers, directors, managers, employees or members, or in any similar capacity, for any entity referred to in clause (i) above, together with, in the case of clause (iii), any entities owned or controlled by any such individuals, independently or together with one or more entities referred to above. “Permitted Indebtedness” means: (1) the Indebtedness owing to Purchasers under this Agreement and the other Note Documents; (2) Indebtedness arising under the Vehicle Financing Credit Agreement not to exceed the Maximum Vehicle Financing Principal Amount; (3) the Yorkville Note; (4) Indebtedness of Bird Canada Inc. existing on the Acquisition Closing Date and any Permitted Refinancing Indebtedness in respect of such Indebtedness; (5) Indebtedness existing on the Acquisition Closing Date (other than Indebtedness described in clauses (1) through (4) above) (provided that Indebtedness with an outstanding principal amount in excess of $500,000 shall only be permitted under this clause (5) if set forth on Schedule 8.3 hereto), and any Permitted Refinancing Indebtedness in respect of such Indebtedness; (6) Permitted Purchase Money Indebtedness and any Permitted Refinancing Indebtedness in respect of such Indebtedness; (7) Permitted Intercompany Investments; (8) Indebtedness incurred in the ordinary course of business under performance, surety, statutory, and appeal bonds; (9) Indebtedness owed to any Person providing property, casualty, liability, environmental or other insurance to the Note Parties, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the period in which such Indebtedness is incurred and such Indebtedness is outstanding only during such period; (10) the incurrence by any Note Party of Indebtedness under Hedging Agreements that are incurred for the bona fide purpose of hedging the interest rate, commodity, or foreign currency risks associated with such Note Party's operations or capital structure and not for speculative purposes;


 
19 US-DOCS\137446087.12 (11) Indebtedness incurred in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards or other similar Cash Management Services, in each case, incurred in the ordinary course of business; (12) contingent liabilities arising from agreements permitted hereunder, in each case, in respect of any indemnification obligation, adjustment of purchase price, non- compete, or similar obligation of any Note Party; (13) Indebtedness consisting of incentive, non-compete, consulting, deferred compensation or other similar arrangements entered into in the ordinary course of business with an officer or employee of any Note Party or its Subsidiaries to the extent permitted hereunder; (14) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts; (15) guarantees by the Issuer of Indebtedness of a Subsidiary or guarantees by a Subsidiary of Indebtedness of the Issuer or any Subsidiary with respect, in each case, to Indebtedness otherwise constituting Permitted Indebtedness hereunder; provided, that (i) if the Indebtedness that is being guaranteed is unsecured and/or subordinated to the Obligations, the guarantee shall also be unsecured and/or subordinated, as applicable, to the Obligations and (ii) such guarantees shall be a Permitted Intercompany Investment; (16) to the extent constituting Indebtedness, operating leases incurred in the ordinary course of business; (17) (i) letters of credit incurred in the ordinary course of business with cities and pursuant to import/export duties incurred in the ordinary course of business and (ii) letters of credit or bankers’ acceptances not otherwise described in this definition not exceeding $1.0 million at any time outstanding under this subclause (ii); and (18) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, other Indebtedness in an aggregate principal amount not to exceed $2.5 million at any time outstanding. “Permitted Intercompany Investments” means Investments made by (a) a Note Party to or in another Note Party, (b) a Subsidiary that is not a Note Party to or in another Subsidiary that is not a Note Party, (c) a Subsidiary that is not a Note Party to or in a Note Party, so long as, in the case of a loan or advance, the Indebtedness is subordinated to the satisfaction of the Collateral Agent, and (d) a Note Party to or in a Subsidiary that is not a Note Party so long as (i) the aggregate amount of all such Investments made by the Note Parties to or in Subsidiaries that are not Note Parties does not exceed $15.0 million at any time outstanding and (ii) no Default or Event of Default has occurred and is continuing either before or after giving effect to such Investment. “Permitted Investments” means: (1) Investments in cash and Cash Equivalents;


 
20 US-DOCS\137446087.12 (2) Investments in negotiable instruments deposited or to be deposited for collection in the ordinary course of business; (3) advances made in connection with purchases of goods or services in the ordinary course of business; (4) Investments received in settlement of amounts due to any Note Party or any of its Subsidiaries effected in the ordinary course of business or owing to any Note Party or any of its Subsidiaries as a result of Insolvency Proceedings involving an Account Debtor or upon the foreclosure or enforcement of any Lien in favor of a Note Party or its Subsidiaries; (5) Investments existing on the Acquisition Closing Date (provided that Investments in an amount in excess of $500,000 shall only be permitted under this clause (5) if set forth on Schedule 8.5 hereto), but not any increase in the amount thereof as set forth in such Schedule or any other modification of the terms thereof; (6) Permitted Intercompany Investments; (7) Permitted Acquisitions; (8) payroll, travel and similar advances to directors and employees of any Note Party or any of its Subsidiaries in the ordinary course of business; provided that the aggregate amount of such loans and advances outstanding at any time shall not exceed $500,000; (9) loans or advances to directors and employees of any Note Party or any of its Subsidiaries made in the ordinary course of business; provided that the aggregate amount of such loans and advances outstanding at any time shall not exceed $500,000; (10) (i) in the event that any Note Party or any of its Subsidiaries forms any Subsidiary in accordance with the terms hereof, Investments consisting of the Equity Interests issued by such Person to such Note Party or such Subsidiary; and (ii) Investments consisting of any additional Equity Interests issued by a wholly owned subsidiary of a Person to such Person; (11) Investments consisting of guarantees or other contingent obligations permitted under Section 8.3; (12) the acquisition of Bird Canada Inc. pursuant to the Share Purchase Agreement and any Investments held by Bird Canada Inc. on the Acquisition Closing Date; and (13) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, other Investments in an aggregate amount not to exceed $1.0 million at any time outstanding. “Permitted Liens” means, with respect to any Person:


 
21 US-DOCS\137446087.12 (1) Liens securing the Obligations; (2) Liens for Taxes, assessments and governmental charges or levies not yet due or payable or the payment of which is not required under Section 7.3; (3) Liens imposed by law, such as carriers', warehousemen's, mechanics', worker's, materialmen's, construction and other similar Liens arising in the ordinary course of business and securing obligations (other than Indebtedness for borrowed money) that are not overdue by more than 60 days or are being contested in good faith and by appropriate proceedings promptly initiated and diligently conducted, and a reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made therefor; (4) Liens existing on the Acquisition Closing Date; provided that Indebtedness with an outstanding principal amount in excess of $500,000 shall only be permitted under this clause (4) if set forth on Schedule 8.4 hereto; provided further that any such Lien shall only secure the Indebtedness, and encumber the assets, that it secures on the Acquisition Closing Date and any Permitted Refinancing Indebtedness in respect thereof; (5) purchase money Liens on equipment acquired (including in connection with a Permitted Acquisition) or held by any Note Party or any of its Subsidiaries in the ordinary course of its business to secure Permitted Purchase Money Indebtedness so long as such Lien only (i) attaches to such property and (ii) secures the Indebtedness that was incurred to acquire such property or any Permitted Refinancing Indebtedness in respect thereof; (6) deposits and pledges of cash securing (i) obligations incurred in respect of workers' compensation, unemployment insurance, social security or other forms of governmental insurance or benefits, (ii) the performance of bids, tenders, leases, contracts (other than for the payment of money) permits, licenses or statutory obligations or (iii) obligations on surety or appeal bonds or letters of credit, but only to the extent such deposits or pledges are made or letters of credit are made or otherwise arise or issued in the ordinary course of business and secure obligations not past due; (7) easements, rights of way, servitudes, zoning, building or similar restrictions and similar encumbrances on real property and exceptions, imperfections and irregularities in the title thereto that do not (i) secure obligations for the payment of money or (ii) materially impair the value of such property or its use by any Note Party or any of its Subsidiaries in the normal conduct of such Person's business; (8) Liens of landlords and mortgagees of landlords (i) arising by statute or under any Lease or related Contractual Obligation entered into in the ordinary course of business, (ii) on fixtures and movable tangible property located on the real property leased or subleased from such landlord, or (iii) for amounts not yet due or that are being contested in good faith by appropriate proceedings diligently conducted and


 
22 US-DOCS\137446087.12 for which adequate reserves or other appropriate provisions are maintained on the books of such Person in accordance with GAAP; (9) the title and interest of (i) a lessor or sublessor in and to personal property leased or subleased (other than through a Capitalized Lease) extending only to such personal property, or (ii) a licensor or sublicensor in or to the property subject to any license or sublicense or concession agreement permitted by this Agreement extending only to such property; (10) non-exclusive licenses of intellectual property rights in the ordinary course of business; (11) any encumbrances or restrictions (including put and call agreements) with respect to any Equity Interests constituting a Permitted Investment as required pursuant to the terms of the shareholder, joint venture or other agreement governing such Permitted Investment as in effect on the Closing Date; (12) judgment liens (other than for the payment of taxes, assessments or other governmental charges) securing judgments and other proceedings not constituting an Event of Default under Section 9.8; (13) rights of set-off or bankers' liens upon deposits of cash in favor of banks or other depository institutions, solely to the extent incurred in connection with the maintenance of such deposit accounts in the ordinary course of business; (14) Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under the definition of Permitted Indebtedness; (15) Liens solely on any cash earnest money deposits made by any Note Party in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition; (16) Liens securing Permitted Indebtedness under clause (2) and clause (10) of the definition of “Permitted Indebtedness,” including Liens securing Cash Management Services and Hedging Agreements secured under the documentation governing such Indebtedness, so long as any such Liens are subject to the Intercreditor Agreement; (17) UCC or PPSA financing statements filed (or similar filings under applicable law) solely as a precautionary measure in connection with operating leases; (18) in connection with the sale or transfer of any assets in a transaction not prohibited hereunder, customary rights and restrictions contained in agreements relating to such sale or transfer pending the completion thereof;


 
23 US-DOCS\137446087.12 (19) receipt of progress payments and advances from customers in the ordinary course of business to the extent the same creates a Lien on the related inventory and proceeds thereof; (20) Liens in the nature of the right of setoff in favor of counterparties to contractual agreements not otherwise prohibited hereunder with the Parent or any of its Subsidiaries in the ordinary course of business; (21) (i) Liens on cash pledged to secure obligations in respect of letters of credit incurred in the ordinary course of business with cities and pursuant to import/export duties incurred in the ordinary course of business and (ii) Liens on cash pledged to secure obligations in respect of letters of credit or bankers' acceptances not otherwise described in this definition not exceeding $1.0 million at any time outstanding under this subclause (ii); (22) Liens arising out of consignment or similar arrangements for the sale of goods in the ordinary course of business; (23) Liens on goods in favor of customs and revenues authorities imposed by applicable law arising in the ordinary course of business in connection with the importation of such goods; (24) Liens arising by operation of law under Article 2 of the UCC in favor of a reclaiming seller of goods or buyer of goods; (25) Liens on securities that are the subject of repurchase agreements constituting Cash Equivalents; (26) Permitted Liens (as defined in the Share Purchase Agreement) of Bird Canada Inc. existing on the Acquisition Closing Date; and (27) other Liens which do not secure Indebtedness for borrowed money or letters of credit and as to which the aggregate amount of the obligations secured thereby does not exceed $1.0 million at any time outstanding. “Permitted Purchase Money Indebtedness” means, as of any date of determination, Indebtedness (other than the Obligations, but including Capitalized Lease Obligations) incurred to finance the acquisition of any fixed assets secured by a Lien permitted under clause (4) of the definition of "Permitted Liens"; provided that (a)(i) such Indebtedness is incurred upon the acquisition and (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset financed plus expenses incurred in connection therewith or (b) such Indebtedness was assumed pursuant to a Permitted Acquisition; provided, further, that the aggregate principal amount of all such Indebtedness shall not exceed $1.0 million at any time outstanding. “Permitted Refinancing Indebtedness” means the extension of maturity, refinancing or modification of the terms of Indebtedness so long as:


 
24 US-DOCS\137446087.12 (1) after giving effect to such extension, refinancing or modification, the amount of such Indebtedness is not greater than the amount of Indebtedness outstanding immediately prior to such extension, refinancing or modification (other than by the amount of unpaid interest and premiums paid thereon and the fees and expenses incurred in connection therewith and by the amount of unfunded commitments with respect thereto); (2) such extension, refinancing or modification does not result in a shortening of the average weighted maturity (measured as of the extension, refinancing or modification) of the Indebtedness so extended, refinanced or modified; (3) such extension, refinancing or modification is pursuant to terms that are not less favorable to the Note Parties and the Lenders in any material respect than the terms of the Indebtedness (including terms relating to the collateral (if any) and subordination (if any)) being extended, refinanced or modified; and (4) the Indebtedness that is extended, refinanced or modified is not recourse to any Note Party or any of its Subsidiaries that is liable on account of the obligations other than those Persons which were obligated with respect to the Indebtedness that was refinanced, renewed, or extended. “Permitted Restricted Payments” means any of the following Restricted Payments made by: (a) any Note Party to another Note Party; (b) any Subsidiary of the Issuer to the Issuer (and any necessary Restricted Payments to another Subsidiary in order to ultimately make such Restricted Payment to the Issuer); (c) the Issuer and any of its Subsidiaries to pay dividends or make other distributions in the form of common Equity Interests; (d) the Issuer to (i) repurchase, redeem, or otherwise acquire Equity Interests (x) upon the exercise of stock options if such Equity Interests represent a portion of the exercise price of such options or (y) upon the forfeiture of restricted Equity Interests granted to any employee, director, or consultant; and (ii) make cash payments in lieu of the issuance of fractional shares representing insignificant interests in the Parent in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests in the Parent; and (iii) "net exercise" or "net share settle" warrants, options, or other compensatory Equity Interests; provided that the aggregate amount of all such Restricted Payments permitted by this clause (d) shall not exceed $500,000; (e) the redemption, repurchase, retirement or other acquisition of any Equity Interests or Junior Financing of any Note Party, in exchange for, or out of the proceeds of the substantially concurrent sale of, Equity Interests (other than any Disqualified Equity Interests) of the Issuer;


 
25 US-DOCS\137446087.12 (f) for the avoidance of doubt, repayment of the Yorkville Note pursuant to its terms; and (g) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, additional Restricted Payments in an aggregate amount not to exceed $2.5 million. “Person” means any individual, sole proprietorship, partnership, limited liability company, joint venture, company, trust, unincorporated organization, association, corporation, institution, public benefit corporation, firm, joint stock company, estate, entity, or Government Authority. “Preferred Stock” means any Equity Interest with preferential right of payment of dividends or upon liquidation, dissolution, or winding up. “Purchase Consideration” means Cash Consideration or Share Consideration, as applicable. “Purchasers’ Expenses” are (a) all reasonable audit fees and expenses, costs, and expenses (including reasonable attorneys’ fees and expenses (whether generated in house or by outside counsel), as well as appraisal fees, fees incurred on account of lien searches, inspection fees, and filing fees) for preparing, amending, negotiating and administering the Note Documents, and (b) all fees and expenses (including attorneys’ fees and expenses, as well as appraisal fees, fees incurred on account of lien searches, inspection fees, and filing fees) for defending and enforcing the Note Documents (including, without limitation, those incurred in connection with appeals or Insolvency Proceedings) or otherwise incurred by Collateral Agent and/or the Purchasers in connection with the Note Documents. “Record Date” means, with respect to any dividend or distribution on, or issuance to holders of, Common Stock, the date fixed (whether by law, contract, the Board of Directors, or otherwise) to determine the holders of Common Stock that are entitled to such dividend, distribution, or issuance. “Redemption Date” means the date fixed for the settlement of the repurchase of any Notes by the Issuer pursuant to a Redemption. “Redemption Notice Date” means, with respect to a Redemption, the date on which the Issuer sends the Redemption Notice for such Redemption pursuant to Section 2.7(c). “Redemption Price” means the cash price payable by the Issuer to redeem any Note upon its Redemption, calculated pursuant to Section 2.7(a) or Section 2.7(b), as applicable. “Required Purchasers” means Purchasers holding more than 50% in aggregate principal amount of the Notes (including, for the avoidance of doubt, any PIK Interest paid with respect thereto). “Restricted Investment” means an Investment other than a Permitted Investment. “Restricted Payment” means the Issuer or any Subsidiary acting to:


 
26 US-DOCS\137446087.12 (1) declare or pay any dividend or make any payment or distribution on account of the Issuer’s or any of its Subsidiaries’ Equity Interests, including any payment made in connection with any merger, amalgamation, or consolidation involving the Issuer (other than (A) dividends or distributions by the Issuer payable solely in Equity Interests of the Issuer or (B) dividends or distributions by a Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Subsidiary other than a wholly owned Subsidiary, the Issuer or a Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities); (2) purchase, redeem, defease, or otherwise acquire or retire for value any Equity Interests of the Issuer or any direct or indirect parent of the Issuer, including in connection with any merger, amalgamation, or consolidation; (3) make any principal payment on, or redeem, repurchase, defease, or otherwise acquire or retire for value, in each case, prior to any scheduled repayment, sinking fund payment, or maturity, any Subordinated Indebtedness of the Issuer or any Guarantor (other than the payment, redemption, repurchase, defeasance, acquisition, or retirement of (A) Subordinated Indebtedness of the Issuer or any Guarantor in anticipation of satisfying a sinking fund obligation, principal installment, or final maturity, in each case, due within one year of the date of such payment, redemption, repurchase, defeasance, acquisition, or retirement and (B) Indebtedness permitted under clause (7) of the definition of “Permitted Indebtedness”; or (4) make any Restricted Investment. “Sanctioned Country” means a country subject to a sanctions program maintained under any Anti-Terrorism Law, including any such country identified on the list maintained by OFAC and available at http://www.treasury.gov/resource-center/sanctions/Programs/ Pages/Programs.aspx, or as otherwise published from time to time. “Sanctioned Person” means (a) a person named on the list of “Specially Designated Nationals” or “Blocked Persons” maintained by OFAC available at http://www.treasury.gov/ resource-center/sanctions/SDN-List/Pages/default.aspx, or as otherwise published from time to time, (b) (i) an agency of the government of a Sanctioned Country, (ii) an organization controlled by a Sanctioned Country, or (iii) a person resident in a Sanctioned Country, to the extent subject to a sanctions program administered by OFAC, or (c) any individual person, group, regime, entity, or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned, or debarred person, group, regime, entity, or thing, or subject to any limitations or prohibitions (including, but not limited, to the blocking of property or rejection of transactions), under any Anti- Terrorism Law. “Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange or market on which the Common Stock is listed or admitted for trading or, if the Common Stock is not then listed on a U.S. national or


 
27 US-DOCS\137446087.12 regional securities exchange, on the principal other market on which the Common Stock is then traded. If the Common Stock is not so listed or traded, “Scheduled Trading Day” means a Business Day. “SEC” means the U.S. Securities and Exchange Commission. “Security Documents” means any security agreements, pledge agreements, mortgages, charges, control agreements, any note, notes, or guarantees executed by the Issuer or any other Person, any agreements creating or perfecting rights in the Collateral and other collateral securing any of the Obligations, and any other present or future agreement entered into by the Issuer, any Guarantor, or any other Person for the benefit of the Purchasers and Collateral Agent. “Secured Parties” means the Collateral Agent and the Purchasers. “Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. “Share Consideration” means consideration paid by Purchasers for the purchase of Notes by delivery of Company Shares (as defined in the Share Purchase Agreement) held by the relevant Purchaser of the number and class specified in Schedule 2.1. “Share Purchase Agreement” means that certain Share Purchase Agreement, dated as of the Closing Date, by and among 1393631 B.C. Unlimited Liability Company, Bird Canada Inc., certain of the Purchasers and/or certain of their Affiliates, and the sellers’ representative named therein, as the same may be amended, restated, supplemented, or otherwise modified from time to time. “Solvent” means, with respect to any Person and as of any particular date, (a) the present fair market value of the assets of such Person is not less than the total liabilities of such Person, (b) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business, (c) such Person is not incurring debts or liabilities beyond its ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in any business or transaction, and is not about to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged. “Stock Price” means the price per share of Common Stock offered in the Change of Control. “Subordinated Indebtedness” means (a) with respect to the Issuer, any Indebtedness of the Issuer which is, by its terms, expressly subordinated in right of payment to the Notes, and (b) with respect to any Guarantor, any Indebtedness of such Guarantor which is, by its terms, expressly subordinated in right of payment to its Guarantee. “Subsidiary” means, with respect to any Person, any Person (a) of which more than 50% of the voting power of the Voting Stock or other Capital Stock is owned or controlled, directly or indirectly, by such Person or through one or more intermediaries (b) of which shares of stock of


 
28 US-DOCS\137446087.12 each class or other interests having ordinary voting power (other than stock or other interests having such power only by reason of the happening of a contingency) to elect a majority of the Board of Directors or other managers of such entity are at the time owned, or management of which is otherwise controlled: (i) by such Person, (ii) by one or more Subsidiaries of such Person or (iii) by such Person and one or more Subsidiaries of such Person. Where such term is used without a referent Person, such term shall be deemed to mean a Subsidiary of the Issuer, unless the context otherwise requires. “Trading Day” means a day on which (a) there is no Market Disruption Event and (b) trading in the Common Stock (or other security for which a closing sale price must be determined) generally occurs on the NYSE or, if the Common Stock (or such other security) is not then listed or quoted on the NYSE, on the other principal U.S. national or regional securities exchange on which the Common Stock (or such other security) is then listed or, if the Common Stock (or such other security) is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock (or such other security) is then traded; provided that if the Common Stock (or such other security) is not so listed or traded, “Trading Day” means a Business Day. “Transactions” means (i) the purchase and sale of the shares of Bird Canada Inc. pursuant to the terms of the Share Purchase Agreement, (ii) the issuance of Common Stock in consideration for the shares of Bird Canada Inc. pursuant to the Share Purchase Agreement, (iii) the exchange of Company Options for Parent Options (each as defined in the Share Purchase Agreement) pursuant to the terms of the Share Purchase Agreement, (iv) the entry into the Voting Agreement, (v) the designation of a new series of non-economic Preferred Stock of the Issuer in connection with the Transactions, and (vi) the issuances of Notes contemplated by this Agreement on the Closing Date and the Acquisition Closing Date. “Treasury Rate” means (subject to a 0% floor) the yield to maturity as of the Redemption Notice Date of the most recently issued United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (or is obtainable from the Federal Reserve System’s Data Download Program as of the date of such H.15) that has become publicly available at least two Business Days prior to such date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the date of such Redemption Notice to December 30, 2024; provided, however, that if the period from such date to December 30, 2024 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. “U.S. dollars” and “$” each mean lawful money of the United States. “Vehicle Financing Agent” means MidCap Financial Trust, in its capacity as administrative agent under the Vehicle Financing Debt Documents, or any successor administrative agent permitted by the terms thereof. “Vehicle Financing Amendment” means, collectively, (a) that certain amendment to the Vehicle Financing Credit Agreement, dated as of December 30, 2022, by and among Bird US Opco, LLC, as borrower, Bird US Holdco, LLC, as holdco guarantor, the Vehicle Financing


 
29 US-DOCS\137446087.12 Lenders, and the Vehicle Financing Agent, and (b) that certain amendment to the Vehicle Financing Scooter Lease, dated as of December 30, 2022, by and between Bird US Opco, LLC, as Lessor, and Bird Rides, as Lessee and Servicer, in order to (i) extend the Final Maturity Date (as defined in the Vehicle Financing Agreement) to January 13, 2025, (ii) allow the Note Parties to issue and guaranty the Notes, (iii) subject to satisfaction of certain conditions, release of the guarantee by Bird Rides International Holding, Inc. of the obligations under the Vehicle Financing Agreement, (iv) release the Vehicle Financing Agreement Agent’s Liens in the assets and property of Bird Rides (but not, for the avoidance of doubt, the release of Bird Rides as a guarantor of Bird US Opco, LLC’s obligations under the Vehicle Financing Agreement), (v) permit the granting of a guaranty by the Bird Rides of the Notes, which will, upon satisfaction of certain conditions, become pari passu in priority of payment with the guarantee by Bird Rides of Bird US Opco, LLC’s obligations under the Vehicle Financing Agreement, and (vi) permit the granting of a guaranty by Bird Canada Inc. of the Notes and of first priority Liens in the property and assets of Bird Canada Inc., shall have become effective and shall be in full force and effect and shall be in form and substance reasonably satisfactory to the Purchasers “Vehicle Financing Credit Agreement” means that certain Loan and Security Agreement, dated as of April 27, 2021, by and among Bird US Opco, LLC, as Borrower, Bird US Holdco, LLC, as holdco guarantor, the Vehicle Financing Lenders, and the Vehicle Financing Agent, as the same may be amended, restated, supplemented, modified, extended, restructured, renewed, refinanced, increased, replaced, or refunded in whole or in part from time to time and whether by the same or any other agent, lender, or investor or group of lenders or investors. “Vehicle Financing Debt” means the “Borrower Obligations” (under and as defined in the Vehicle Financing Credit Agreement) and any other Indebtedness of the Bird Transaction Parties (as defined in the Vehicle Financing Credit Agreement) to the Vehicle Financing Agent and the Vehicle Financing Lenders under the Vehicle Financing Debt Documents. “Vehicle Financing Debt Documents” means, collectively, the Vehicle Financing Credit Agreement, the Vehicle Financing Scooter Lease, and the other agreements, guaranties, instruments, and documents delivered in connection with the Vehicle Financing Debt, in each case, as amended, restated, supplemented, modified, extended, restructured, renewed, refinanced, increased, replaced, or refunded in whole or in part from time to time and whether by the same or any other agent, lender, or investor or group of lenders or investors. “Vehicle Financing Lenders” means the “Lenders” (under and as defined in the Vehicle Financing Credit Agreement). “Vehicle Financing Scooter Lease” means that certain Master Scooter Operating Lease and Servicing Agreement, dated as of April 27, 2021, by and between Bird US Opco, LLC, as Lessor, and Bird Rides, as Lessee and Servicer, as the same may be amended, restated, supplemented, modified, extended, restructured, renewed, refinanced, increased, replaced, or refunded in whole or in part from time to time and whether by the same or any other agent, lender, or investor or group of lenders or investors.


 
30 US-DOCS\137446087.12 “Voting Agreement” means that certain Voting Agreement, dated as of the Closing Date, among the Issuer, certain of the Purchasers and/or certain of their Affiliates, and the other parties thereto. “Voting Stock” means, with respect to any Person, such Person’s Capital Stock having the right to vote for the election of directors of such Person under ordinary circumstances. “Yorkville Note” means the unsecured Indebtedness owed by the Issuer to YA II PN, Ltd. pursuant to that certain promissory note (No. BRDS-1) not to exceed a principal amount of $4,200,000, plus a redemption premium of $84,000, as amended, restated, supplemented, or otherwise modified from time to time prior to the Closing Date. 1.5 Material Adverse Effect. For purposes of this Agreement and the certificates delivered pursuant to this Agreement on the Closing Date, in each case as of the Closing Date, the definition of “Material Adverse Effect” as of the Closing Date is qualified by reference to the Issuer’s disclosure to the Purchasers pursuant to the most recently delivered Model prior to the Closing Date, or as disclosed in public filings of the Issuer prior to the Closing Date; provided that the Purchasers shall not be precluded from referring to such disclosure or Model in the context of changes in facts or circumstances after the Closing Date in the evaluation of any potential Material Adverse Effect. 2. NOTES AND TERMS OF PAYMENT 2.1 Issuance of Notes. (a) Purchase and Sale of Notes. (i) Subject to the terms and conditions of this Agreement, on the Closing Date, the Issuer shall issue and sell to each applicable Purchaser, and each applicable Purchaser shall severally purchase and acquire from the Issuer, for the Cash Consideration specified in Schedule 2.1, Secured Promissory Notes (each a “Note” and, collectively, the “Notes”) in an aggregate principal amount of $30,100,000 (such Purchasers receiving Notes for Cash Consideration on the Closing Date, “Cash Consideration Purchasers”). (ii) Subject to the terms and conditions of this Agreement and the Share Purchase Agreement, on the Acquisition Closing Date, the Issuer shall issue and sell to each applicable Purchaser, and each applicable Purchaser shall severally purchase and acquire from the Issuer, for the Share Consideration specified in Schedule 2.1, Notes in an aggregate principal amount of $26,977,674 (such Purchasers receiving Notes for Share Consideration on the Acquisition Closing Date, “Share Consideration Purchasers”). (iii) The Issuer and each Purchaser agrees that Schedule 2.1 hereto sets forth, with respect to each Purchaser, the aggregate principal amount of Notes to be issued and sold by the Issuer to such Purchaser and the Purchase Consideration to be paid or delivered by such Purchaser for the Notes. The closing of the purchase and sale of the Notes to the Cash Consideration Purchasers (the “Closing”) shall


 
31 US-DOCS\137446087.12 occur on the Closing Date, and the purchase and sale of the Notes to the Share Consideration Purchasers (the “Acquisition Closing”) shall occur on the Acquisition Closing Date. (iv) On the Closing Date, (a) each Purchaser shall cause a wire transfer to be made in same day funds to an account of the Issuer designated in writing by the Issuer to the Purchasers in an amount specified opposite such Purchasers name on Schedule 2.1 hereto and (b) the Issuer shall deliver to each Purchaser the principal amount of Notes specified for Cash Consideration on Schedule 2.1 hereto. On the Acquisition Closing Date, substantially concurrently with the consummation of the acquisition of Bird Canada Inc. pursuant to the Share Purchase Agreement, the Issuer shall deliver to each Purchaser the principal amount of Notes specified for Share Consideration on Schedule 2.1 hereto. (b) Repayment; Principal and Interest Adjustments. (i) The Issuer shall make semi-annual payments of interest only on each Interest Payment Date, commencing on June 30, 2023, and continuing on each Interest Payment Date thereafter to and including the Maturity Date. All outstanding principal and accrued and unpaid interest with respect to the Notes shall be due and payable in full on the Maturity Date. (ii) If any Share Consideration Purchaser, in its capacity as seller under the Share Purchase Agreement (in such capacity “Seller”) or any of its Seller Related Parties (as defined in the Share Purchase Agreement) owes any Unpaid Amounts (as defined in the Share Purchase Agreement) then the Issuer shall have the right to recover such Unpaid Amount owed or payable to it in accordance with the Share Purchase Agreement, including by (1) reducing the principal amount of the Notes issued in exchange for Share Consideration (including, for the avoidance of doubt, any PIK Interest paid with respect thereto) and/or (2) subtracting from the interest payable on any Interest Payment Date, in each case, an amount equal to such Seller’s or Seller Related Party’s Unpaid Amounts (or portion thereof which remains unpaid). For the avoidance of doubt, interest shall not be deemed to have accrued and be payable with respect to any principal amount of Notes (including, for the avoidance of doubt, any PIK Interest paid with respect thereto) so reduced hereby. (c) Excess Proceeds Offer. (i) If on any date the Issuer or any Subsidiary shall receive Net Cash Proceeds from any Disposition, the Issuer or such Subsidiary may, within 180 days after receipt of such Net Cash Proceeds, apply an amount equal to 100% of such Net Cash Proceeds, at its option: (1) to reduce obligations under Indebtedness that is either secured on a priority basis to the Notes or is otherwise contractually senior


 
32 US-DOCS\137446087.12 to the Notes (including, for the avoidance of doubt, the Vehicle Financing Debt); (2) to repay the Notes ; (3) to make an investment in any one or more businesses, assets, or property, plant, or equipment, or acquire one or more businesses, assets, or property, plant, or equipment, in each case, that are used or useful in a Permitted Business, or that replace the businesses, assets, properties, plants, and/or equipment that are the subject of such Disposition; or (4) any combination of the foregoing; provided that the Issuer and its Subsidiaries shall be deemed to have complied with the provisions described in this Section 2.1(c)(i) if and to the extent that, within 180 days after the Disposition that generated the Net Cash Proceeds, the Issuer or such Subsidiary, as applicable, has entered into and not abandoned or rejected a binding agreement to undertake such action described in this Section 2.1(c)(i), and that action is thereafter completed within 90 days after the end of such 180-day period. (ii) To the extent that the Issuer or such Subsidiary does not invest or apply an amount equal to the Net Cash Proceeds as provided and within the time period set forth in Section 2.1(c)(i), the Net Cash Proceeds less amounts so invested or applied will be deemed to constitute “Excess Proceeds” (provided that any amount of proceeds offered to Purchasers pursuant to Section 2.1(c)(i)(2)(x) or pursuant to an Excess Proceeds Offer made at any time after the Disposition shall be deemed to have been applied as required and shall not be deemed to be Excess Proceeds without regard to the extent to which such offer is accepted by the Purchasers). When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Issuer shall make an offer (an “Excess Proceeds Offer”) to all Purchasers to purchase the maximum principal amount of such Notes that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to the applicable Redemption Price), plus accrued and unpaid interest, if any to, but excluding, the date fixed for the closing of such offer in accordance with the procedures set forth in this Agreement. The Issuer will commence an Excess Proceeds Offer with respect to Excess Proceeds within 30 Business Days after the date that such Excess Proceeds exceed $5.0 million by sending to each Purchaser a written notice of such Excess Proceeds Offer at least 30 days but not more than 60 days before the purchase date (which notice shall, if the Notes are to be purchased in part only, state the portion of the principal amount thereof that is to be purchased). The Issuer may satisfy the foregoing obligations with respect to such Excess Proceeds from a Disposition by making an Excess Proceeds Offer with respect to such Excess Proceeds at any time prior to the expiration of the application period or by electing to make an Excess Proceeds Offer with respect to such Excess Proceeds before the aggregate amount of Excess Proceeds exceeds $5.0 million.


 
33 US-DOCS\137446087.12 (iii) To the extent that the aggregate amount of Notes a tendered or otherwise surrendered in connection with an Excess Proceeds Offer made with Excess Proceeds is less than the amount offered in an Excess Proceeds Offer, the Issuer may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Agreement. If the aggregate principal amount of Notes tendered or otherwise surrendered by holders thereof exceeds the amount offered in an Excess Proceeds Offer, the Issuer shall select the Notes to be purchased on a pro rata basis or such other basis as the Issuer believes is reasonably necessary. Upon completion of any such Excess Proceeds Offer, the amount of Excess Proceeds shall be reset at zero. To the extent the Excess Proceeds exceed the outstanding aggregate principal amount of the Notes, the Issuer need only make an Excess Proceeds Offer up to the outstanding aggregate principal amount of Notes at the applicable Redemption Price, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, and any additional Excess Proceeds shall not be subject to this Section 2.1(c) and shall be permitted to be used for any purpose in the Issuer’s discretion. (iv) Notwithstanding the provisions of this Section 2.1(c), the Issuer shall not be required to make an Excess Proceeds Offer if a third party makes an offer to repurchase the Notes at a price at or above the applicable Redemption Price thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, in the manner, at the times, and otherwise in compliance with the requirements set forth in this Agreement applicable to an Excess Proceeds Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such offer. Additionally, the Issuer shall not be required to make an Excess Proceeds Offer if the Issuer has previously issued a notice of a full redemption pursuant to the provisions of Section 2.7. (v) The provisions of this Section 2.1(c) relative to the Issuer’s obligation to make an offer to repurchase the Notes as a result of an Disposition may be waived or modified at any time with the written consent of the Required Purchasers. (vi) A new Note in principal amount equal to the unpurchased portion of any Note purchased in part will be issued in the name of the Purchaser thereof upon cancellation of the Note. On and after the purchase date, unless the Issuer defaults in payment of the purchase price, interest shall cease to accrue on Notes or portions thereof purchased. (d) Change of Control Offer. (i) Upon the occurrence of a Change of Control, each Purchaser shall have the right to require the Issuer to purchase all or any part of such Purchaser’s Notes at a purchase price in cash equal to the applicable Redemption Price thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase.


 
34 US-DOCS\137446087.12 (ii) Prior to or within 30 days following any Change of Control the Issuer shall deliver a notice (a “Change of Control Offer”) to each Purchaser describing (A) that a Change of Control has occurred or, if the Change of Control Offer is being made in advance of a Change of Control, that a Change of Control is expected to occur, and that such Purchaser has, or upon such occurrence will have, the right to require the Issuer to purchase such Purchaser’s Notes at a purchase price in cash equal to the aggregate principal amount of Notes at the Redemption Price, if applicable, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, (B) the purchase date (which shall be at least 30 days but not more than 60 days after the date such notice is delivered (unless delivered in advance of the occurrence of such Change of Control)), (C) if such notice is delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control, and (D) any other instructions determined by the Issuer that a Purchaser must follow in order to have its Notes purchased. For the avoidance of doubt, a Change of Control Offer may be made in advance of a Change of Control, and conditioned upon such Change of Control. (iii) Notwithstanding the provisions of this Section 2.1(d), the Issuer shall not be required to make a Change of Control Offer if a third party makes an offer to repurchase the Notes at the aggregate principal amount of Notes at the Redemption Price, if applicable, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, in the manner, at the times, and otherwise in compliance with the requirements set forth in this Agreement applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such offer. Additionally, the Issuer shall not be required to make a Change of Control Offer if the Issuer has previously issued a notice of a full redemption pursuant to the provisions of Section 2.7, which may be subject to the consummation of the Change of Control. (iv) The provisions of this Section 2.1(d) relative to the Issuer’s obligation to make an offer to repurchase the Notes as a result of a Change of Control may be waived or modified at any time with the written consent of the Required Purchasers. (v) A new Note in principal amount equal to the unpurchased portion of any Note purchased in part will be issued in the name of the Purchaser thereof upon cancellation of the Note. On and after the purchase date, unless the Issuer defaults in payment of the purchase price, interest shall cease to accrue on Notes or portions thereof purchased. (e) Open-Market Purchases. The Issuer or its Affiliates may at any time and from time to time purchase Notes in the open market, through privately negotiated transactions with third parties, pursuant to one or more tender or exchange offers, or otherwise, upon such terms, and at such prices, as well as with such consideration, as the Issuer or any such Affiliates may determine or otherwise.


 
35 US-DOCS\137446087.12 2.2 Payment of Interest on the Notes. (a) Interest Rate. Subject to Section 2.2(b), the principal amount outstanding under the Notes (including, for the avoidance of doubt, any PIK Interest paid with respect thereto) shall accrue interest at a per annum rate equal to 12.0%, which interest shall be payable semi-annually in arrears in accordance with Sections 2.1(b) and 2.2(d). Such interest shall accrue commencing on, and including, the Closing Date, and shall accrue on the principal amount outstanding under the Notes to, but excluding, the day on which the Notes are paid in full (or any payment is made hereunder). (b) Default Rate. Immediately upon the occurrence and during the continuance of an Event of Default, all Obligations shall accrue interest at a per annum rate equal to 18.0% (the “Default Rate”). Payment or acceptance of the increased interest rate provided in this Section 2.2(b) is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of the Purchasers. (c) 360-Day Year. Interest shall be computed on the basis of a 360-day year for the actual number of days elapsed. (d) Payments. Except as otherwise expressly provided herein, all payments by the Issuer under the Note Documents shall be made to the respective Purchaser to which such payments are owed in immediately available funds on the date specified herein. Unless otherwise provided, interest is payable on each Interest Payment Date. Payments of principal and/or interest or any Redemption Price received after 12:00 noon Eastern time are considered received at the opening of business on the next Business Day. When a payment is due on a day that is not a Business Day, the payment is due the next Business Day and additional fees or interest, as applicable, shall continue to accrue until paid. All payments to be made by Issuer hereunder or under any other Note Document, including payments of principal and interest, and all fees, expenses, indemnities and reimbursements, shall be made without set-off, recoupment or counterclaim, in lawful money of the United States and in immediately available funds. Notwithstanding the foregoing, the Issuer may elect to pay the interest on the principal amount outstanding under the Notes payable pursuant to this Section 2.2 as paid-in-kind interest, added to the aggregate principal amount of the Note on the date such interest would otherwise be due hereunder (the amount of any such paid-in-kind interest being “PIK Interest”). Issuer shall notify each Purchaser in writing of any such election at least two (2) Business Days before the start of the applicable period during which Issuer has elected to pay PIK Interest. Notwithstanding anything in this Section 2.2(d) to the contrary, the interest payable on the first Interest Payment Date following the Closing Date shall be PIK Interest. 2.3 Purchasers’ Expenses. The Issuer shall pay to the Purchasers all Purchasers’ Expenses (including reasonable attorneys’ fees and expenses for documentation and negotiation of this Agreement) incurred through and after the Closing Date, when due. 2.4 Collateral Agent Fees. Issuer shall pay all fees payable to Collateral Agent as set forth in the Fee Letter at the times and in the amounts specified therein (such fees being referred


 
36 US-DOCS\137446087.12 to herein collectively as the “Collateral Agent Fees”). The Collateral Agent Fees are in addition to reimbursement of the Collateral Agent Expenses in accordance with Exhibit C. The Collateral Agent Fees shall be fully earned when due and shall not be refundable for any reason whatsoever. 2.5 Taxes; Increased Costs. The Issuer, the Collateral Agent, and the Purchasers each hereby agree to the terms and conditions set forth on Exhibit D attached hereto. 2.6 Notes. The Notes shall be substantially in the form attached as Exhibit B hereto, and the terms of this Agreement shall be incorporated by reference into the Notes as if set forth therein; provided that, in the event of any conflict between the terms of this Agreement and the Notes, the terms of this Agreement shall control. The Issuer irrevocably authorizes each Purchaser to make or cause to be made, on or about the Closing Date or Acquisition Closing Date, as applicable, or at the time of receipt of any payment of principal on such Purchaser’s Note, an appropriate notation on such Purchaser’s Note (the “Purchaser’s Note Record”) reflecting the purchase of such Notes or (as the case may be) the receipt of such payment. The outstanding amount of the Notes set forth on such Purchaser’s Note Record shall be, absent manifest error, prima facie evidence of the principal amount thereof owing and unpaid to such Purchaser, but the failure to record, or any error in so recording, any such amount on such Purchaser’s Note Record shall not limit or otherwise affect the obligations of Issuer under any Note or any other Note Document to make payments of principal of or interest on, or any Redemption Price in respect of, any Note when due. Upon receipt of an affidavit of an officer of a Purchaser as to the loss, theft, destruction, or mutilation of its Note, the Issuer shall issue, in lieu thereof, a replacement Note in the same principal amount thereof and of like tenor. 2.7 Redemption. The Issuer may redeem the Notes at its option as set forth in this Section 2.7. (a) Optional Redemption on and After December 30, 2024. On and after December 30, 2024, the Issuer may redeem the Notes (a “Redemption”), at its option, in whole at any time or in part from time to time, at the following redemption prices (expressed as a percentage of principal amount, including, for the avoidance of doubt, any PIK Interest paid with respect thereto), plus accrued and unpaid interest on such Notes to, but excluding, the Redemption Date, if redeemed during the 12-month period commencing on December 30 of the years set forth below: Period Redemption Price 2024 .......................................................... 107.500% 2025 .......................................................... 105.000% 2026 .......................................................... 102.500% (b) Optional Redemption Prior to December 30, 2024. At any time prior to December 30, 2024, the Issuer may redeem the Notes, at its option, in whole at any time or in part from time to time, at a redemption price equal to 100% of the principal amount of the Notes redeemed (including, for the avoidance of doubt, any PIK Interest paid with respect thereto), plus the Applicable Premium determined as of the Redemption Date, plus accrued and unpaid interest on such Notes to, but excluding, the Redemption Date.


 
37 US-DOCS\137446087.12 (c) Redemption Notice. The Redemption Date for any Redemption will be a day of the Issuer’s choosing that is at least five days but no greater than 60 days after the Redemption Notice Date for such Redemption. To call any Notes for Redemption, the Issuer must send to each Purchaser holding such Notes a written notice of such Redemption (a “Redemption Notice”) describing (i) the Redemption Date for such Redemption, (ii) the Redemption Price per $1,000 principal amount of Notes for such Redemption, (iii) any conditions to such Redemption, (iv) that Notes called for Redemption may be converted at any time before the Close of Business on the Business Day immediately before the Redemption Date (or, if the Issuer fails to pay the Redemption Price due on such Redemption Date in full, at any time until such time as the Issuer pays such Redemption Price in full); and (v) the Conversion Rate in effect on the Redemption Notice Date for such Redemption and a description and quantification of any adjustments to the Conversion Rate that may result from such Redemption (including pursuant to Section 2.9) (d) Payment of the Redemption Price. The Issuer will cause the applicable Redemption Price for a Note subject to Redemption to be paid to the Purchaser thereof on or before the applicable Redemption Date. For the avoidance of doubt, interest payable on any Note (or portion thereof) subject to any Redemption must be paid pursuant to this Section 2.7. (e) Redemption Conditional. In connection with any redemption of Notes, any such redemption may, at the Issuer’s discretion, be subject to one or more conditions precedent, including, but not limited to, consummation of any related transaction or series of transactions. The Redemption Date of any redemption that is subject to satisfaction of one or more conditions precedent may, in the Issuer’s discretion and to the extent stated in the applicable Redemption Notice, be delayed until such time as any or all such conditions shall be satisfied (or waived by the Issuer in its sole discretion), or such redemption may not occur and any notice with respect to such redemption may be modified, extended, or rescinded in the event that any or all such conditions shall not have yet been satisfied (or waived by the Issuer in its sole discretion) by the Redemption Date, or by the Redemption Date so delayed (which may exceed 60 days from the date of the Redemption Notice in such case), by providing notice thereof to the Purchasers. 2.8 Conversion. Subject to the provisions of this Section 2.8, each Purchaser may, at its option, convert such Purchasers’ Notes into shares of Common Stock. Notes may be converted in part, but only in Authorized Denominations, and provisions of this Section 2.8 applying to the conversion of a Note in whole will equally apply to conversions of a permitted portion of a Note. (a) When Notes May Be Converted. (i) A Purchaser may convert its Notes at any time and until the Close of Business on the Scheduled Trading Day immediately before the Maturity Date. (ii) If the Issuer calls the Notes for Redemption pursuant to Section 2.7, then a Purchaser may not convert the Notes after the Close of Business on the Scheduled Trading Day immediately before the applicable Redemption Date,


 
38 US-DOCS\137446087.12 except to the extent the Issuer fails to pay the Redemption Price for such Note in accordance with this Agreement. (b) Conversion Procedures. (i) To convert all or a portion of a Note, a Purchaser must (1) complete, manually sign, and deliver to the Issuer the conversion notice attached to such Note (or a copy of such conversion notice) and (2) deliver such Note to the Issuer (at which time such conversion will become irrevocable). (ii) At the Close of Business on the Conversion Date for a Note (or any portion thereof) to be converted, such Note (or such portion) will (unless there occurs a Default in the delivery of the shares of Common Stock due upon such conversion) be deemed to cease to be outstanding (and, for the avoidance of doubt, no Person will be deemed to hold such Note (or such portion thereof) as of the Close of Business on such Conversion Date). (iii) The Person in whose name any share of Common Stock is issuable upon conversion of any Note will be deemed to become the holder of record of such share as of the Close of Business on the Conversion Date for such conversion. (iv) If a Purchaser converts a Note, the Issuer will pay any documentary, stamp, or similar issue or transfer tax or duty due on the issue of any shares of Common Stock upon such conversion; provided, however, that if any tax or duty is due because such Purchaser requested such shares to be registered in a name other than such Purchaser’s name, then such Purchaser will pay such tax or duty and, until having received a sum sufficient to pay such tax or duty, the Issuer may refuse to deliver any such shares to be issued in a name other than that of such Purchaser and no Default or Event of Default shall be deemed to have occurred. (c) Settlement Upon Conversion. Upon the conversion of any Note, the Issuer will settle such conversion by delivering shares of Common Stock. The number of shares of Common Stock due in respect of each $1,000 principal amount of a Note (including, for the avoidance of doubt, any PIK Interest previously paid with respect thereto) to be converted will be a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion. (i) If the number of shares of Common Stock deliverable pursuant to this Section 2.8(c) upon conversion of any Note is not a whole number, then such number will be rounded to the nearest whole number. (ii) If a Purchaser converts more than one Note on a single Conversion Date, then the shares of Common Stock due in respect of such conversion will be computed based on the total principal amount of Notes converted on such Conversion Date by such Purchaser.


 
39 US-DOCS\137446087.12 (iii) The Issuer will deliver the shares of Common Stock due upon the conversion of any Note to the Purchaser on or before the second Business Day immediately after the Conversion Date for such conversion. (iv) At all times when any Notes are outstanding, the Issuer will reserve, out of its authorized but unissued and unreserved shares of Common Stock, a number of shares of Common Stock sufficient to permit the conversion of all then- outstanding Notes, assuming the Conversion Rate is increased by the maximum amount pursuant to which the Conversion Rate may be increased pursuant to Section 2.9. (v) Each Conversion Share delivered upon conversion of any Note will be duly and validly issued, fully paid, non-assessable, free from preemptive rights, and free of any Lien (except to the extent of any Lien created by the action or inaction of the Purchaser holding such Note or the Person to whom such Conversion Share will be delivered). If the Common Stock is then listed on any securities exchange, or quoted on any inter-dealer quotation system, then the Issuer will cause each Conversion Share, when delivered upon conversion of any Note, to be admitted for listing on such exchange or quotation on such system. (vi) Upon conversion, a Purchaser shall not receive any separate cash payment for accrued and unpaid interest, if any. The Issuer’s delivery of the Conversion Shares shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but excluding, the relevant Conversion Date. As a result, accrued and unpaid interest, if any (other than, for the avoidance of doubt, PIK Interest), to, and including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished, or forfeited. (d) Adjustments to the Conversion Rate. The Conversion Rate will be adjusted from time to time as follows (for the avoidance of doubt, the Transactions shall not be deemed to result in any adjustment to the Conversion Rate): (i) Stock Dividends, Splits, and Combinations. If the Issuer issues solely shares of Common Stock as a dividend or distribution on all or substantially all shares of the Common Stock, or if the Issuer effects a stock split or a stock combination of the Common Stock (in each case, excluding an issuance solely pursuant to a Common Stock Change Event, as to which Section 2.10 will apply), then the Conversion Rate will be adjusted based on the following formula: where: CR0 = the Conversion Rate in effect immediately before the Close of Business on the Record Date for such dividend or distribution, or 0 1 01 OS OSCRCR ´=


 
40 US-DOCS\137446087.12 immediately before the Open of Business on the effective date of such stock split or stock combination, as applicable; CR1 = the Conversion Rate in effect immediately after the Close of Business on such Record Date or the Open of Business on such effective date, as applicable; OS0 = the number of shares of Common Stock outstanding immediately before the Close of Business on such Record Date or the Open of Business on such effective date, as applicable, without giving effect to such dividend, distribution, stock split, or stock combination; and OS1 = the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, stock split, or stock combination. If any dividend, distribution, stock split, or stock combination of the type described in this Section 2.8(d)(i) is declared or announced, but not so paid or made, then the Conversion Rate will be readjusted, effective as of the date the Issuer determines not to pay such dividend or distribution or to effect such stock split or stock combination, to the Conversion Rate that would then be in effect had such dividend, distribution, stock split, or stock combination not been declared or announced. (ii) Rights, Options, and Warrants. If the Issuer distributes, to all or substantially all holders of Common Stock, rights, options, or warrants (other than rights issued or otherwise distributed pursuant to a stockholder rights plan, as to which Section 2.8(d)(iii)(1) and Section 2.8(f) will apply) entitling such holders, for a period of not more than 60 calendar days after the record date of such distribution is announced, to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the Last Reported Sale Prices per share of Common Stock for the ten consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced, then the Conversion Rate will be increased based on the following formula: where: CR0 = the Conversion Rate in effect immediately before the Close of Business on the Record Date for such distribution; CR1 = the Conversion Rate in effect immediately after the Close of Business on such Record Date; YOS XOSCRCR + + ´= 01


 
41 US-DOCS\137446087.12 OS = the number of shares of Common Stock outstanding immediately before the Close of Business on such Record Date; X = the total number of shares of Common Stock issuable pursuant to such rights, options, or warrants; and Y = a number of shares of Common Stock obtained by dividing (x) the aggregate price payable to exercise such rights, options, or warrants by (y) the average of the Last Reported Sale Price per share of Common Stock for the ten consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced. To the extent such rights, options, or warrants are not so distributed, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the increase to the Conversion Rate for such distribution been made on the basis of only the rights, options, or warrants, if any, actually distributed. In addition, to the extent that shares of Common Stock are not delivered after the expiration of such rights, options, or warrants (including as a result of such rights, options, or warrants not being exercised), the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the increase to the Conversion Rate for such distribution been made on the basis of delivery of only the number of shares of Common Stock actually delivered upon exercise of such rights, options, or warrants. For purposes of this Section 2.8(d)(ii), in determining whether any rights, options, or warrants entitle holders of Common Stock to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the Last Reported Sale Price per share of Common Stock for the ten consecutive Trading Days ending on, and including, the Trading Day immediately before the date the distribution of such rights, options, or warrants is announced, and in determining the aggregate price payable to exercise such rights, options, or warrants, there will be taken into account any consideration the Issuer receives for such rights, options, or warrants and any amount payable on exercise thereof, with the value of such consideration, if not cash, to be determined by the Board of Directors. (iii) Spin-Offs and Other Distributed Property. (1) Distributions Other than Spin-Offs. If the Issuer distributes shares of its Capital Stock, evidences of its indebtedness, or other assets or property of the Issuer, or rights, options, or warrants to acquire Capital Stock of the Issuer or other securities, to all or substantially all holders of the Common Stock, excluding: (u) dividends, distributions, rights, options, or warrants for which an adjustment to the Conversion Rate is required pursuant to Section 2.8(d)(i) or 2.8(d)(ii);


 
42 US-DOCS\137446087.12 (v) dividends or distributions paid exclusively in cash for which an adjustment to the Conversion Rate is required pursuant to Section 2.8(d)(iv); (w) rights issued or otherwise distributed pursuant to a stockholder rights plan, except to the extent provided in Section 2.8(f); (x) Spin-Offs for which an adjustment to the Conversion Rate is required pursuant to Section 2.8(d)(iii)(2); (y) a distribution solely pursuant to a tender offer or exchange offer for shares of Common Stock, as to which Section 2.8(d)(v) will apply; and/or (z) a distribution solely pursuant to a Common Stock Change Event, as to which Section 2.10 will apply, then the Conversion Rate will be increased based on the following formula: where: CR0 = the Conversion Rate in effect immediately before the Close of Business on the Record Date for such distribution; CR1 = the Conversion Rate in effect immediately after the Close of Business on such Record Date; SP = the average of the Last Reported Sale Prices per share of Common Stock for the ten consecutive Trading Days ending on, and including, the Trading Day immediately before such Record Date; and FMV = the fair market value (as determined by the Board of Directors), as of such Record Date, of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options, or warrants distributed per share of Common Stock pursuant to such distribution; provided, however, that if FMV is equal to or greater than SP, then, in lieu of the foregoing adjustment to the Conversion Rate, each Purchaser will receive, for each $1,000 principal amount of Notes held by such Purchaser on the record date for such distribution, at the same time and on the same FMVSP SPCRCR - ´= 01


 
43 US-DOCS\137446087.12 terms as holders of Common Stock, the amount and kind of shares of Capital Stock, evidences of indebtedness, assets, property, rights, options, or warrants that such Purchaser would have received if such Purchaser had owned, on such Record Date, a number of shares of Common Stock equal to the Conversion Rate in effect on such record date. To the extent such distribution is not so paid or made, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the distribution, if any, actually made or paid. For purposes of this Section 2.8(d)(iii)(1) (and subject to Section 2.8(f)), rights, options, or warrants distributed by the Issuer to all holders of the Common Stock entitling them to subscribe for or purchase shares of the Issuer’s Capital Stock, including Common Stock (either initially or under certain circumstances), which rights, options, or warrants, until the occurrence of a specified event or events a (“Trigger Event”): (x) are deemed to be transferred with such Common Stock; (y) are not exercisable; and (z) are also issued in respect of future issuances of Common Stock, will be deemed not to have been distributed for purposes of this Section 2.8(d)(iii)(1) (and no adjustment to the Conversion Rate under this Section 2.8(d)(iii)(1) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options, or warrants will be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate will be made pursuant to this Section 2.8(d)(iii)(1). In addition, in the event of any distribution (or deemed distribution) of rights, options, or warrants, or any Trigger Event or other event with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate pursuant to this Section 2.8(d)(iii)(1) was made, (x) in the case of any such rights, options, or warrants that have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (I) the Conversion Rate will be readjusted as if such rights, options, or warrants had not been issued; and (II) the Conversion Rate will then again be readjusted to give effect to such distribution, deemed distribution, or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of Common Stock with respect to such rights, options, or warrants (assuming such holder had retained such rights, options, or warrants), made to all holders of Common Stock as of the date of such redemption or purchase; and (y) in the case of such rights, options, or warrants that have expired or been terminated without exercise by any holders thereof, the Conversion Rate will be readjusted as if such rights, options, and warrants had not been issued.


 
44 US-DOCS\137446087.12 (2) Spin-Offs. If the Issuer distributes or dividends shares of Capital Stock of any class or series, or other Equity Interests, of or relating to an Affiliate, a Subsidiary, or other business unit of the Issuer to all or substantially all holders of the Common Stock (other than solely pursuant to (x) a Common Stock Change Event, as to which Section 2.10 will apply; or (y) a tender offer or exchange offer for shares of Common Stock, as to which Section 2.8(d)(v) will apply), and such Capital Stock or equity interests are listed or quoted (or will be listed or quoted upon the consummation of the transaction) on a U.S. national securities exchange (a “Spin-Off”), then the Conversion Rate will be increased based on the following formula: where: CR0 = the Conversion Rate in effect immediately before the Close of Business on the last Trading Day of the Spin-Off Valuation Period for such Spin-Off; CR1 = the Conversion Rate in effect immediately after the Close of Business on the last Trading Day of the Spin-Off Valuation Period; FMV = the product of (x) the average of the Last Reported Sale Price per share or unit of the Capital Stock or other Equity Interests distributed in such Spin-Off over the ten consecutive Trading Day period (the “Spin-Off Valuation Period”) beginning on, and including, the Record Date for such Spin-Off (such average to be determined as if references to Common Stock in the definitions of Last Reported Sale Price, Trading Day, and Market Disruption Event were instead references to such Capital Stock or other Equity Interests) and (y) the number of shares or units of such Capital Stock or other Equity Interests distributed per share of Common Stock in such Spin-Off; and SP = the average of the Last Reported Sale Price per share of Common Stock for each Trading Day in the Spin-Off Valuation Period. Notwithstanding anything to the contrary in this Section 2.8(d)(iii)(2), if the Conversion Date for a Note occurs during the Spin-Off Valuation Period for such Spin-Off, then, solely for purposes of determining the number of Conversion Shares for such conversion, such Spin-Off Valuation Period SP SPFMVCRCR + ´= 01


 
45 US-DOCS\137446087.12 will be deemed to consist of the Trading Days occurring in the period from, and including, the Ex-Dividend Date for such Spin-Off to, and including, such Conversion Date. To the extent any dividend or distribution of the type set forth in this Section 2.8(d)(iii)(2) is declared but not made or paid, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the dividend or distribution, if any, actually made or paid. (iv) Cash Dividends or Distributions. If any cash dividend or distribution is made to all or substantially all holders of Common Stock, then the Conversion Rate will be increased based on the following formula: where: CR0 = the Conversion Rate in effect immediately before the Close of Business on the Record Date for such dividend or distribution; CR1 = the Conversion Rate in effect immediately after the Close of Business on such Record Date; SP = the Last Reported Sale Price per share of Common Stock on the Trading Day immediately before such Record Date; and D = the cash amount distributed per share of Common Stock in such dividend or distribution; provided, however, that if D is equal to or greater than SP, then, in lieu of the foregoing adjustment to the Conversion Rate, each Purchaser will receive, for each $1,000 principal amount of Notes held by such Purchaser on the Record Date for such dividend or distribution, at the same time and on the same terms as holders of the Common Stock, the amount of cash that such Purchaser would have received if such Purchaser had owned, on such Record Date, a number of shares of Common Stock equal to the Conversion Rate in effect on such Record Date. To the extent such dividend or distribution is declared but not made or paid, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the dividend or distribution, if any, actually made or paid. (v) Tender Offers or Exchange Offers. If the Issuer or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for shares of Common Stock (other than solely pursuant to an odd-lot tender offer pursuant to Rule 13e-4(h)(5) under the Exchange Act), and the value (determined as of the Expiration Time by the Board of Directors) of the cash and other DSP SPCRCR - ´= 01


 
46 US-DOCS\137446087.12 consideration paid per share of Common Stock in such tender or exchange offer exceeds the Last Reported Sale Price per share of Common Stock on the Trading Day immediately after the last date (the “Expiration Date”) on which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended), then the Conversion Rate will be increased based on the following formula: where: CR0 = the Conversion Rate in effect immediately before the Close of Business on the last Trading Day of the Tender/Exchange Offer Valuation Period for such tender or exchange offer; CR1 = the Conversion Rate in effect immediately after the Close of Business on the last Trading Day of the Tender/Exchange Offer Valuation Period; AC = the aggregate value (determined by the Issuer as of the time (the “Expiration Time”) such tender or exchange offer expires) of all cash and other consideration paid for shares of Common Stock purchased or exchanged in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately before the Expiration Time (including all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); OS1 = the number of shares of Common Stock outstanding immediately after the Expiration Time (excluding all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and SP = the average of the Last Reported Sale Price per share of Common Stock over the ten consecutive Trading Day period beginning on, and including, the Trading Day immediately after the Expiration Date (the “Tender/Exchange Offer Valuation Period”); provided, however, that the Conversion Rate will in no event be adjusted down pursuant to this Section 2.8(d)(v), except to the extent provided further below in this paragraph. Notwithstanding anything to the contrary in this Section 2.8(d)(v), if the Conversion Date for a Note occurs during the Tender/Exchange Offer Valuation Period for such tender or exchange offer, then, solely for purposes of determining the Conversion Shares for such conversion, such Tender/Exchange Offer Valuation Period will be deemed to consist of the Trading Days occurring in ( ) 0 1 01 OSSP OSSPACCRCR ´ ´+ ´=


 
47 US-DOCS\137446087.12 the period from, and including, the Trading Day immediately after the Expiration Date to, and including, such Conversion Date. To the extent such tender or exchange offer is announced but not consummated (including as a result of the Issuer or such Subsidiary being precluded from consummating such tender or exchange offer under Applicable Law), or any purchases or exchanges of shares of Common Stock in such tender or exchange offer are rescinded, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the purchases or exchanges of shares of Common Stock, if any, actually made, and not rescinded, in such tender or exchange offer. (vi) Degressive Issuance. If, on or after the Closing Date and on or prior to December 30, 2024, the Issuer or any of its Subsidiaries issues or otherwise sells any shares of Common Stock, or any Equity-Linked Securities, in each case at an Effective Price per share of Common Stock that is less than the Conversion Price in effect (before giving effect to the adjustment required by this Section 2.8(d)(vi)) as of the date of the issuance or sale of such shares or Equity-Linked Securities (such an issuance or sale, a “Degressive Issuance”), then, effective as of the Close of Business on such date, the Conversion Rate will be increased to an amount equal to (x) one thousand dollars ($1,000) divided by (y) the Weighted Average Issuance Price. For these purposes, the “Weighted Average Issuance Price” will be equal to: where: CP = such Conversion Price; OS = the sum of (1) number of shares of Common Stock, (2) the number of shares into which the Notes could be converted if fully converted and (3) the maximum number of shares of Common Stock that could become issuable upon the exercise or conversion of all other Equity- Linked Securities, in each case outstanding immediately before such Degressive Issuance; EP = the Effective Price per share of Common Stock in such Degressive Issuance; and X = the sum, without duplication, of (x) the total number of shares of Common Stock issued or sold in such Degressive Issuance; and (y) the maximum number of shares of Common Stock underlying such Equity-Linked Securities issued or sold in such Degressive Issuance. provided, however, that (1) the Conversion Rate will not be adjusted pursuant to this Section 2.8(d)(vi) solely as a result of an Exempt ( ) ( ) XOS XEPOSCP + ´+´


 
48 US-DOCS\137446087.12 Issuance or as a result of any transaction in respect of which an adjustment is made pursuant to Section 2.8(d)(i), (ii), (iii), (iv) and/or (v); (2) the issuance of shares of Common Stock pursuant to any such Equity-Linked Securities will not constitute an additional issuance or sale of shares of Common Stock for purposes of this Section 2.8(d)(vi) (it being understood, for the avoidance of doubt, that the issuance or sale of such Equity-Linked Securities, or any re- pricing or amendment thereof, will be subject to this Section 2.8(d)(vi)); and (3) in no event will the Conversion Rate be decreased pursuant to this Section 2.8(d)(vi). For purposes of this Section 2.8(d)(vi), any re-pricing or amendment of any Equity- Linked Securities (including, for the avoidance of doubt, any Equity-Linked Securities existing as of the Closing Date) will be deemed to be the issuance of additional Equity-Linked Securities, without affecting any prior adjustments theretofore made to the Conversion Rate. The Issuer will not effect any Degressive Issuance that would result in an adjustment to the Conversion Rate pursuant to this Section 2.8(d)(vi) that requires the approval of the Issuer’s stockholders pursuant to the listing standards of The NYSE American, unless the Issuer has obtained such stockholder approval before such Degressive Issuance. (vii) Make-Whole Fundamental Change. (1) If a Make-Whole Fundamental Change occurs and the Conversion Date for the conversion of a Note occurs during the related Make- Whole Fundamental Change Conversion Period, then, subject to this Section 2.8, the Conversion Rate applicable to such conversion will be increased by a number of shares (the “Additional Shares”) set forth in the table below corresponding (after interpolation as provided in, and subject to, the provisions below) to the Make-Whole Fundamental Change Effective Date and the Stock Price of such Make-Whole Fundamental Change: Make-Whole Fundamental Change Effective Date Stock Price $0.2272 $0.2300 $0.2400 $0.2500 $0.2600 $0.2700 $0.2800 $0.2900 $0.3000 $0.3200 $0.3500 $0.4000 $0.4500 $0.5000 December 30, 2022 ................. 706.0690 710.8696 635.7083 568.8400 509.1923 455.8889 408.1429 365.2759 326.7333 260.6875 183.6857 96.7750 43.7556 13.0000 December 30, 2023 ................. 706.0690 710.8696 630.5000 558.2000 494.1154 437.2963 386.7857 341.8621 301.9000 234.4688 158.2286 76.6250 30.6889 7.0000 December 30, 2024 ................. 706.0690 710.8696 625.0417 541.1200 465.8846 398.3333 337.6429 283.0690 234.1000 151.2500 60.7429 0.0000 0.0000 0.0000 December 30, 2025 ................. 706.0690 710.8696 625.0417 541.1200 465.8846 398.3333 337.6429 283.0690 234.1000 151.2500 60.7429 0.0000 0.0000 0.0000 December 30, 2026 ................. 706.0690 710.8696 625.0417 535.4000 452.2308 379.8519 316.6786 261.5517 213.3667 134.7813 53.0571 0.0000 0.0000 0.0000 December 30, 2027 ................. 706.0690 680.0000 498.8333 332.1600 178.3077 35.8519 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 If such Make-Whole Fundamental Change Effective Date or Stock Price is not set forth in the table above, then:


 
49 US-DOCS\137446087.12 (i) if such Stock Price is between two Stock Prices in the table above or the Make-Whole Fundamental Change Effective Date is between two dates in the table above, then the number of Additional Shares will be determined by straight-line interpolation between the numbers of Additional Shares set forth for the higher and lower Stock Prices in the table above or the earlier and later dates in the table above, based on a 365- or 366-day year, as applicable; and (ii) if the Stock Price is greater than $0.5000 (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above are adjusted pursuant to Section 2.8(vii)(2)), or less than $0.2272 (subject to adjustment in the same manner), per share, then no Additional Shares will be added to the Conversion Rate. Notwithstanding anything to the contrary in this Agreement or the Notes, in no event will the Conversion Rate be increased to an amount that exceeds 4,184.2979 shares of Common Stock per $1,000 principal amount of Notes, which amount is subject to adjustment in the same manner as, and at the same time and for the same events for which, the Conversion Rate is required to be adjusted pursuant to Section 2.8(d). (2) The Stock Prices in the first row (i.e., the column headers) of the table set forth above will be adjusted in the same manner as, and at the same time and for the same events for which, the Conversion Price is adjusted as a result of the operation of Section 2.8(d). The numbers of Additional Shares in the table set forth above will be adjusted in the same manner as, and at the same time and for the same events for which, the Conversion Rate is adjusted pursuant to Section 2.8(d). (3) If a Make-Whole Fundamental Change occurs, then, promptly and in no event later than the Business Day immediately after the Make- Whole Fundamental Change Effective Date of such Make-Whole Fundamental Change, the Issuer will notify the Purchasers of the occurrence of such Make- Whole Fundamental Change and of such Make-Whole Fundamental Change Effective Date, briefly stating the circumstances under which the Conversion Rate will be increased pursuant to this Section 2.8 in connection with such Make-Whole Fundamental Change (which, for the avoidance of doubt, in the case of a Make- Whole Fundamental Change pursuant to clause (b) of the definition thereof, may be included in the related Redemption Notice). (4) If a Conversion Date occurs during two or more Make- Whole Fundamental Change Periods, a Purchaser converting its Notes will be entitled to a single increase to the Conversion Rate with respect to the first to occur of the applicable Make-Whole Fundamental Changes, and the later Make-Whole


 
50 US-DOCS\137446087.12 Fundamental Change(s) will be deemed to not have occurred for purposes of this Section 2.8. (5) For the avoidance of doubt, the Transactions shall not be deemed to result in the occurrence of a Make-Whole Fundamental Change. (e) No Adjustments in Certain Cases. (i) Where Holders Participate in the Transaction or Event Without Conversion. Notwithstanding anything to the contrary in this Section 2.8(e), the Issuer will not be obligated to adjust the Conversion Rate on account of a transaction or other event otherwise requiring an adjustment pursuant to this Section 2.8(e) (other than a stock split or combination of the type set forth in Section 2.8(d)(i) or a tender or exchange offer of the type set forth in Section 2.8(d)(v) or a Degressive Issuance) if each Purchaser participates, at the same time and on the same terms as holders of Common Stock, and solely by virtue of being a Purchaser of Notes, in such transaction or event without having to convert such Purchaser’s Notes and as if such Purchaser held a number of shares of Common Stock equal to the product of (i) the Conversion Rate in effect on the related record date and (ii) the aggregate principal amount (expressed in thousands) of Notes held by such Purchaser on such date. (ii) Certain Events. The Issuer will not be required to adjust the Conversion Rate except as provided in this Section 2.8. Without limiting the foregoing, the Issuer will not be obligated to adjust the Conversion Rate on account of: (1) the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Issuer’s securities and the investment of additional optional amounts in shares of Common Stock under any such plan; (2) the issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee, director, or consultant benefit plan or program of, or assumed by, the Issuer or any of its Subsidiaries; (3) the issuance of any shares of Common Stock pursuant to any option, warrant, right, or convertible or exchangeable security of the Issuer outstanding as of the Closing Date; (4) solely a change in the par value of the Common Stock; or (5) accrued and unpaid interest on the Notes. (iii) De Minimis Changes. If an adjustment to the Conversion Rate otherwise required by this Section 2.8 would result in a change of less than 1% to the Conversion Rate, then, notwithstanding anything to the contrary herein, the


 
51 US-DOCS\137446087.12 Issuer may, at its election, defer such adjustment, except that all such deferred adjustments must be given effect immediately upon the earliest of the following: (i) when all such deferred adjustments would result in an aggregate change of at least 1% to the Conversion Rate; or (ii) the Conversion Date of any Note. (f) Equitable Adjustments to Prices. Whenever any provision of this Agreement requires the Issuer to calculate the average of the Last Reported Sale Price, or any function thereof, over a period of multiple days (including to calculate an adjustment to the Conversion Rate), the Issuer will make proportionate adjustments, if any, to such calculations to account for any adjustment to the Conversion Rate pursuant to Section 2.8(d)(i) that becomes effective, or any event requiring such an adjustment to the Conversion Rate where the Record Date or effective date, as applicable, of such event occurs, at any time during such period. (g) Calculation of Number of Outstanding Shares of Common Stock. For purposes of Section 2.8(d), the number of shares of Common Stock outstanding at any time will (i) include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock and (ii) exclude shares of Common Stock held in the Issuer’s treasury (unless the Issuer pays any dividend or makes any distribution on shares of Common Stock held in its treasury). (h) Calculations. All calculations with respect to the Conversion Rate and adjustments thereto will be made to the nearest 1/10,000th of a share of Common Stock (with 5/100,000ths rounded upward). (i) Notice of Conversion Rate Adjustments. Upon the effectiveness of any adjustment to the Conversion Rate pursuant to Section 2.8(d), the Issuer will promptly send notice to the Purchasers containing (i) a brief description of the transaction or other event on account of which such adjustment was made; (ii) the Conversion Rate in effect immediately after such adjustment; and (iii) the effective time of such adjustment. (j) Voluntary Adjustments. To the extent permitted by law and applicable stock exchange rules, the Board of Directors, from time to time, may (but is not required to) increase the Conversion Rate by any amount if: (i) the Issuer determines that such increase is either (x) in the best interest of the Issuer or (y) advisable to avoid or diminish any income tax imposed on holders of Common Stock or rights to purchase Common Stock as a result of any dividend or distribution of shares (or rights to acquire shares) of Common Stock or any similar event; (ii) such increase is in effect for a period of at least 20 Business Days; and (iii) such increase is irrevocable during such period. (k) Notice of Voluntary Increase. If the Board of Directors determines to increase the Conversion Rate pursuant to Section 2.8(j), then, no later than the first Business Day of the related twenty (20) Business Day period referred to in Section 2.8(j), the Issuer will send notice to each Purchaser of such increase, the amount thereof and the period during which such increase will be in effect.


 
52 US-DOCS\137446087.12 2.9 Limitation on Conversion. In order to comply with NYSE rules that limit the number of shares of Common Stock the Issuer may deliver upon conversion of the Notes unless the Issuer first obtains the approval of its stockholders in accordance with the rules of the NYSE (the “Requisite Stockholder Approval”), in no event will the number of shares of Common Stock issuable upon conversion of the Notes (together with any shares of Common Stock issued pursuant to the Share Purchase Agreement) exceed 53,349,861, subject to adjustment in the same manner as, and at the same time and for the same events for which, the Conversion Rate is required to be adjusted pursuant to Section 2.8(d)(i) through (vi), if the Issuer has not obtained the Requisite Stockholder Approval. This Section 2.9 shall cease to apply from and after the receipt by the Issuer of the Requisite Stockholder Approval. The Issuer undertakes to seek the Requisite Stockholder Approval as soon as reasonably practicable and in any event no later than its next annual general meeting. 2.10 Effect of Common Stock Change Event. If there occurs any: (a) recapitalization, reclassification, or change of the Common Stock (other than (x) changes solely resulting from a subdivision or combination of the Common Stock, (y) a change only in par value or from par value to no par value or no par value to par value, and (z) stock splits and stock combinations that do not involve the issuance of any other series or class of securities); (b) consolidation, merger, combination, or binding or statutory share exchange involving the Issuer; (c) sale, lease, or other transfer of all or substantially all of the assets of the Issuer and its Subsidiaries, taken as a whole, to any Person; or (d) other similar event; and, as a result of which, the Common Stock is converted into, or is exchanged for, or represents solely the right to receive, other securities, cash, or other property, or any combination of the foregoing (such an event, a “Common Stock Change Event,” and such other securities, cash, or property, the “Reference Property,” and the amount and kind of Reference Property that a holder of one share of Common Stock would be entitled to receive on account of such Common Stock Change Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property), a “Reference Property Unit”), then, notwithstanding anything to the contrary in this Agreement or the Notes: (1) from and after the effective time of such Common Stock Change Event: (I) the Conversion Shares due upon conversion of any Note will be determined in the same manner as if each reference to any number of shares of Common Stock in this Section 2 (or in any related definitions) were instead a reference to the same number of Reference Property Units; and (II) for purposes of the definition of “Record Date,” the term “Common Stock” will be deemed to refer to any class of securities forming part of such Reference Property; and (2) for these purposes, the Last Reported Sale Price of any Reference Property Unit or portion thereof that does not consist of a class of securities, will be the fair value


 
53 US-DOCS\137446087.12 of such Reference Property Unit or portion thereof, as applicable, determined in good faith by the Issuer (or, in the case of cash denominated in U.S. dollars, the face amount thereof). If the Reference Property consists of more than a single type of consideration to be determined based in part upon any form of stockholder election, then the composition of the Reference Property Unit will be deemed to be the weighted average of the types and amounts of consideration actually received, per share of Common Stock, by the holders of Common Stock. The Issuer will notify the Purchasers of such weighted average as soon as practicable after such determination is made. At or before the effective time of such Common Stock Change Event, the Issuer and the resulting, surviving, or transferee Person (if not the Issuer) of such Common Stock Change Event (the “Successor Person”) will execute and deliver to the Purchasers such supplemental instruments, if any, as the Issuer reasonably determines are necessary or desirable to: (x) provide for subsequent conversions of Notes in the manner set forth in this Section 2.10; (y) provide for subsequent adjustments to the Conversion Rate pursuant to Section 2.8(d) in a manner consistent with this Section 2.10; and (z) contain such other provisions, if any, that the Issuer reasonably determines are appropriate to preserve the economic interests of the Purchasers and to give effect to the provisions of this Section 2.10. If the Reference Property includes shares of stock or other securities or assets of a Person other than the Successor Person, then such other Person will also execute such supplemental instrument(s) and such supplemental instrument(s) will contain such additional provisions, if any, that the Issuer reasonably determines are appropriate to preserve the economic interests of Purchasers. 3. CONDITIONS OF NOTES 3.1 Conditions Precedent to Closing. The effectiveness of this Agreement and Closing are subject to the condition precedent that each Purchaser shall have received, in form and substance satisfactory to each Purchaser, such documents, and completion of such other matters, as each Purchaser may reasonably deem necessary or appropriate, including, without limitation: (a) this Agreement, duly executed by the Issuer, as applicable; (b) delivery of the Notes, duly executed by Issuer; (c) to the extent requested by the Purchasers or Collateral Agent, a properly completed and duly executed IRS Form W-9 (or other applicable tax form) from Issuer and all other documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations; (d) the Note Documents (other than this Agreement and the Shares), each duly executed by the Issuer and each Guarantor, as applicable; (e) all certificates representing the Equity Interests of Bird Rides held by the Issuer comprising the Issuer Pledged Collateral as of the Closing Date, together with stock transfer forms or powers of attorney executed in blank, shall have been delivered to the Collateral Agent; (f) the Operating Documents and good standing certificates of the Issuer and each Guarantor certified by the Secretary of State (or equivalent agency) of the Issuer’s


 
54 US-DOCS\137446087.12 and such Guarantor’s jurisdiction of organization or formation, each as of a date no earlier than thirty (30) days prior to the Closing Date; (g) a certificate of Issuer executed by the Secretary of Issuer and each Guarantor with appropriate insertions and attachments, including with respect to (i) the Operating Documents of Issuer or such Guarantor (certified by the applicable Secretary of State), (ii) the resolutions adopted by the Board of Directors or the board of directors (or the functional equivalent thereof) of such Guarantor for the purpose of approving the transactions contemplated by the Note Documents and (iii) resolutions adopted by stockholders of the Issuer comprising the Requisite Stockholder Approval for the purpose of approving the transactions contemplated by this Agreement; (h) a legal opinion of counsel to the Issuer as to U.S. law and applicable state law and a legal opinion of counsel to the Issuer as to the laws of certain provinces of Canada, each dated as of the Closing Date; (i) a duly executed cross receipt signed by the Issuer and the Purchasers, acknowledging that it has received the cash and/or securities it is to receive on the Closing Date, as applicable; (j) the representations and warranties in Section 5 hereof shall be true, accurate and complete in all material respects on the Closing Date; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date; (k) since September 30, 2022, no event, circumstance or change shall have occurred that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect; (l) no Event of Default or an event that with the passage of time could result in an Event of Default shall exist; (m) the Purchasers shall have received, at least three (3) Business Days prior to the Closing Date, the latest financial model, which shall be satisfactory to the Purchasers in their sole discretion (the “Model”); (n) payment of the fees, Purchasers’ Expenses, Collateral Agent Expenses and Collateral Agent Fees then due as specified in Section 2.4 hereof; (o) cause the Purchasers and Collateral Agent to receive (i) evidence that all financing statements in the jurisdiction of organization of each of Issuer and each Guarantor that the Purchasers or Collateral Agent may deem reasonably necessary and (ii) each other document required by any Note Document or under any Applicable Law to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a perfected Lien on the Collateral required to be


 
55 US-DOCS\137446087.12 delivered pursuant to such Note Document, in proper form for filing, registration or recordation; (p) substantially simultaneously with the effectiveness of this Agreement, the Issuer shall have executed the Vehicle Financing Amendment; (q) substantially simultaneously with the effectiveness of this Agreement, the Issuer shall have executed the Share Purchase Agreement and the Voting Agreement; and (r) the letter of agreement dated as of December 19, 2022 by and among MidCap Financial Trust, certain lenders of Bird US Opco LLC and Bird Canada shall have been terminated. The Issuer and each Purchaser acknowledge, for purposes of the opinion to be delivered pursuant to Section 3.1(h), counsel to the Issuer will rely upon the accuracy and truthfulness of the representations contained in Sections 5.16, 5.17 and 6.7 through 6.14 and hereby consent to such reliance. 3.2 Conditions Precedent to Acquisition Closing. The Acquisition Closing is subject only to the condition precedent that the purchase and sale of Bird Canada Inc. pursuant to the Share Purchase Agreement shall have been consummated in accordance with the terms thereof. 3.3 Covenant to Deliver. The Issuer agrees to deliver to the Purchasers each item required to be delivered to the Purchasers under this Agreement as a condition precedent to the purchase of Notes. The Issuer expressly agrees that any purchase of Notes made prior to the receipt by any Purchaser of any such item shall not constitute a waiver by any Purchaser of the Issuer’s obligation to deliver such item, and any such Note in the absence of a required item shall be made in each Purchaser’s sole discretion. 3.4 Post-Closing Obligations. Notwithstanding any provision herein or in any other Note Document to the contrary, to the extent not actually delivered on or prior to the Closing Date, the Issuer shall, and shall cause each applicable Subsidiary to: (a) within 20 days following the Closing Date (or such later date as the Required Purchasers may agree), the Issuer shall produce and deliver to the Collateral Agent stock certificates of Bird Rides representing Issuer Pledged Collateral . (b) within 30 days following the Closing Date (or such later date as the Required Purchasers may agree), the Collateral Agent shall be named as lender loss payee and/or additional insured with respect to any insurance providing coverage in respect of any Collateral in accordance with Section 7.4; and (c) within 45 days following the Closing Date (or such later date as the Required Purchasers may agree), the Issuer shall deliver documentation reasonably satisfactory to the Required Purchasers providing for a pledge over the equity of Bird Rides Europe B.V. by Bird Rides International Holding, Inc., together with any supporting documentation that the Required Purchasers may reasonably request.


 
56 US-DOCS\137446087.12 4. CREATION OF SECURITY INTEREST 4.1 Grant of Security Interest. The Issuer hereby grants the Collateral Agent, for the ratable benefit of the Secured Parties, to secure the payment and performance in full of all of the Obligations, a continuing first-priority security interest in, and pledges to the Collateral Agent, for the ratable benefit of the Secured Parties, the Issuer Pledged Collateral. The Collateral Agent’s Lien on the Issuer Pledged Collateral shall continue until the Obligations (other than inchoate indemnity obligations) are repaid or converted in full. 4.2 Representations, Warranties and Covenants. The Issuer represents, warrants and covenants to and with the Collateral Agent, for the benefit of the Secured Parties, that: (a) Exhibit A hereto includes a true and complete list of all the Issuer Pledged Collateral and the percentage of the issued and outstanding units of each class of the Equity Interests of the issuer thereof represented by the Issuer Pledged Collateral owned by the Issuer; (b) (i) the Issuer Pledged Collateral has been duly and validly authorized and issued by the issuer thereof and (ii) the Issuer Pledged Collateral (if applicable) is fully paid and nonassessable; (c) except for the security interests granted hereunder and under any other Note Documents, the Issuer (i) is and will continue to be the direct owner, beneficially and of record, of the Issuer Pledged Collateral, (ii) holds the same free and clear of all Liens, other than Permitted Liens, (iii) will make no further assignment, pledge, hypothecation or transfer of, or create or permit to exist any security interest in or other Lien on, the Issuer Pledged Collateral, other than Permitted Liens, and (iv) will use commercially reasonable efforts to defend its title or interest thereto or therein against any and all Liens (other than Permitted Liens), however arising, of all Persons whomsoever; (d) except for restrictions and limitations imposed or permitted by the Note Documents, contracts and agreements permitted by the Note Purchase Agreement, or securities laws generally, the Issuer Pledged Collateral is and will continue to be freely transferable and assignable, and none of the Issuer Pledged Collateral is or will be subject to any option, right of first refusal, shareholders agreement or organizational document provisions of any nature that would prohibit, impair, delay or otherwise affect the pledge of such Issuer Pledged Collateral hereunder, the sale or disposition thereof pursuant hereto or the exercise by the Collateral Agent of rights and remedies hereunder; (e) the Issuer has the organizational power and authority to pledge the Issuer Pledged Collateral pledged by it hereunder in the manner hereby done or contemplated; (f) by virtue of the execution and delivery by the Issuer of this Agreement, when any Issuer Pledged Securities are delivered to the Collateral Agent in accordance with this Agreement, the Collateral Agent will obtain a legal, valid and perfected lien upon and security interest in such Issuer Pledged Securities, free of any adverse claims (except Permitted Liens), under the UCC to the extent such lien and security interest may be created


 
57 US-DOCS\137446087.12 and perfected under the UCC, as security for the payment and performance of the Obligations; and (g) subject to the terms of this Agreement and to the extent permitted by applicable law, the Issuer hereby agrees that upon the occurrence and during the continuance of an Event of Default, it will comply with the instructions of the Collateral Agent with respect to the Equity Interests that constitute Issuer Pledged Collateral hereunder that are not certificated without further consent by the applicable owner or holder of such Equity Interests. 4.3 Registration in Nominee Name. If an Event of Default shall have occurred and is continuing, the Collateral Agent (at the direction of the Required Purchasers), on behalf of the Secured Parties, shall have the right (in its sole and absolute discretion) to hold and have the Issuer Pledged Securities registered in the name of the Collateral Agent or in its own name as pledgee or in the name of its nominee (as pledgee or as sub-agent), and the Issuer will promptly give to the Collateral Agent copies of any notices or other written communications received by it with respect to Issuer Pledged Securities registered in the name of the Issuer. Upon the occurrence and during the continuance of an Event of Default notice to the Issuer, the Collateral Agent shall at all times have the right to exchange the certificates representing Issuer Pledged Securities for certificates of smaller or larger denominations for any reasonable purpose consistent with this Agreement. 4.4 Voting Rights; Dividends and Interest. (a) Unless and until an Event of Default shall have occurred: (i) the Issuer shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Issuer Pledged Securities or any part thereof for any purpose consistent with the terms of this Agreement and the other Note Documents; (ii) the Collateral Agent shall promptly execute and deliver to the Issuer, or cause to be promptly executed and delivered to the Issuer, all such proxies, powers of attorney and other instruments as the Issuer may reasonably request for the purpose of enabling the Issuer to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to clause (a)(i) of this Section 4.4; and (iii) the Issuer shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Issuer Pledged Securities to the extent and only to the extent that such dividends, interest, principal and other distributions are not prohibited by, and are otherwise paid or distributed in accordance with, the terms and conditions of this Agreement and the other Note Documents and Applicable Laws; provided that any non-cash dividends, interest, principal or other distributions that would constitute Issuer Pledged Collateral, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests in the issuer of any Issuer Pledged Securities or received in exchange for Issuer Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation,


 
58 US-DOCS\137446087.12 acquisition or other exchange of assets to which such issuer may be a party or otherwise, shall be and become part of the Issuer Pledged Collateral and, if received by the Issuer, shall be held for the benefit of the Collateral Agent and the other Secured Parties. 4.5 Other Collateral. The Notes and related Guarantees will be secured from time to time by other collateral, pledged by the Guarantors under the other Note Documents. 4.6 Release of Issuer Pledged Collateral. Upon payment or conversion in full of the Obligations (other than inchoate indemnity obligations), the Collateral Agent’s Lien on all the Issuer Pledged Collateral shall terminate and be released automatically without further action of any Person, and all rights therein shall revert to the Issuer. Upon any sale or other transfer of any Issuer Pledged Collateral in a transaction permitted under and in accordance with the terms of this Agreement, or upon the effectiveness of any written consent to the release of the Liens granted hereby on any Issuer Pledged Collateral, the Collateral Agent’s Lien on such Issuer Pledged Collateral shall be automatically released, and all rights therein shall revert to the Issuer. In connection with any of the foregoing terminations or releases, at the request of the Issuer and at the sole cost and expense of the Issuer, the Collateral Agent shall promptly execute and deliver to, and authorize the filing by, the Issuer of all financing statement amendments or termination statements and similar documents that the Issuer shall reasonably request to evidence such termination or release, and the Collateral Agent shall promptly deliver to the Issuer all applicable Issuer Pledged Collateral in its possession. 5. REPRESENTATIONS AND WARRANTIES OF THE ISSUER The Issuer represent and warrant to the Purchasers and the Collateral Agent that, as of the date hereof: 5.1 Organization and Good Standing. The Issuer and each of its Subsidiaries is an entity duly organized and validly existing and in good standing under the laws of the jurisdiction of its organization and has full power and authority under its organizational documents and under the laws of the jurisdiction of its organization to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted. 5.2 Due Qualification. The Issuer and each of its Subsidiaries is duly qualified to do business, and has obtained all necessary licenses and approvals, in all jurisdictions in which the conduct of its business requires such qualification, licenses, or approvals, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect on the ability of the Issuer or such Subsidiaries to perform its obligations (taken as a whole) under this Agreement or any other Note Document to which it is a party or the validity or enforceability of this Agreement or any other Note Document. 5.3 Power and Authority; Due Authorization. The Issuer (a) has all necessary power and authority to (i) execute and deliver this Agreement and the other Note Documents to which it is a party, (ii) perform its obligations under this Agreement and the other Note Documents to which it is a party, and (iii) grant a security interest in the Collateral to the Collateral Agent on the terms and subject to the conditions herein provided, and (b) has duly authorized by all necessary


 
59 US-DOCS\137446087.12 corporation action such grant and the execution, delivery, and performance of, and the consummation of the transactions provided for in, this Agreement and the other Note Documents to which it is a party. The shares of Common Stock issuable upon conversion of the Notes have been duly and validly authorized and reserved by the Issuer and, when issued upon conversion of the Notes in accordance with this Agreement, will be validly issued, fully paid, and non-assessable, and the issuance of any such shares of Common Stock shall not be subject to any preemptive or similar rights. 5.4 Binding Obligations. This Agreement and each of the other Note Documents to which the Issuer is a party, when executed and delivered by the Issuer and each other party thereto (and, with respect to the Notes, when issued against payment of the Purchase Consideration therefor), will constitute legal, valid, and binding obligations of the Issuer, enforceable against the Issuer in accordance with their respective terms, except (i) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting the enforcement of creditors’ rights generally and (ii) as such enforceability may be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law. 5.5 No Conflict or Violation. The execution, delivery, and performance of, and the consummation of the transactions contemplated by, this Agreement and the other Note Documents to which the Issuer is a party, and the fulfillment of the terms hereof and thereof, will not (a) conflict with, result in any breach of any of the terms or provisions of, or constitute (with or without notice or lapse of time or both) a default under its organizational documents, any Government Approval, or any indenture, sale agreement, credit agreement, loan agreement, security agreement, mortgage, deed of trust, or other agreement or instrument to which the Issuer is a party or by which it or any of its properties is bound, (b) result in the creation or imposition of any Lien upon any of the Collateral pursuant to the terms of any such indenture, sale agreement, credit agreement, loan agreement, security agreement, mortgage, deed of trust, or other agreement or instrument (other than this Agreement and the other Note Documents), or (c) conflict with or violate any Applicable Law, except, in the case of each of the foregoing clauses (a) through (c), to the extent that any such conflict, breach, default, Lien, or violation, as applicable, would not reasonably be expected to have a Material Adverse Effect. 5.6 Litigation and Other Proceedings. (a) There is no action, suit, proceeding, or investigation pending or, to the knowledge of the Issuer, threatened in writing, against the Issuer or any of its Subsidiaries before any Governmental Authority and (b) the Issuer is not subject to any order, judgment, decree, injunction, stipulation, or consent order of or with any Governmental Authority that, in the case of either of the foregoing clauses (a) and (b), (i) asserts the invalidity or unenforceability of this Agreement or any other Note Document, (ii) seeks to prevent the grant of a security interest in any of the Collateral by the Issuer to the Collateral Agent or the consummation of any of the transactions contemplated by this Agreement or any other Note Document, (iii) seeks any determination or ruling that could materially and adversely affect the performance by the Issuer of its obligations under this Agreement or any other Note Document, or (iv) individually or in the aggregate for all such actions, suits, proceedings, and investigations would reasonably be expected to have a Material Adverse Effect.


 
60 US-DOCS\137446087.12 5.7 Government Approvals. Except where the failure to obtain or make such authorization, consent, order, approval, or action would not reasonably be expected to have a Material Adverse Effect, all authorizations, consents, orders, and approvals of, or other actions by, any Governmental Authority that are required to be obtained by the Issuer in connection with the grant of a security interest to the Collateral Agent hereunder or the due execution, delivery, and performance by the Issuer of this Agreement or any other Note Document to which it is a party and the consummation by the Issuer of the transactions contemplated by this Agreement and the other Note Documents to which it is a party have been obtained or made and are in full force and effect, except for such authorizations, consents, orders, approvals, or actions (a) as have been obtained or made, (b) as may be required under applicable state securities laws in connection with the issuance and sale of the Notes, or (c) to perfect the Collateral Agent’s security interests granted hereby or any financing statements related thereto. 5.8 Solvency After giving effect to the transactions contemplated by this Agreement and the other Note Documents, the Issuer and its Subsidiaries, on a consolidated basis, are Solvent. 5.9 Offices; Legal Name. The Issuer’s sole jurisdiction of organization is the State of Delaware and such jurisdiction has not changed within four months prior to the date of this Agreement. The chief executive office of the Issuer is 392 NE 191st Street, #20388, Miami, Florida. The legal name of the Issuer is Bird Global, Inc. 5.10 Investment Company Act. The Issuer is not, and is not controlled by, an “investment company” registered or required to be registered under the U.S. Investment Company Act of 1940, as amended. 5.11 Accuracy of Information. All written information (other than any projections, forward-looking information, and information of a general economic nature or general industry nature) furnished to the Purchasers by or on behalf of the Issuer pursuant to any provision of this Agreement or any other Note Document, or in connection with or pursuant to any amendment or modification of, or waiver under this Agreement or any other Note Document, is at the time the same are so furnished (or as of any earlier date or later date specified therein),was, at the time the same was so furnished (or as of any earlier date specified therein), when taken as a whole, true and correct in all material respects on the date the same was furnished to the Purchasers, and does not contain any material misstatement of fact or omit to state a material fact necessary to make the statements contained therein not misleading in light of the circumstances in which such statements were made. 5.12 Anti-Money Laundering/International Trade Law Compliance. Neither the Issuer nor, to the knowledge of the Issuer, any of its Affiliates, (a) is in violation of any Anti- Terrorism Law, (b) engages in or conspires to engage in any transaction that violates or attempts to violate any of the prohibitions set forth in any Anti-Terrorism Law, (c) is a Sanctioned Person, or is controlled by a Sanctioned Person, (d) is acting for or on behalf of a Sanctioned Person, (e) is associated with a Sanctioned Person, or (vi) is providing material, financial, or technical support or other services to or in support of acts of terrorism of a Sanctioned Person. Neither the Issuer nor, to the knowledge of the Issuer, any of its Affiliates or agents acting or benefiting in any capacity in connection with the transactions contemplated by this Agreement, (i) conducts any business or engages in making or receiving any contribution of funds, goods, or services to or for


 
61 US-DOCS\137446087.12 the benefit of any Sanctioned Person or (ii) deals in, or otherwise engages in any transaction relating to, any property or interest in property blocked pursuant to Executive Order No. 13224, any similar executive order, or other Anti-Terrorism Law. 5.13 Perfection Representations. (a) This Agreement creates a valid and continuing security interest in the Issuer’s right, title, and interest in, to, and under the Issuer Pledged Collateral which, (i) upon the filing of any required financing statements, will constitute a perfected security interest and (ii) will be free of all Liens, other than Permitted Liens. (b) The Issuer owns and has good and marketable title to the Issuer Pledged Collateral free and clear of any Lien, other than Permitted Liens. (c) Other than the security interest granted to the Collateral Agent pursuant to this Agreement, the Issuer has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Issuer Pledged Collateral except as permitted by this Agreement and the other Note Documents. The Issuer is not aware of any judgment lien, ERISA lien, or tax lien filings against the Issuer that are not permitted by this Agreement and the other Note Documents. 5.14 Compliance with Applicable Laws. The Issuer has complied with all Applicable Laws to which it may be subject, except where any such failure to comply with Applicable Laws would not reasonably be expected to have a Material Adverse Effect. 5.15 Taxes. The Issuer has (a) timely filed all material tax returns (federal, state, and local) required to be filed by it, (b) paid, or caused to be paid, all material taxes, assessments, and other governmental charges, if any, other than taxes, assessments, and other governmental charges being contested in good faith, and (c) paid all fees and expenses required to be paid by it in connection with the maintenance of its existence, and its qualification as a foreign corporation authorized to do business in each state in which it is required to so qualify, except with respect to this clause (c), where any such failure to pay such fees and expenses would not reasonably be expected to have a Material Adverse Effect. 5.16 No Broker’s Fees. Except as set forth in or contemplated by the Share Purchase Agreement, the Issuer is not a party to any contract, agreement, or understanding with any Person that would give rise to a valid claim against them or the Purchasers for a brokerage commission, finder’s fee, or like payment in connection with the Note Documents and the transactions contemplated thereby. 5.17 No General Solicitation. Neither the Issuer nor any of its affiliates (as defined in Rule 501(b) of Regulation D promulgated under the Securities Act), or any Person acting on its or their behalf, has engaged directly or indirectly in any form of general solicitation or general advertising (within the meaning of Rule 502(c) of Regulation D) in connection with the offering, issuance, and sale of the Notes in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act.


 
62 US-DOCS\137446087.12 6. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS Each Purchaser, severally and not jointly, represents and warrants to the Issuer as of the Closing Date and as of the date such Person becomes a Purchaser, as follows: 6.1 Organization and Good Standing. Such Purchaser is an entity duly organized and validly existing and in good standing under the laws of the jurisdiction of its organization and has full power and authority under its organizational documents and under the laws of the jurisdiction of its organization to enter into this Agreement and perform its obligations hereunder. 6.2 Power and Authority; Due Authorization. Such Purchaser (a) has all necessary power and authority to (i) execute and deliver this Agreement and the other Note Documents to which it is a party and (ii) perform its obligations under this Agreement and the other Note Documents to which it is a party and (b) has duly authorized by all necessary organizational action the execution, delivery, and performance of, and the consummation of the transactions provided for in, this Agreement and the other Note Documents to which it is a party. 6.3 Binding Obligations. This Agreement and each of the other Note Documents to which such Purchaser is a party, when executed and delivered by such Purchaser and each other party thereto (and, with respect to the Notes, when issued against payment of the Purchase Consideration therefor), will constitute legal, valid, and binding obligations of such Purchaser, enforceable against such Purchaser in accordance with their respective terms, except (i) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting the enforcement of creditors’ rights generally and (ii) as such enforceability may be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law. 6.4 No Conflict or Violation. The execution, delivery, and performance of, and the consummation of the transactions contemplated by, this Agreement and the other Note Documents to which such Purchaser is a party will not (a) conflict with, result in any breach of any of the terms or provisions of, or constitute (with or without notice or lapse of time or both) a default under its organizational documents or any indenture, sale agreement, credit agreement, loan agreement, security agreement, mortgage, deed of trust, or other agreement or instrument to which such Purchaser is a party or by which it or any of its properties is bound, (b) result in the creation or imposition of any Lien upon any of the Collateral pursuant to the terms of any such indenture, sale agreement, credit agreement, loan agreement, security agreement, mortgage, deed of trust, or other agreement or instrument (other than this Agreement and the other Note Documents), or (c) conflict with or violate any Applicable Law, except, in the case of each of the foregoing clauses (a) through (c), to the extent that any such conflict, breach, default, Lien, or violation, as applicable, would not reasonably be expected to have a material adverse effect on the ability of such Purchaser to perform its obligations (taken as a whole) under this Agreement or any other Note Document to which it is a party or the validity or enforceability of this Agreement or any other Note Document. 6.5 Litigation and Other Proceedings. (a) There is no action, suit, proceeding, or investigation pending or, to the knowledge of such Purchaser, threatened in writing, against such Purchaser before any Governmental Authority and (b) such Purchaser is not subject to any order, judgment, decree, injunction, stipulation, or consent order of or with any Governmental Authority


 
63 US-DOCS\137446087.12 that, in the case of either of the foregoing clauses (a) and (b), (i) asserts the invalidity or unenforceability of this Agreement or any other Note Document, (ii) seeks to prevent the consummation of any of the transactions contemplated by this Agreement or any other Note Document, (iii) seeks any determination or ruling that could materially and adversely affect the performance by such Purchaser of its obligations under this Agreement or any other Note Document, or (iv) individually or in the aggregate for all such actions, suits, proceedings, and investigations would reasonably be expected to have a material adverse effect on the ability of such Purchaser to perform its obligations (taken as a whole) under this Agreement or any other Note Document to which it is a party or the validity or enforceability of this Agreement or any other Note Document. 6.6 Government Approvals. Except where the failure to obtain or make such authorization, consent, order, approval, or action would not reasonably be expected to have a material adverse effect on the ability of such Purchaser to perform its obligations (taken as a whole) under this Agreement or any other Note Document to which it is a party or the validity or enforceability of this Agreement or any other Note Document, all authorizations, consents, orders, and approvals of, or other actions by, any Governmental Authority that are required to be obtained by such Purchaser in connection with the due execution, delivery, and performance by such Purchaser of this Agreement or any other Note Document to which it is a party and the consummation by such Purchaser of the transactions contemplated by this Agreement and the other Note Documents to which it is a party have been obtained or made and are in full force and effect, except for such authorizations, consents, orders, approvals, or actions (a) as have been obtained or made, (b) as may be required under applicable state securities laws in connection with the issuance and sale of the Notes, or (c) to perfect the Collateral Agent’s security interests granted hereby and any financing statements related thereto. 6.7 Evaluation of Risks. Such Purchaser has such knowledge and experience in financial, tax, and business matters as to be capable of evaluating the merits and risks of, and bearing the economic risks entailed by, an investment in the Notes and the underlying shares of Common Stock and of protecting its interests in connection with the transactions contemplated hereby. Such Purchaser acknowledges and agrees that its investment in the Issuer involves a high degree of risk, and that such Purchaser may lose all or a part of its investment. 6.8 No Legal, Investment, or Tax Advice from the Issuer. Such Purchaser acknowledges that it had the opportunity to review the Note Documents and the transactions contemplated by the Note Documents with its own legal counsel and investment and tax advisors. Such Purchaser is relying solely on such counsel and advisors and not on any statements or representations of the Issuer or any of the Issuer’s representatives or agents for legal, tax, investment or other advice with respect to such Purchaser’s acquisition of the Notes hereunder or any shares of Common Stock issuable upon conversion thereof, the transactions contemplated by this Agreement and the other Note Documents, or the laws of any jurisdiction. 6.9 Investment Purpose. Such Purchaser is acquiring the Notes and the shares of Common Stock issuable upon conversion of the Notes for its own account, for investment purposes, and not with a view towards, or for resale in connection with, the public sale or distribution thereof, in violation of the Securities Act or any applicable state securities laws. Such Purchaser agrees not to sell, hypothecate, or otherwise transfer the Notes or any shares of Common


 
64 US-DOCS\137446087.12 Stock issuable upon conversion of the Notes except pursuant to a registration statement in which the resale of such securities is registered under the Securities Act and in a manner in compliance with all applicable federal and state securities laws, rules, and regulations, or unless, in the opinion of counsel satisfactory to the Issuer, an exemption from such registration is available. Such Purchaser does not presently have any agreement or understanding, directly or indirectly, with any Person to sell or distribute any of the Notes or any shares of Common Stock issuable upon conversion of the Notes. Such Purchaser is acquiring the Notes and the shares of Common Stock issuable upon conversion of the Notes hereunder in the ordinary course of its business. 6.10 Accredited Investor. Such Purchaser is an institutional “accredited investor” as that term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act. 6.11 Reliance on Exemptions. Such Purchaser understands that the Notes and the shares of Common Stock issuable upon conversion of the Notes are being offered and sold to it in reliance on specific exemptions from the registration requirements of U.S. federal and state securities laws and are characterized as “restricted securities” under the U.S. federal securities laws. Such Purchaser is purchasing the Notes as principal for its own account, not for the benefit of any other person, for investment only and not with a view to the resale or distribution of all or any of the Notes or underlying Common Stock. If such Purchaser is resident in a jurisdiction of Canada, it is an “accredited investor,” as such term is defined in National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) or, where applicable, section 73.3 (1) of the Securities Act (Ontario), it was not created and is not being used solely to purchase or hold securities as an accredited investor as described in paragraph (m) of the definition of “accredited investor” in NI 45-106 and has concurrently executed and delivered an accredited investor representation letter certifying its status as an accredited investor (the “Representation Letter”) and specifically represents and warrants that one or more of the categories set forth in the Representation Letter correctly, and in all respects, describes such Purchaser, and will describe such Purchaser as at the Closing Date and such Purchaser has so indicated by initialling next to the category in such Representation Letter which so describes it. Such Purchaser understands that the Issuer is relying in part upon the truth and accuracy of, and such Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments, and understandings of such Purchaser set forth herein and in the other Note Documents in order to determine the availability of such exemptions and the eligibility of such Purchaser to acquire the Notes and the shares of Common Stock issuable upon conversion of the Notes. 6.12 No Governmental Review. Such Purchaser understands that no U.S. federal or state agency or any other Governmental Authority has passed on or made any recommendation or endorsement of the Notes and the shares of Common Stock issuable upon conversion of the Notes or the fairness or suitability of an investment in the Notes and the shares of Common Stock issuable upon conversion of the Notes, nor have such authorities passed upon or endorsed the merits of the offering of the Notes and the shares of Common Stock issuable upon conversion of the Notes. In addition, such Purchaser acknowledges that: (a) there are restrictions on such Purchaser’s ability to resell the Notes and the underlying shares of Common Stock and it is the responsibility of such Purchaser to find out what those restrictions are and to comply with them before selling the Notes or shares Common Stock; (b) if such Purchaser is located in Canada, the Issuer has advised such Purchaser that the Issuer is relying on an exemption from the requirements to provide such Purchaser with a prospectus under the Securities Act (Ontario) and other applicable securities laws


 
65 US-DOCS\137446087.12 of each other province and territory of Canada, as applicable, and, as a consequence of acquiring securities pursuant to this exemption, certain protections, rights and remedies provided by the Securities Act (Ontario) and any other applicable securities laws of each other province and territory of Canada, including statutory rights of rescission or damages, will not be available to such Purchaser; and (c) any certificates representing the Notes and, if applicable, the shares of Common Stock that are purchased by any Canadian Purchasers will be endorsed with a legend stating that such securities will be subject to restrictions on resale in accordance with applicable Canadian securities legislation. 6.13 Information. Such Purchaser and its advisors (including its counsel), if any, have been furnished with all materials relating to the business, finances, and operations of the Issuer and information such Purchaser deemed material to making an informed investment decision. Such Purchaser and its advisors (including its counsel), if any, have been afforded the opportunity to ask questions of the Issuer and its management and have received answers to such questions and conducted and completed their own independent due diligence. Based on the information such Purchaser has deemed appropriate, it has independently made its own analysis and decision to invest in the Notes and the shares of Common Stock issuable upon conversion of the Notes and to enter into the Note Documents. Such Purchaser acknowledges and agrees that the Issuer has not made to such Purchaser, and such Purchaser acknowledges and agrees it has not relied upon, any representations and warranties of the Issuer, its employees, or any third party other than the representations and warranties of the Issuer contained in this Agreement. 6.14 Not an Affiliate. Such Purchaser is not an officer, director, or a person that, directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Issuer or any “affiliate” of the Issuer (as that term is defined in Rule 405 promulgated under the Securities Act). 6.15 No Prior Short Sales. At no time prior to the date of this Agreement has such Purchaser, any of its Affiliates, or any of their respective directors, officers, or any entity managed or controlled by such Purchaser or any of its Affiliates, engaged in or effected, in any manner whatsoever, directly or indirectly, for its own principal account, any (i) “short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) hedging transaction, which establishes a net short position with respect to the Common Stock that remains in effect as of the date of this Agreement. 6.16 General Solicitation. Such Purchaser is not purchasing or acquiring the Notes or the shares of Common Stock issuable upon conversion of the Notes as a result of, and neither such Purchaser nor any of its Affiliates, nor any person acting on its or their behalf, has engaged or will engage in, any form of general solicitation or general advertising (within the meaning of Regulation D promulgated under the Securities Act) in connection with any offer or sale of the Notes or the shares of Common Stock issuable upon conversion of the Notes. 6.17 ERISA. Such Purchaser is not, and is not acquiring or holding the Notes for or on behalf of, or with the assets of, an entity deemed to hold “plan assets” within the meaning of Section 3(42) of ERISA and (b) neither the execution of this Agreement or any other Note Document nor the undertaking of any of the transactions contemplated hereunder or thereunder


 
66 US-DOCS\137446087.12 will give rise to a non-exempt prohibited transaction within the meaning of Section 406 of ERISA or Section 4975 of the Internal Revenue Code or a violation of any applicable similar law. 7. AFFIRMATIVE COVENANTS So long as any Obligations (other than inchoate indemnification obligations) remain outstanding: 7.1 Financial Reporting; Notices. The Issuer shall deliver to the Purchasers: (a) within 15 days after the same are required to be filed with the SEC (giving effect to any grace period provided by Rule 12b-25 under the Exchange Act or any similar or successor grace period), copies of any periodic reports that the Issuer is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. Any such periodic report that the Issuer files with the SEC via the SEC’s EDGAR system or any successor system shall be deemed to have been delivered to the Purchasers for purposes of this Section 7.1(a) at the time such documents are filed via EDGAR or such successor system. Notwithstanding anything to the contrary, the Issuer shall in no event be required to file with, or otherwise provide or disclose to, the Purchasers any information for which the Issuer is seeking, or has received, confidential treatment from the SEC; (b) within five Business Days after any material amendment to the Vehicle Financing Debt Documents is executed and has become effective, notice of such amendment (provided that any such amendment (or notice of such amendment) that the Issuer files with the SEC via the SEC’s EDGAR system or any successor system shall be deemed to have been delivered to the Purchasers for purposes of this Section 7.1(b) at the time such documents are filed via EDGAR or such successor system); (c) within three Business Days after delivering any reporting, notice, waiver, consent, modification, amendment or material information to the Vehicle Finance Agent or the Vehicle Finance Lenders, deliver a copy of such document to the Vehicle Finance Agent; (d) within three (3) days after the same are sent or received) copies of all material correspondence, reports, documents and other filings with any Governmental Authority that could reasonably be expected to have a material adverse effect on any of the Governmental Approvals material to Issuer’s business or that otherwise could reasonably be expected to have a Material Adverse Change; (e) at least ten (10) days’ prior to Issuer’s creation of a new Subsidiary; (f) at least twenty (20) days’ prior to Issuer’s or Subsidiaries (A) changing its respective jurisdiction of organization, (B) changing its organizational structure or type, (C) changing its respective legal name, or (D) changing any organizational number(s) (if any) assigned by its respective jurisdiction of organization;


 
67 US-DOCS\137446087.12 (g) promptly (and in any event within three (3) Business Days) written upon Issuer becoming aware of the existence of any Default or Event of Default notice of such occurrence, which such notice shall include a reasonably detailed description of such Event of Default or event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, and Issuer’s proposal regarding how to cure such Event of Default or event; and (h) prompt written notice of any material litigation or governmental proceedings pending or threatened (in writing) against Issuer or any of its Subsidiaries. 7.2 Security Interest, Etc. The Issuer shall take all action reasonably necessary to establish and maintain a first-priority perfected security interest in the Collateral, in each case, free and clear of any Lien except for Liens permitted to exist under this Agreement or the other Note Documents, in favor of the Collateral Agent (on behalf of the Secured Parties), including taking such action to perfect or more fully evidence the security interest of the Collateral Agent (on behalf of the Secured Parties) as the Collateral Agent or any Secured Party may reasonably request, in each case, consistent with the terms of this Agreement or the other Note Documents. In order to evidence the security interests of the Collateral Agent under this Agreement, the Issuer shall, from time to time, take such action or execute and deliver such instruments as may be reasonably necessary to maintain and perfect, as a first-priority interest, the Collateral Agent’s security interest in the Collateral. The Collateral Agent’s approval of such instruments shall authorize the Issuer to make any necessary filings under the Code without the signature of the Issuer or the Collateral Agent where allowed by Applicable Law. 7.3 Taxes. The Issuer will timely file, and require each of its Subsidiaries to timely file (or obtain timely extensions therefor), all required material tax returns, and timely pay, and require each of its Subsidiaries to timely pay, all material foreign, federal, state, and local taxes, assessments, and other governmental charges owed by Issuer or its Subsidiaries, except to the extent failing to do so would not constitute a breach of the representation in Section 5.15 hereof; deliver to the Purchasers, on reasonable demand, appropriate certificates attesting to such payments; and pay all amounts necessary to fund all present pension, profit sharing and deferred compensation plans in accordance with the terms of such plans. 7.4 Insurance. The Issuer will keep the Issuer’s and its Subsidiaries’ business and the Collateral insured for risks and in amounts standard for companies in Issuer’s and its Subsidiaries’ industry and location and as the Required Purchasers may reasonably request. Insurance policies shall be in a form, with companies, and in amounts that are reasonably satisfactory to the Purchasers. All property policies shall have a lender’s loss payable endorsement showing the Collateral Agent (for the ratable benefit of the Secured Parties) as lender loss payee and shall waive subrogation against the Collateral Agent, and all liability policies shall show, or have endorsements showing, the Collateral Agent (for the ratable benefit of the Secured Parties), as additional insured. Subject to Section 3.4, the Collateral Agent shall be named as lender loss payee and/or additional insured with respect to any such insurance providing coverage in respect of any Collateral, and each provider of any such insurance shall agree, by endorsement upon the policy or policies issued by it or by independent instruments furnished to the Purchasers, that it will give the Collateral Agent 30 days (and 10 days for nonpayment of premium) prior written notice before any such policy or policies shall be canceled. At the reasonable request of the Required Purchasers, the


 
68 US-DOCS\137446087.12 Issuer shall deliver to the Purchasers certified copies of policies and evidence of all premium payments. Subject to the Intercreditor Agreement, proceeds payable under any policy shall, at the option of the Required Purchasers, be payable to the Collateral Agent, for the ratable benefit of the Secured Parties, on account of the then-outstanding Obligations. If the Issuer or any of its Subsidiaries fails to obtain insurance as required under this Section 7.4 or to pay any amount or furnish any required proof of payment to third persons, the Collateral Agent may make (but has no obligation to do so), at the Issuer’s expense, all or part of such payment or obtain such insurance policies required in this Section 7.4, and take any action under the policies the Collateral Agent (at the direction of the Required Purchasers) deems prudent. 7.5 Use of Proceeds. The Issuer shall use the proceeds from the issuance of the Notes received in the form of Cash Consideration for general corporate purposes. 8. NEGATIVE COVENANTS So long as any principal of or interest on the Notes or any other Obligation (whether or not due) shall remain unpaid (other than Contingent Indemnity Obligations), each Note Party shall not, unless the Required Purchasers shall otherwise consent in writing: 8.1 Fundamental Changes; Dispositions. (a) Wind-up, liquidate or dissolve, or merge, consolidate or amalgamate with any Person, including by means of a "plan of division" under the Delaware Limited Liability Company Act or any comparable transaction under any similar law, or permit any of its Subsidiaries to do any of the foregoing; provided, however, that any wholly owned Subsidiary of any Note Party may be merged into such Note Party or another wholly owned Subsidiary of such Note Party, or any Note Party may consolidate or amalgamate with another wholly owned Subsidiary of such Note Party, so long as (A) no other provision of this Agreement would be violated thereby, (B) such Note Party gives the Collateral Agent at least 30 days’ prior written notice of such merger, consolidation or amalgamation accompanied by true, correct and complete copies of all material agreements, documents and instruments relating to such merger, consolidation or amalgamation, including the certificate or certificates of merger or amalgamation or other documents to be filed with each appropriate Secretary of State or equivalent authority (with a copy as filed promptly after such filing), (C) no Default or Event of Default shall have occurred and be continuing either before or after giving effect to such transaction, (D) the Purchaser’s rights in any Collateral, including the existence, perfection and priority of any Lien thereon, are not adversely affected by such merger, consolidation or amalgamation and (E) the surviving or amalgamated Subsidiary, if any, if not already a Note Party, delivers a guaranty and a pledge and security agreement, in each case, satisfactory to the Collateral Agent (at the direction of the Required Purchasers), which is in full force and effect on the date of and immediately after giving effect to such merger, consolidation or amalgamation, and in the case of any amalgamation, together with (w) an officer's certificate from an authorized officer of the surviving or amalgamated Subsidiary, (x) resolutions of the board of directors (or equivalent governing body) of the surviving or amalgamated Subsidiary, (y) an opinion letter from counsel to such surviving or amalgamated Subsidiary opining as to such matters as the Collateral Agent (at the direction of the Required Purchasers) may reasonably


 
69 US-DOCS\137446087.12 request and (z) such lien filings as the Collateral Agents (at the direction of the Required Purchasers) may reasonably request, and (F) in the case of any such merger or consolidation involving the Issuer, the Issuer shall be the continuing or surviving entity. (b) Make any Disposition, whether in one transaction or a series of related transactions, of all or any part of its business, property or assets, whether now owned or hereafter acquired (or agree to do any of the foregoing) (including issuances of Equity Interests by Subsidiaries that do not result in a Change of Control and Dispositions of interests in Subsidiaries), or permit any of its Subsidiaries to do any of the foregoing; provided, however, that any Note Party and its Subsidiaries may make Permitted Dispositions. (c) For the avoidance of doubt, the provisions of this Section 8.1 shall not prevent or otherwise limit the ability of Bird Canada Inc. to amalgamate with 1393631 B.C. Unlimited Liability Company following the completion of the purchase and sale of the shares of Bird Canada Inc. as contemplated by the Share Purchase Agreement. 8.2 Mergers or Acquisitions. The Issuer shall not consolidate with or merge with or into, or (directly, or indirectly through one or more of the Issuer’s Subsidiaries) sell, lease, or otherwise transfer, in one transaction or a series of transactions, all or substantially all of the assets of the Issuer and its Subsidiaries, taken as a whole, to another Person (a “Business Combination Event”), unless: (a) the resulting, surviving, or transferee Person either (x) is the Issuer or (y) if not the Issuer, is a corporation (the “Successor Corporation”) duly organized and existing under the laws of the United States of America, any state thereof, or the District of Columbia that expressly assumes all of the Issuer’s obligations under this Agreement and the other Note Documents; and (b) immediately after giving effect to such Business Combination Event, no Default or Event of Default will have occurred and be continuing; provided that the Issuer and its Subsidiaries may undertake any merger, consolidation, or other similar transaction involving any Subsidiaries of the Issuer for bona fide tax planning purposes so long as such merger, consolidation, or other transaction does not have any adverse effect (other than de minimis adverse effects) on the Purchasers. At the effective time of any Business Combination Event that complies with this Section 8.2, the Successor Corporation (if not the Issuer) will succeed to, and may exercise every right and power of, the Issuer under this Agreement and the other Note Documents with the same effect as if such Successor Corporation had been named as the Issuer in this Agreement and the other Note Documents, and, the predecessor Issuer will be discharged from its obligations under this Agreement and the other Note Documents. 8.3 Incurrence of Indebtedness and Issuance of Preferred Stock.The Issuer shall not, and shall not permit any of its Subsidiaries to, create, incur, assume, guarantee or suffer to exist, or otherwise become or remain liable with respect to, or permit any of its Subsidiaries to create, incur, assume, guarantee or suffer to exist or otherwise become or remain liable with respect to, any Indebtedness (including, for certainty, any Indebtedness incurred on a contingent basis) other than Permitted Indebtedness. 8.4 Incurrence of Liens. The Issuer shall not, and shall not permit any of the Guarantors to, incur any Lien securing Indebtedness (other than Permitted Liens) on any asset or property of the Issuer or such Guarantor.


 
70 US-DOCS\137446087.12 8.5 Restricted Payments. The Issuer shall not, and shall not permit any of its Subsidiaries to, make or effect or permit any of its Subsidiaries to make or effect any Restricted Payment other than Permitted Restricted Payments. 8.6 Transactions with Affiliates. The Issuer shall not, and shall not permit any of its Subsidiaries to enter into, renew, extend or be a party to, or permit any of its Subsidiaries to enter into, renew, extend or be a party to, any Affiliate Transaction, other than (i) any transactions solely between or among the Issuer and/or any of its Subsidiaries (or an entity that becomes a Subsidiary as a result of such transaction), (ii) any transactions with any Purchaser in such Purchaser’s position as a holder of Notes, or (iii) any transactions in connection with the transactions contemplated by the Share Purchase Agreement, unless such transaction is on terms that are no less favorable to the Issuer or the relevant Subsidiary than those that could have been obtained in a comparable transaction by the Issuer or such Subsidiary with an unrelated Person on an arm’s- length basis (as determined in good faith by the Issuer) and: (1) with respect to any such transaction or series of related transactions involving aggregate consideration in excess of $1.0 million, the transaction has been approved by a resolution adopted by a majority of the disinterested members of the Board of Directors; and (2) with respect to any such transaction or series of related transactions involving aggregate consideration in excess of $5.0 million, the Issuer obtains and delivers to the Purchasers a favorable written opinion from an Independent Financial Advisor (A) as to the fairness of the transaction to Issuer and the Subsidiaries from a financial point of view; or (B) stating that the terms of such transaction are, taken as a whole, no less favorable to Issuer or the relevant Subsidiary than those that would have been obtained in a comparable arm’s-length transaction by Issuer or such Subsidiary with a Person that is not an Affiliate of Issuer or any Subsidiary. 8.7 Anti-Layering. For so long as the Notes are secured by a Lien with a junior priority to the Lien securing the Vehicle Financing Debt, the Issuer will not create, incur, assume, or suffer to exist any Indebtedness that is contractually subordinated or junior in right of payment to the Vehicle Financing Debt and senior in right of payment to the Notes. No such Indebtedness will be considered to be contractually subordinated or junior in right of payment to the Vehicle Financing Debt by virtue of being unsecured or by virtue of being secured on a junior-priority basis. 8.8 Hedging Agreements. The Issuer shall not, and shall not permit any of its Subsidiaries to, enter into any Hedging Agreement other than Hedging Agreements entered into in the ordinary course of business for hedging actual foreign exchange requirements in the following six months and actual interest rate or foreign exchange exposure in connection with financing agreements and not for speculative purposes. 9. EVENTS OF DEFAULT Any one of the following shall constitute an event of default (an “Event of Default”) under this Agreement:


 
71 US-DOCS\137446087.12 9.1 Payment Default. The Issuer or any other Note Party shall fail to pay, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), (i) any interest on, any Note or any fee, indemnity or other amount payable under this Agreement (other than any portion thereof constituting principal of the Notes) or any other Note Document, and such failure continues for a period of three Business Days, (ii) all or any portion of the principal of the Notes or (iii) comply with its obligation to convert a Note in accordance with Section 2 upon the exercise of the conversion right with respect thereto 9.2 Covenant Default. The Issuer or any of its Subsidiaries fails to perform or comply with any covenant or agreement contained in Section 8 and such failure, if capable of being remedied, shall remain unremedied for five days after the earliest of (i) the date written notice of such default shall have been given by any Purchaser to such Note Party and (ii) the date the Issuer is required to deliver a notice with respect to such default pursuant to Section 7.1(g). 9.3 Other Default. The Issuer or any other Note Party fails to perform or comply with any other term, covenant or agreement contained in any Note Document to be performed or observed by it and, except as set forth above, such failure, if capable of being remedied, shall remain unremedied for 15 days after the date written notice of such default shall have been given by any Purchaser to such Note Party. 9.4 Cross-Default. The Issuer or any of its Subsidiaries shall fail to pay when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) any principal, interest or other amount payable in respect of any Material Indebtedness, and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness, or any other default under any agreement or instrument relating to any such Indebtedness, or any other event, shall occur and shall continue after the applicable grace or cure period, if any, specified in such agreement or instrument, if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness; or any such Indebtedness shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased or an offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case, prior to the stated maturity thereof. 9.5 Insolvency. (a) The Issuer or any of its Subsidiaries (i) shall institute any Insolvency Proceeding seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, interim receiver, manager, trustee, custodian or other similar official for any such Person or for any substantial part of its property, (ii) shall be generally not paying its debts as such debts become due or shall admit in writing its inability to pay its debts generally, (iii) shall make a general assignment for the benefit of creditors, or (iv) shall take any action to authorize or effect any of the actions set forth above in this subsection (f).


 
72 US-DOCS\137446087.12 (b) any Insolvency Proceeding shall be instituted against the Issuer or any of its Subsidiaries seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for any such Person or for any substantial part of its property, and either such Insolvency Proceeding shall remain undismissed or unstayed for a period of 30 days or the relief sought in such proceeding (including the entry of an order for relief against any such Person or the appointment of a receiver, interim receiver, manager, trustee, custodian or other similar official for it or for any substantial part of its property) shall be granted and not subject to appeal. 9.6 Note Documents. Any material provision of any Note Document shall at any time for any reason (other than pursuant to the express terms thereof) cease to be valid and binding on or enforceable against any Note Party intended to be a party thereto, or the validity or enforceability thereof shall be contested by any party thereto, or a proceeding shall be commenced by any Note Party or any Governmental Authority having jurisdiction over any of them, seeking to establish the invalidity or unenforceability thereof, or any Note Party shall deny in writing that it has any liability or obligation purported to be created under any material Note Document. 9.7 Collateral. Any Note Document covering a material portion of the Collateral for any reason (other than pursuant to the terms thereof) ceases to create a valid and perfected Lien on, and security interest in, any material portion of the Collateral covered thereby with respect to the Notes, subject to Permitted Liens, except to the extent that any such perfection or priority is not required pursuant to the Note Documents or results from the failure of the Collateral Agent to maintain possession of certificates actually delivered to it representing securities pledged under the Note Documents. 9.8 Judgments. One or more final non-appealable monetary judgments, orders or awards (or any settlement of any litigation or other proceeding that, if breached, could result in a judgment, order or award) for the payment of money exceeding $2.0 million in the aggregate (except to the extent fully covered (other than to the extent of customary deductibles) by insurance pursuant to which the insurer has been notified and has not denied coverage) shall be rendered against the Issuer or any of its Subsidiaries and remain unsatisfied and (i) enforcement proceedings shall have been commenced by any creditor upon any such judgment, order, award or settlement or (ii) there shall be a period of 30 consecutive days after entry thereof during which (A) a stay of enforcement thereof is not be in effect or (B) the same is not vacated, discharged, stayed or bonded. 9.9 Material Adverse Effect. A Material Adverse Effect shall occur with respect to any Note Party. 9.10 Change of Control. A “Change of Control” as defined in the Vehicle Finance Agreement occurs. 9.11 Share Purchase Agreement. The Transactions under the Share Purchase Agreement which are to be consummated on January 3, 2023 are not completed on such date or by no later than January 6, 2023 (or such later date as the parties to the Share Purchase Agreement may agree).


 
73 US-DOCS\137446087.12 10. RIGHTS AND REMEDIES 10.1 Rights and Remedies. (a) Upon the occurrence and during the continuance of an Event of Default (other than an Event of Default under Section 9.5), the Required Purchasers may deliver notice of the Event of Default to the Issuer and, by notice to the Issuer, declare all Obligations immediately due and payable (but if an Event of Default described in Section 9.5 occurs, all Obligations shall be immediately due and payable upon delivery of the notice pursuant to clause (x) without any further action by the Purchasers). The Obligations due and payable upon such notice to the Issuer at any time prior to December 30, 2024 shall include (but not be limited to) the applicable Redemption Price (including, for the avoidance of doubt, any PIK Interest paid with respect to the principal thereof), plus accrued and unpaid interest on such Notes to, but excluding, the date of payment. (b) Without limiting the rights of the Purchasers set forth in Section 10.1(a) above, upon the occurrence and during the continuance of an Event of Default, the Required Purchasers may, without notice or demand, do any or all of the following: (i) direct the Collateral Agent to foreclose upon and/or sell or otherwise liquidate the Collateral; (ii) direct the Collateral Agent to make a demand for payment upon any Guarantor pursuant to the Guarantee delivered by such Guarantor; (iii) direct Collateral Agent to apply to the Obligations any (A) balances and deposits of Issuer that Collateral Agent or any Purchaser holds or controls, (B) any amount held or controlled by Collateral Agent or any Purchaser owing to or for the credit or the account of Issuer; and/or (iv) commence and prosecute an Insolvency Proceeding or consent to the Issuer commencing any Insolvency Proceeding. (c) Without limiting the rights of the Collateral Agent and the Purchasers set forth in Sections 10.1(a) and (b) above, upon the occurrence and during the continuance of an Event of Default, the Collateral Agent shall have the right to, at the written direction of the Required Purchasers, without notice or demand, do any or all of the following: (i) settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Collateral Agent considers advisable, notify any Person owing Issuer money of Collateral Agent’s security interest in such funds, and verify the amount of such account; (ii) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its Liens in the Collateral (held for the ratable benefit of the Secured Parties). Issuer shall assemble the Collateral if Collateral Agent requests and make it available at such location as Collateral Agent reasonably designates. Collateral Agent (or its designee) may enter premises where


 
74 US-DOCS\137446087.12 the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred. Issuer grants Collateral Agent a license to enter and occupy any of its premises, without charge, to exercise any of Collateral Agent’s rights or remedies; (iii) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, and/or advertise for sale, any of the Collateral. Collateral Agent is hereby granted a non-exclusive, royalty-free license or other right to use, without charge, Issuer’s and each of its Subsidiaries’ labels, patents, copyrights, mask works, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any similar property as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Collateral Agent’s exercise of its rights under this Section 10.1, Issuer’s and each of its Subsidiaries’ rights under all licenses and all franchise agreements inure to Collateral Agent, for the benefit of the Purchasers; (iv) place a “hold” on any Collateral Account maintained with Collateral Agent or any Purchaser or otherwise in respect of which a Control Agreement has been delivered in favor of Collateral Agent (for the ratable benefit of the Secured Parties) and/or deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral; (v) demand and receive possession or copies of the Issuer’s or any of its Subsidiaries’ books and records; (vi) appoint a receiver to seize, manage, and realize any of the Collateral, and such receiver shall have any right and authority as any competent court will grant or authorize in accordance with any Applicable Law, including any power or authority to manage the business of the Issuer or any Guarantor; (vii) sell or otherwise dispose of all or any part of the Issuer Pledged 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 (at the direction of the Required Purchasers) shall deem appropriate; and (viii) subject to clauses (a) and (b) of this Section 10.1, exercise all rights and remedies available to the Collateral Agent and each Purchaser under the Note Documents or at law or equity, including all remedies provided under the Code (including disposal of the Collateral pursuant to the terms thereof). The Collateral Agent shall be authorized at any 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


 
75 US-DOCS\137446087.12 so sold. The Collateral Agent shall give the Issuer no less than ten (10) days’ prior written notice of the Collateral Agent’s intention to make any sale of Collateral. 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 (at the direction of the Required Purchasers) may (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 the Issuer (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 the Note Party 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 the Note Party 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 10.01 shall be deemed to in accordance with any requirements under the Code. 10.2 Power of Attorney. Issuer hereby irrevocably appoints Collateral Agent as its lawful attorney-in-fact, exercisable upon the occurrence and during the continuance of an Event of Default, to: (a) endorse Issuer’s or any of its Subsidiaries’ name on any checks or other forms of payment or security; (b) sign Issuer’s or any of its Subsidiaries’ name on any invoice or bill of lading for any Account or drafts against Account Debtors; (c) settle and adjust disputes and claims about the Accounts of Issuer directly with the applicable Account Debtors, for amounts and on terms Collateral Agent determines reasonable; (d) make, settle, and adjust all claims under Issuer’s insurance policies; (e) pay, contest or settle any Lien, charge, encumbrance, security interest, and adverse claim in or to the Collateral, or any judgment based thereon, or otherwise take any action to terminate or discharge the same; and (f) transfer the Collateral into the name of Collateral Agent or a third party as the Code or any applicable law permits (including by filing assignment agreements with the United States Patent and Trademark Office, United States Copyright Office or equivalent in any jurisdiction outside of the United States). Issuer hereby appoints Collateral Agent as its lawful attorney-in-fact to sign Issuer’s or any of its Subsidiaries’ name on any documents necessary to perfect or continue the perfection of Collateral Agent’s security interest in the Collateral regardless of whether an Event of Default has occurred until all Obligations (other


 
76 US-DOCS\137446087.12 than inchoate indemnity obligations) have been satisfied in full and Purchasers are under no further obligation to purchase Notes hereunder. Collateral Agent’s foregoing appointment as Issuer’s or any of its Subsidiaries’ attorney in fact, and all of Collateral Agent’s rights and powers, coupled with an interest, are irrevocable until all Obligations (other than inchoate indemnity obligations) have been fully repaid and performed and the Purchasers’ obligation to purchase the Notes terminates. 10.3 Protective Payments. If Issuer or any of its Subsidiaries fail to obtain the insurance called for by Section 7.4 or fails to pay any premium thereon or fails to pay any other amount which Issuer or any of its Subsidiaries is obligated to pay under this Agreement or any other Note Document, Collateral Agent may (but shall not be obligated to) obtain such insurance or make such payment, and all amounts so paid by Collateral Agent are Purchasers’ Expenses and immediately due and payable, bearing interest at the Default Rate, and secured by the Collateral. Collateral Agent will make reasonable efforts to provide Issuer with notice of Collateral Agent obtaining such insurance or making such payment at the time it is obtained or paid or within a reasonable time thereafter. No such payments by Collateral Agent are deemed an agreement to make similar payments in the future or Collateral Agent’s waiver of any Event of Default. 10.4 Application of Payments and Proceeds. Notwithstanding anything to the contrary contained in this Agreement, upon the occurrence and during the continuance of an Event of Default, (a) the Issuer irrevocably waives the right to direct the application of any and all payments at any time or times thereafter received by the Collateral Agent or the Purchasers from or on behalf of the Issuer or any of its Subsidiaries of all or any part of the Obligations, and, as between the Issuer, on the one hand, and the Collateral Agent and Purchasers, on the other, the Collateral Agent and the Purchasers shall have the continuing and exclusive right to apply and to reapply any and all payments received against the Obligations in such manner as the Collateral Agent or the Purchasers may deem advisable notwithstanding any previous application by the Collateral Agent or the Purchasers, and (b) the proceeds of any sale of, or other realization upon, all or any part of the Collateral shall be applied by the Collateral Agent: first, to any Collateral Agent fees and expenses (including, any fees, expenses and disbursements of counsel); second, to accrued and unpaid interest on the Obligations (including any interest that, but for the provisions of the Bankruptcy Code, would have accrued on such amounts); third, to the principal amount of the Obligations outstanding; and fourth, to any other Obligations owing to the Collateral Agent or any Purchaser under the Note Documents. Any balance remaining shall be delivered to the Issuer or to whomever may be lawfully entitled to receive such balance or as a court of competent jurisdiction may direct. In carrying out the foregoing, (x) amounts received shall be applied in the numerical order provided until exhausted prior to the application to the next succeeding category, and (y) each of the Persons entitled to receive a payment in any particular category shall receive an amount equal to its pro rata share of amounts available to be applied pursuant thereto for such category. Any reference in this Agreement to an allocation between or sharing by the Purchasers of any right, interest, or obligation “ratably,” “proportionally,” or in similar terms shall refer to the Purchasers’ pro rata share unless expressly provided otherwise. Each Purchaser shall promptly remit to the other Purchasers such sums as may be necessary to ensure the ratable repayment of each Purchaser’s pro rata share of the Notes and the ratable distribution of interest, fees, and reimbursements paid or made by the Issuer. Notwithstanding the foregoing, a Purchaser receiving a scheduled payment shall not be responsible for determining whether the other Purchasers also received their scheduled payment on such date; provided, however, if it is later determined that a


 
77 US-DOCS\137446087.12 Purchaser received more than its pro rata share of scheduled payments made on any date or dates, then such Purchaser shall remit to other the Purchasers such sums as may be necessary to ensure the ratable payment of such scheduled payments. If any payment or distribution of any kind or character, whether in cash, properties, or securities, shall be received by a Purchaser in excess of its pro rata share, then the portion of such payment or distribution in excess of such Purchaser’s pro rata share shall be received and held by such Purchaser in trust for and shall be promptly paid over to the other Purchasers (in accordance with their respective pro rata shares) for application to the payments of amounts due on such other Purchasers’ claims. To the extent any payment for the account of the Issuer is required to be returned as a voidable transfer or otherwise, the Purchasers shall contribute to one another as is necessary to ensure that such return of payment is on a pro rata basis. If any Purchaser shall obtain possession of any Collateral, it shall hold such Collateral for itself and as agent and bailee for the Secured Parties for purposes of perfecting the Collateral Agent’s security interest therein (held for the ratable benefit of the Secured Parties). 10.5 Liability for Collateral. So long as the Collateral Agent complies with reasonable practices regarding the safekeeping of the Collateral in the possession or under the control of the Collateral Agent, the Collateral Agent shall not be liable or responsible for: (a) the safekeeping of the Collateral; (b) any loss or damage to the Collateral; (c) any diminution in the value of the Collateral; or (d) any act or default of any carrier, warehouseman, bailee, or other Person. The Issuer bears all risk of loss, damage, or destruction of the Collateral. 10.6 No Waiver; Remedies Cumulative. Failure by the Collateral Agent or any Purchaser, at any time or times, to require strict performance by the Issuer of any provision of this Agreement or any other Note Document shall not waive, affect, or diminish any right of the Collateral Agent or any Purchaser thereafter to demand strict performance and compliance herewith or therewith. No waiver hereunder shall be effective unless signed by the Collateral Agent and the Required Purchasers, and then is only effective for the specific instance and purpose for which it is given. The rights and remedies of the Collateral Agent and the Purchasers under this Agreement and the other Note Documents are cumulative. The Collateral Agent and the Purchasers have all rights and remedies provided under the Code, any Applicable Law, by law, or in equity. The exercise by the Collateral Agent or any Purchaser of one right or remedy is not an election, and any Purchaser’s waiver of any Event of Default is not a continuing waiver. The Collateral Agent’s or any Purchaser’s delay in exercising any remedy is not a waiver, election, or acquiescence. 10.7 Demand Waiver. Issuer waives, to the fullest extent permitted by law, demand, notice of default or dishonor, notice of payment and nonpayment, notice of any default, nonpayment at maturity, release, compromise, settlement, extension, or renewal of accounts, documents, instruments, chattel paper, and guarantees held by Collateral Agent or any Purchaser on which Issuer or any Subsidiary is liable. 10.8 Setoff and Sharing of Payments. In addition to any rights now or hereafter granted under any Applicable Law and not by way of limitation of any such rights, upon the occurrence and during the continuance of any Event of Default, each Purchaser is hereby authorized at any time or from time to time upon the direction of the Required Purchasers, without notice to Issuer or any other Person, any such notice being hereby expressly waived, to setoff and to appropriate and to apply any and all balances held by it at any of its offices for the account of Issuer (regardless


 
78 US-DOCS\137446087.12 of whether such balances are then due to Issuer) and any other properties or assets at any time held or owing by that Purchaser or that holder to or for the credit or for the account of Issuer against and on account of any of the Obligations that are not paid when due. Any Purchaser exercising a right of setoff or otherwise receiving any payment on account of the Obligations in excess of its Pro Rata Share thereof shall purchase for cash (and the other Purchasers or holders shall sell) such participations in each such other Purchaser’s or holder’s Pro Rata Share of the Obligations as would be necessary to cause such Purchaser to share the amount so offset or otherwise received with each other Purchaser or holder in accordance with their respective Pro Rata Shares of the Obligations. Issuer agrees, to the fullest extent permitted by law, that (a) any Purchaser may exercise its right to offset with respect to amounts in excess of its Pro Rata Share of the Obligations and may purchase participations in accordance with the preceding sentence and (b) any Purchaser so purchasing a participation in the Notes made or other Obligations held by other Purchasers or holders may exercise all rights of offset, bankers’ liens, counterclaims or similar rights with respect to such participation as fully as if such Purchaser or holder were a direct holder of the Notes and the other Obligations in the amount of such participation. Notwithstanding the foregoing, if all or any portion of the offset amount or payment otherwise received is thereafter recovered from the Purchaser that has exercised the right of offset, the purchase of participations by that Purchaser shall be rescinded and the purchase price restored without interest. 11. NOTICES Other than as specifically provided herein, all notices, consents, approvals, requests, demands, or other communication (collectively, “Communications”) by any party to this Agreement or any other Note Document must be in writing and shall be deemed to have been validly served, given, or delivered: (a) upon the earlier of actual receipt and three Business Days after deposit in the U.S. mail, first class, registered or certified mail return receipt requested, with proper postage prepaid; (b) upon transmission, when sent by email; (c) one Business Day after deposit with a reputable overnight courier with all charges prepaid; or (d) when delivered, if hand- delivered by messenger; all of which shall be addressed to the party to be notified and sent to the address or email address indicated below (and, if delivered pursuant to clause (a), (c), or (d) above, together with a copy of such Communications by email). Any of the Collateral Agent, any Purchaser or the Issuer may change its mailing address or email address by giving the other party written notice thereof in accordance with the terms of this Section 11. If to the Issuer: Bird Global, Inc. 392 NE 191st Street #20388 Miami, Florida 33179 Attn: General Counsel; Chief Financial Officer Email: lisa.murison@bird.co; ben.lu@bird.co If to the Collateral Agent: U.S. Bank Trust Company, National Association EP-MN-WS3C West Side Flats St. Paul 60 Livingston Ave. St. Paul, MN 55107 Attn: Bird Global Notes Administrator Email: brandon.bonfig@usbank.com


 
79 US-DOCS\137446087.12 with a copy (which shall not constitute notice) to: Covington & Burling LLP The New York Times Building 620 Eighth Ave. New York, NY 10018 Attn: Ronald A. Hewitt Email: rhewitt@cov.com If to any Purchaser, to it at its address or email address as set forth in Schedule 2.1. 12. CHOICE OF LAW; VENUE; JURY TRIAL WAIVER 12.1 Waiver of Jury Trial. EACH OF THE ISSUER, THE COLLATERAL AGENT, AND EACH PURCHASER UNCONDITIONALLY WAIVES ANY AND ALL RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER NOTE DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS AMONG THE ISSUER, THE COLLATERAL AGENT, AND/OR ANY PURCHASER RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED AMONG THE ISSUER, THE COLLATERAL AGENT, AND/OR ANY PURCHASER. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THIS WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS, OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER NOTE DOCUMENTS, OR ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY RELATED TRANSACTION. 12.2 Governing Law and Jurisdiction. THIS AGREEMENT, THE OTHER NOTE DOCUMENTS, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY, AND PERFORMANCE, REGARDLESS OF THE LOCATION OF THE COLLATERAL; PROVIDED, HOWEVER, THAT IF THE LAWS OF ANY JURISDICTION OTHER THAN NEW YORK SHALL GOVERN IN REGARD TO THE VALIDITY, PERFECTION, OR EFFECT OF PERFECTION OF ANY LIEN OR IN REGARD TO PROCEDURAL MATTERS AFFECTING ENFORCEMENT OF ANY LIENS IN COLLATERAL, SUCH LAWS OF SUCH OTHER JURISDICTIONS SHALL CONTINUE TO APPLY TO THAT EXTENT. 12.3 Submission to Jurisdiction. Any legal action or proceeding with respect to the Note Documents shall be brought exclusively in the courts of the State of New York located in the City of New York, Borough of Manhattan, or of the United States of America for the Southern District of New York and, by execution and delivery of this Agreement, the Issuer hereby accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the


 
80 US-DOCS\137446087.12 aforesaid courts. Notwithstanding the foregoing, Collateral Agent and Purchasers shall have the right to bring any action or proceeding against Issuer (or any property of Issuer) in the court of any other jurisdiction Collateral Agent or Purchasers deem necessary or appropriate in order to realize on the Collateral or other security for the Obligations. The parties hereto hereby irrevocably waive any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, that any of them may now or hereafter have to the bringing of any such action or proceeding in such jurisdictions. 12.4 Service of Process. The Issuer irrevocably waives personal service of any and all legal process, summons, notices, and other documents and other service of process of any kind and consents to such service in any suit, action or proceeding brought in the United States of America with respect to or otherwise arising out of or in connection with any Note Document by any means permitted by Applicable Law, including by the mailing thereof (by registered or certified mail, postage prepaid) to the address of the Issuer specified herein (and shall be effective when such mailing shall be effective, as provided therein). The Issuer agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. 12.5 Non-Exclusive Jurisdiction. Nothing contained in this Section 12 shall affect the right of the Collateral Agent, or the Purchasers to serve process in any other manner permitted by Applicable Law or commence legal proceedings or otherwise proceed against the Issuer in any other jurisdiction. 13. GENERAL PROVISIONS 13.1 Successors and Assigns. This Agreement binds and is for the benefit of the successors and permitted assigns of each party. The Issuer may not transfer, pledge, or assign this Agreement or any other Note Document or any of its rights or obligations hereunder or under any other Note Document without the prior written consent of the Required Purchasers (which may be granted or withheld in the Required Purchasers’ discretion, subject to Section 13.5). The Purchasers may not sell, transfer, assign, or pledge any Notes or all or any part of the Purchasers’ obligations, rights, and benefits under this Agreement and the other Note Documents (any such sale, transfer, assignment, or pledge, a “Purchaser Transfer”) without the prior written consent of the Issuer (such consent not to be unreasonably withheld, conditioned, or delayed); provided that such consent shall not be required for a Purchaser Transfer to (i) a Person who at such time is an existing Purchaser, (ii) to an Affiliate of such transferring Purchaser, or (iii) to any other Person at any time during which an Event of Default has occurred and is continuing. The Issuer and the Collateral Agent shall be entitled to continue to deal solely and directly with such Purchaser in connection with the interests so assigned until the Required Purchasers shall have received and accepted an effective assignment agreement in form satisfactory to the Required Purchasers executed, delivered and fully completed by the applicable parties thereto (with a copy to the Collateral Agent), and shall have received such other information regarding such assignee as the Required Purchasers reasonably shall require. Each transferee of Notes will be deemed to have made the representations and warranties of a Purchaser hereunder, with effect as of the date of transfer. The Issuer shall maintain at one of its offices in the United States a register for the recordation of the names and addresses of the Purchasers and principal amounts (and stated interest) of the Notes owing to each Purchaser pursuant to the terms hereof from time to time (the


 
81 US-DOCS\137446087.12 “Register”). The entries in the Register shall be conclusive absent manifest error, and the Issuer, the Collateral Agent, and the Purchasers shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Purchaser hereunder for all purposes of this Agreement and the other Note Documents. The Register shall be available for inspection by any Purchaser and the Collateral Agent at any reasonable time and from time to time upon reasonable prior notice. Notwithstanding any other language to the contrary contained herein or in any other Note Documents, as of any particular date, the Collateral Agent shall be entitled to rely conclusively upon the Register (including without limitation in connection with any determination as to which Purchasers constitute the Required Purchasers under this Agreement). For the avoidance of doubt, the Collateral Agent (in its capacity as the Collateral Agent) shall have no responsibility for maintaining the Register. If the Issuer fails to provide the Collateral Agent with the Register upon the Collateral Agent’s request thereof, the Collateral Agent shall be entitled to rely conclusively upon information provided by any Purchaser as to the unpaid principal, interest and other amounts due and owing to such Purchaser. 13.2 Indemnification; Waivers. (a) Indemnification by the Issuer. The Issuer agrees to indemnify, reimburse, defend, and hold the Collateral Agent and its directors, officers, employees, consultants, agents, attorneys, or any other Person affiliated with or representing the Collateral Agent (each, an “Indemnified Person”) harmless against: (i) all liabilities, obligations, demands, and claims asserted by any other party in connection with, related to, following, or arising from, out of, or under the transactions contemplated by the Note Documents, whether in contract, tort, or otherwise (collectively, “Claims”); and (ii) all Purchasers’ Expenses and other losses and expenses incurred, or paid by Indemnified Person in connection with, related to, following, or arising from, out of, or under, the transactions contemplated by the Note Documents (including reasonable attorneys’ fees and expenses and, if necessary or appropriate, one local counsel in each reasonably necessary and materially relevant jurisdiction for the Indemnified Persons as a whole), except, in each case, for Claims and/or losses directly caused by such Indemnified Person’s gross negligence, fraud, or willful misconduct, in each case, as determined by a court of competent jurisdiction by final and non-appealable judgment. The Issuer hereby further agrees to indemnify, reimburse, defend, and hold each Indemnified Person harmless from and against any and all liabilities, obligations, demands, claims, losses, damages, penalties, actions, judgments, suits, costs, expenses, and disbursements of any kind or nature whatsoever (including the fees and disbursements of one counsel for and, if necessary or appropriate, one local counsel in each reasonably necessary and materially relevant jurisdiction for the Indemnified Persons, taken as a whole) in connection with any investigative, response, remedial, administrative, or judicial matter or proceeding, whether or not such Indemnified Person shall be designated a party thereto and including any such proceeding initiated by or on behalf of the Issuer or its stockholders, except for liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses, and disbursements directly caused by such Indemnified Person’s gross negligence, fraud, or willful misconduct, in each case, as determined by a court of competent jurisdiction by final and non-appealable judgment. This Section 13.2(a) shall not apply with respect to taxes, assessments, or other governmental charges other than any taxes, assessments, and other governmental charges that represent Claims arising from any non-tax claim.


 
82 US-DOCS\137446087.12 (b) Waiver of Consequential Damages. To the fullest extent permitted by Applicable Law, no party hereto shall assert, and each party hereto hereby waives, any claim against any Indemnified Person or any other party hereto, on any theory of liability, for special, indirect, consequential, or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Note Document, or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, or the use of the proceeds thereof. No Indemnified Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Note Documents or the transactions contemplated hereby or thereby. 13.3 Severability of Provisions. Each provision of this Agreement is severable from every other provision in determining the enforceability of any provision. 13.4 Correction of Note Documents. The Required Purchasers may correct patent errors and fill in any blanks in this Agreement and the other Note Documents consistent with the agreement of the parties. 13.5 Amendments in Writing; Integration. (a) No amendment, waiver, modification, or termination of any provision of this Agreement or any other Note Document, no approval or consent hereunder or thereunder, or any consent to any departure by the Issuer or any of its Subsidiaries herefrom or therefrom, shall in any event be effective unless the same shall be in writing and signed by the Issuer, the Collateral Agent, and the Required Purchasers; provided that: (i) no such amendment, waiver, or other modification that would have the effect of increasing or reducing the amount outstanding under the Notes held by a Purchaser shall be effective as to such Purchaser without such Purchaser’s written consent; (ii) no such amendment, waiver, or modification that would affect the rights, duties, benefits, privileges, protections, indemnities or immunities of the Collateral Agent shall be effective without the Collateral Agent’s written consent or signature; (iii) no such amendment, waiver, or other modification shall, unless signed by all the Purchasers directly affected thereby and: (A) reduce the principal of, rate of interest on, or Redemption Price or any fees with respect to the Notes or forgive any principal, Redemption Price or fees, or interest (other than default interest) with respect to the Notes; (B) postpone the date fixed for, or waive, any payment of principal of any Note or of interest on any Note (other than default interest); (C) change the definition of the term “Required Purchasers” or the percentage of Purchasers that shall be required for the Purchasers to take any action hereunder; (D) release all or substantially all of or any material portion of the Collateral, authorize the Issuer to sell or otherwise dispose of all or substantially all


 
83 US-DOCS\137446087.12 of or any material portion of the Collateral, or release any Guarantor of all or any portion of the Obligations or its Guarantee obligations with respect thereto, except, in each case with respect to this clause (D), as otherwise may be expressly permitted under this Agreement or the other Note Documents (including in connection with any disposition permitted hereunder); (E) amend, waive, or otherwise modify this Section 13.5 or the definitions of the terms used in this Section 13.5 insofar as the definitions affect the substance of this Section 13.5; (F) consent to the assignment, delegation, or other transfer by the Issuer of any of its rights and obligations under any Note Document or release the Issuer of its payment obligations under any Note Document, except, in each case with respect to this clause (F), pursuant to a merger or consolidation permitted pursuant to this Agreement; (G) amend any of the provisions of Section 10.4 that provide for the Purchasers to receive their pro rata share of any fees, payments, setoffs, or proceeds of Collateral hereunder; (H) subordinate the Liens granted in favor of Collateral Agent securing the Obligations; or (I) amend any of the provisions of Section 13.5 (J) make any change that materially adversely affects the conversion rights of any Note; and (iv) It is hereby understood and agreed that all Purchasers shall be deemed directly affected by an amendment, waiver or other modification of the type described in the preceding clauses (C), (D), (E), (F), (G) and (H) of the immediately preceding sentence (b) Other than as expressly provided for in Section 13.5(a)(i)-(iii), the Required Purchasers may from time to time designate covenants or other terms in this Agreement less restrictive on the Issuer or its Subsidiaries by notification to a representative of the Issuer. (c) For so long as the Voting Agreement is in effect and the Investors (as defined in the Voting Agreement) have appointed any Investor Designees (as defined in the Voting Agreement) who are members of the Board of Directors, the approval of a written consent signed on behalf of each of the directors (including such Investor Designees) or the approval of a resolution of the Board of Directors including such Investor Designees at a properly constituted meeting of the Board of Directors shall be deemed to be an approval (or consent or waiver, as the case may be) of the Required Purchasers of any event, occurrence, transaction or state of affairs which would otherwise be in conflict or breach of any of the covenants in Section 7 or Section 8 of this Agreement, to the extent expressly approved by the Board of Directors in such resolution(s). (d) Each of the Purchasers hereby irrevocably appoints John Bitove to act on its behalf as representative (the “Purchasers’ Representative”) hereunder and under the other Note Documents and authorizes the Purchasers’ Representative to take any actions on its behalf and to exercise such powers as are delegated to the Required Purchasers by the terms hereof or thereof from time to time, but shall not be obligated to exercise such discretion. The Person serving as the Purchasers’ Representative hereunder shall have the same rights and powers in its capacity as a Purchaser as any other Purchaser and may exercise the same as though it were not the Purchasers’ Representative, and the term “Purchaser” or “Purchasers” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the


 
84 US-DOCS\137446087.12 Purchasers’ Representative hereunder in its individual capacity. The Purchasers’ Representative shall not have any duties or obligations except those expressly set forth herein, and its duties hereunder shall be administrative in nature. The Purchasers’ Representative shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing and shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby. The Purchasers’ Representative shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Purchasers. The Purchasers’ Representative may at any time give notice of its resignation to the Purchasers and the Issuer. Upon receipt of any such notice of resignation, the Required Purchasers shall have the right to appoint a successor. (e) This Agreement and the Note Documents represent the entire agreement about this subject matter and supersede prior negotiations or agreements with respect to such subject matter. All prior agreements, understandings, representations, warranties, and negotiations between the parties about the subject matter of this Agreement and the Note Documents merge into this Agreement and the Note Documents. 13.6 Counterparts. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, is an original, and all taken together, constitute one Agreement. Delivery of an executed counterpart of a signature page of this Agreement by facsimile, portable document format (.pdf), or other electronic transmission will be as effective as delivery of a manually executed counterpart hereof. Unless otherwise provided herein or in any other related document, the words “execute,” “execution,” “signed,” and “signature” and words of similar import used in or related to any document to be signed in connection with this Agreement, any other Note Document, any other related document, or any of the transactions contemplated hereby (including amendments, waivers, consents, and other modifications) shall be deemed to include electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity, or enforceability as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other similar state laws based on the Uniform Electronic Transactions Act. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any other party and shall have no duty to investigate, confirm, or otherwise verify the validity or authenticity thereof. 13.7 Survival. All covenants, representations, and warranties made in this Agreement will continue in full force and effect until this Agreement has terminated pursuant to its terms and all Obligations (other than inchoate indemnity obligations) have been satisfied. The obligation of the Issuer in Section 13.2 to indemnify the Collateral Agent, the confidentiality provisions in Section 13.8, and the provisions of Section 13.12 shall survive the termination of the Note Documents and the payment in full of the Obligations hereunder. 13.8 Confidentiality. In handling any confidential information of Issuer, each of the Purchasers and Collateral Agent shall exercise the same degree of care that it exercises for their own proprietary information, but disclosure of information may be made: (a) subject to the terms


 
85 US-DOCS\137446087.12 and conditions of this Agreement, to the Purchasers’ and Collateral Agent’s Subsidiaries or Affiliates, or in connection with a Purchaser’s own financing or securitization transactions and upon the occurrence of a default, event of default or similar occurrence with respect to such financing or securitization transaction; (b) to prospective transferees (other than those identified in (a) above) or purchasers of any interest in the Notes (provided, however, the Purchasers and Collateral Agent shall, except upon the occurrence and during the continuance of an Event of Default, obtain such prospective transferee’s or purchaser’s agreement to the terms of this provision or to similar confidentiality terms); (c) as required by law, rule, regulation, regulatory or self-regulatory authority, subpoena, or other order; (d) to Purchasers’ or Collateral Agent’s regulators or as otherwise required in connection with an examination or audit; (e) as Collateral Agent or the Required Purchasers may reasonably considers appropriate in exercising remedies under the Note Documents; and (f) to third party service providers of the Purchasers and/or Collateral Agent so long as such service providers have executed a confidentiality agreement or have agreed to similar confidentiality terms with the Purchasers and/or Collateral Agent, as applicable, with terms no less restrictive than those contained herein. Confidential information does not include information that either: (i) is in the public domain or in the Purchasers’ and/or Collateral Agent’s possession when disclosed to the Purchasers and/or Collateral Agent, or becomes part of the public domain after disclosure to the Purchasers and/or Collateral Agent through no breach of this provision by the Purchasers or the Collateral Agent; or (ii) is disclosed to the Purchasers and/or Collateral Agent by a third party, if the Purchasers and/or Collateral Agent does not know that the third party is prohibited from disclosing the information. Collateral Agent and the Purchasers may use confidential information for any purpose, including, without limitation, for the development of client databases, reporting purposes, and market analysis so long as the Collateral Agent and the Purchasers do not disclose the identity of Issuer or the identity of any person associated with Issuer. The provisions of the immediately preceding sentence shall survive the termination of this Agreement. The agreements provided under this Section 13.8 supersede all prior agreements, understanding, representations, warranties, and negotiations between the parties about the subject matter of this Section 13.8. 13.9 Public Announcement. Issuer hereby agrees that Collateral Agent and each Purchaser, after consultation with Issuer, may make a public announcement of the transactions contemplated by this Agreement, and may publicize the same in marketing materials, newspapers and other publications, and otherwise, and in connection therewith may use Issuer’s name, tradenames and logos. Notwithstanding the foregoing, such consultation with Issuer shall not be required for any disclosures by Collateral Agent and the Purchasers may also make disclosures to the SEC or other governmental agency and any other public disclosure with investors, other governmental agencies or other related persons. 13.10 Collateral Agent and Purchaser Agreement. The Collateral Agent and the Purchasers hereby agree to the terms and conditions set forth on Exhibit C attached hereto. The Issuer acknowledges and agrees to the terms and conditions set forth on Exhibit C attached hereto. 13.11 Time of Essence. Time is of the essence for the performance of Obligations under this Agreement. 13.12 Several Obligations. All of the obligations and liabilities of the Purchasers under this Agreement are several and not joint or joint and several.


 
86 US-DOCS\137446087.12 13.13 Termination Prior to Maturity Date; Survival. All covenants, representations and warranties made in this Agreement continue in full force until this Agreement has terminated pursuant to its terms and all Obligations have been satisfied. So long as Issuer has satisfied the Obligations (other than inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of this Agreement and for which no claim has been made) in accordance with the terms of this Agreement, this Agreement may be terminated prior to the Maturity Date by Issuer, effective five (5) Business Days after written notice of termination is given to the Collateral Agent and the Purchasers. 13.14 Withholding. In the event that the Issuer is required to remit any amounts to a taxing authority on account of taxes required to be deducted or withheld in respect of the Notes, the Issuer shall be entitled to withhold from or offset any such amounts against any amounts or value payable to such Purchaser (including any value deliverable to such Purchaser in connection with a conversion of a Note). The provisions of this Section 13.14 shall survive the performance or termination of this Agreement. For the avoidance of doubt, the provisions of this Section 13.14 shall not limit any obligation of the Issuer with respect to Indemnified Taxes set forth in Exhibit D. [Signature Pages Follow]


 
[Signature Page to Note Purchase Agreement] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Closing Date. ISSUER: BIRD GLOBAL, INC. By: /s/ Shane Torchiana Name: Shane Torchiana Title: President and Chief Executive Officer


 
[Signature Page to Note Purchase Agreement] PURCHASER: ALATE I LP, by its General Partner, ALATE I GP INC. By: /s/ Jay Jiang Name: Jay Jiang Title: Authorized Signatory By: /s/ Jeannette Wiltse Name: Jeannette Wiltse Title: Director


 
[Signature Page to Note Purchase Agreement] PURCHASER: MKB PARTNERS FUND II, LIMITED PARTNERSHIP, by its general partner, MKB PARTNERS FUND II GP INC. By: /s/ Antonio Occhionero Name: Antonio Occhionero Title: Authorized Signatory MKB PARTNERS FUND II INTERNATIONAL, LIMITED PARTNERSHIP, by its general partner, MKB PARTNERS FUND II GP INC. By: /s/ Antonio Occhionero Name: Antonio Occhionero Title: Authorized Signatory


 
[Signature Page to Note Purchase Agreement] PURCHASER: OBELYSK TRANSPORT L.P., by its general partner, OBELYSK TRANSPORT GP INC. By: /s/ John Bitove Name: John Bitove Title: President MAPLE BEACH COMPASS LP, by its general partner, OBELYSK US CORP. By: /s/ John Bitove Name: John Bitove Title: Authorized Signatory


 
[Signature Page to Note Purchase Agreement] PURCHASER: RELAY VENTURES FUND III L.P, by its general partner, RELAY VENTURES FUND III GP INC. By: /s/ Kevin Talbot Name: Kevin Talbot Title: Director By: /s/ Jeannette Wiltse Name: Jeannette Wiltse Title: Director RELAY VENTURES PARALLEL FUND III L.P., by its general partner, RELAY VENTURES FUND III GP INC. By: /s/ Kevin Talbot Name: Kevin Talbot Title: Director By: /s/ Jeannette Wiltse Name: Jeannette Wiltse Title: Director RELAY VENTURES COMPASS LP, by its general partner, RELAY VENTURES COMPASS GP INC. By: /s/ Kevin Talbot Name: Kevin Talbot Title: Director By: /s/ Jeannette Wiltse Name: Jeannette Wiltse Title: Director


 
[Signature Page to Note Purchase Agreement] COLLATERAL AGENT: U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION By: /s/ Brandon Bonfig Name: Brandon Bonfig Title: Vice President


 
US-DOCS\137446087.12 EXHIBIT A Description of Collateral Holder Issuer Class of Stock Stock Certificate No. No. of Shares Percentage of Total Owned Percentage of Issuer’s Stock Pledged Bird Global, Inc. Bird Rides, Inc. Common Stock N/A One 100% 100% Bird Global, Inc. 1393631 B.C. Unlimited Liability Company Common Shares C-1 One 100% 100%


 
US-DOCS\137446087.12 EXHIBIT B [FORM OF NOTE] THE OFFER AND SALE OF THE NOTES REPRESENTED HEREBY OR ANY SHARES OF CLASS A COMMON STOCK ISSUABLE UPON CONVERSION THEREOF HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND SUCH NOTES AND SHARES MAY NOT BE OFFERED, SOLD, PLEDGED, HEDGED, OR OTHERWISE TRANSFERRED, EXCEPT (X) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND A CURRENT PROSPECTUS, (Y) IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT, OR (Z) PURSUANT TO ANOTHER APPLICABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT. THE NOTES REPRESENTED HEREBY ARE GOVERNED BY THE PROVISIONS OF A NOTE PURCHASE AGREEMENT, DATED AS OF DECEMBER 30, 2022 (THE “AGREEMENT”), BY AND AMONG BIRD GLOBAL, INC., AS ISSUER, THE PURCHASERS NAMED THEREIN, AND U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, AS COLLATERAL AGENT. BY ACCEPTING ANY NOTE REPRESENTED HEREBY, THE HOLDER THEREOF WILL BE DEEMED TO AGREE TO BE BOUND BY THE TERMS OF THE AGREEMENT AS A PURCHASER. THE INDEBTEDNESS EVIDENCED BY THIS NOTE IS SUBJECT TO THE SUBORDINATION AND INTERCREDITOR AGREEMENT, DATED AS OF DECEMBER 30, 2022, 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, 1393631 B.C. UNLIMITED LIABILITY COMPANY, BIRD CANADA INC. AND BIRD RIDES INTERNATIONAL HOLDING, INC. [THIS NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR U.S. FEDERAL INCOME TAX PURPOSES. THE ISSUE PRICE, AMOUNT OF OID, ISSUE DATE, AND YIELD TO MATURITY WITH RESPECT TO THIS NOTE MAY BE OBTAINED BY WRITING TO THE ISSUER AT THE FOLLOWING ADDRESS: 392 NE 191ST STREET #20388, MIAMI, FLORIDA 33179; ATTENTION: CHIEF FINANCIAL OFFICER; EMAIL: BEN.LU@BIRD.CO.]


 
US-DOCS\137446087.12 Secured Promissory Note No. [ ] U.S. $[ ] Bird Global, Inc., a Delaware corporation (herein called the “Issuer”), which term includes any successor corporation under the Agreement referred to on the reverse hereof, for value received, hereby promises to pay to [___________], or registered assigns, the principal sum of [______________________________] UNITED STATES DOLLARS (U.S. $[_______________]) (which amount may from time to time be increased or decreased by adjustments made on the records of the Issuer in accordance with the Agreement) on December 30, 2027. The Issuer will pay all outstanding principal of any Note and accrued and unpaid interest thereon as provided in the Agreement. Reference is made to the further provisions of this Note set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place. Capitalized terms used but not defined herein shall have such meanings as are ascribed to such terms in the Agreement. In the case of any conflict between this Note and the Agreement, the provisions of the Agreement shall control. [Signature Page Follows]


 
US-DOCS\137446087.12 IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed. BIRD GLOBAL, INC. Dated: By: Name: Title:


 
US-DOCS\137446087.12 [FORM OF REVERSE OF NOTE] BIRD GLOBAL, INC. Secured Promissory Note This Note is one of a duly authorized issue of Notes of the Issuer, designated as its Secured Promissory Notes (the “Notes”), initially limited in aggregate principal amount to $57,077,674, all issued under and pursuant to a Note Purchase Agreement, dated as of December 30, 2022 (including all exhibits and schedules hereto, as the same may be amended, restated, supplemented, or otherwise modified from time to time, the “Agreement”), by and among the Issuer, the Purchasers named therein, and U.S. Bank Trust Company, National Association, as Collateral Agent, to which Agreement and all agreements supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties, and immunities thereunder of the Issuer and the Purchasers of the Notes. Except as provided for in the Agreement, the principal amount on this Note shall be payable, when and if due, only against surrender therefor, while payments of interest on this Note shall be made in accordance with the Agreement. 1. Interest. Interest will accrue on this Note at a rate of 12.0% per annum, payable as set forth in the Agreement. 2. Conversion. The Notes are convertible into shares of Common Stock and cash subject to the terms of the Agreement. 3. Redemption. The Notes will be subject to Redemption as provided in the Agreement. 4. Acceleration of Maturity. The Agreement contains provisions for acceleration of the maturity of the unpaid principal amount of this Note upon the happening of certain stated events upon the terms and conditions specified therein. 5. Denominations. The Notes are issuable only in registered form in minimum denominations of $1,000 and any integral multiple of $1.00 in excess thereof, as provided in the Agreement and subject to certain limitations therein set forth. 6. Transfer. This Note is assignable or transferable, in whole or in part, solely to the extent such assignment or transfer is permitted pursuant to the terms of the Agreement. THIS NOTE, AND ANY CLAIM, CONTROVERSY, OR DISPUTE ARISING UNDER OR RELATED TO THIS NOTE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 
US-DOCS\137446087.12 CONVERSION NOTICE If you want to convert all or any portion (which must be $1,000 or in integral multiples of $1.00 in excess thereof) of this Note, check the box: o and specify the principal amount to be so converted: $_____________________,000. Date: (Legal Name of Holder) By: Name: Title: Signature Guaranteed: Participant in a Recognized Signature Guarantee Medallion Program By: Authorized Signatory Note: Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Issuer or the transfer agent for the Common Stock, as applicable, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Issuer or the transfer agent for the Common Stock in addition to, or in substitution for, STAMP, all in accordance with the Exchange Act.


 
US-DOCS\137446087.12 EXHIBIT C Collateral Agent Terms 1. Appointment of Collateral Agent. (a) Each Purchaser hereby appoints U.S. Bank Trust Company, National Association (together with any successor Collateral Agent pursuant to Section 7 of this Exhibit C) as Collateral Agent under the Note Documents and authorizes the Collateral Agent to (i) take such action on its behalf and to exercise such rights, powers, and remedies and perform such duties as are expressly delegated to the Collateral Agent under the Note Documents and (ii) exercise such powers as are reasonably incidental thereto. Except for Section 8 and the first sentence of Section 7 of this Exhibit C, the provisions of this Exhibit C are solely for the benefit of the Collateral Agent and the Purchasers, and the Issuer shall not have rights as a third-party beneficiary of any of such provisions. (b) Without limiting the generality of clause (a) above, the Collateral Agent is hereby authorized to (i) hold security interests in the Collateral for the ratable benefit of the Purchasers and otherwise act as collateral agent for the Secured Parties for purposes of the perfection of all Liens created by the Note Documents and all other purposes stated therein, (ii) take, at the direction of the Required Purchasers, such action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Note Documents, and (iii) except as may be otherwise specified in any Note Document, exercise, at the direction of the Required Purchasers, all remedies given to the Collateral Agent and the Purchasers with respect to the Issuer and/or the Collateral, whether under the Note Documents, Applicable Law, or otherwise. The Collateral Agent may, upon any term or condition it specifies, perform any and all of its duties and exercise its rights and powers hereunder or under any other Note Document by or through any one or more sub-agents appointed by the Collateral Agent. The Collateral Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective directors, officers, employees, agents, trustees, representatives, attorneys, accountants, or other advisors or consultants (each, a “Related Party”). The exculpatory, indemnification, and other provisions of this Exhibit C shall apply to any such sub-agent and to the Related Parties of the Collateral Agent and any such sub-agent. The Collateral Agent shall not be responsible for the negligence or misconduct of any sub- agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Collateral Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. (c) Each Purchaser hereby irrevocably appoints, designates, authorizes, and directs the Collateral Agent to enter into the Intercreditor Agreement on its behalf and to take action on its behalf pursuant to the provisions thereof as directed by the Required Purchasers. Each Purchaser further agrees to be bound by the terms and conditions of the Intercreditor Agreement. (d) Under the Note Documents, the Collateral Agent (i) is acting solely on behalf of the Purchasers, with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Collateral Agent,” the terms “agent,” “Collateral Agent,” and “collateral agent” and similar terms in any Note Document to refer


 
US-DOCS\137446087.12 to the Collateral Agent, which terms are used for title purposes only, are not intended to connote any fiduciary or other implied (or express) obligations arising under any agency doctrine of any Applicable Law, and are intended to create or reflect only an administrative relationship between contracting parties, (ii) is not assuming any obligation under any Note Document other than as expressly set forth therein or any role as agent, fiduciary, or trustee of or for any Purchaser or any other Person, and (iii) shall have no implied functions, responsibilities, duties, obligations, or other liabilities under any Note Document, and each Purchaser, by accepting the benefits of the Note Documents, hereby waives and agrees not to assert any claim against the Collateral Agent based on the roles, duties, and legal relationships expressly disclaimed in clauses (i) through (iii) above. Except as expressly set forth in the Note Documents, the Collateral Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to the Issuer or any of its Subsidiaries that is communicated to or obtained by U.S. Bank Trust Company, National Association or any of its Affiliates in any capacity. 2. Binding Effect; Reliance on Instructions from Required Purchasers. (a) Each Purchaser, by accepting the benefits of the Note Documents, agrees that (i) any action taken by the Collateral Agent or the Required Purchasers (or, if expressly required in any Note Document, a greater proportion of the Purchasers) in accordance with the provisions of the Note Documents, (ii) any action taken by the Collateral Agent in reliance upon the instructions of the Required Purchasers (or, where so required, such greater proportion), and (iii) the exercise by the Collateral Agent or the Required Purchasers (or, where so required, such greater proportion) of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Purchasers. (b) If the Collateral Agent shall request instructions from the Required Purchasers or all affected Purchasers with respect to any act or action (including failure to act) in connection with any Note Document, then the Collateral Agent shall be entitled to refrain from such act or taking such action unless and until the Collateral Agent shall have received instructions from the Required Purchasers or all affected Purchasers, as the case may be, and the Collateral Agent shall not incur liability to any Person by reason of so refraining. The Collateral Agent shall be fully justified in failing or refusing to take any action under any Note Document (i) if such action would, in the opinion of the Collateral Agent, be contrary to any Applicable Law or any Note Document, (ii) if such action would, in the opinion of the Collateral Agent, expose the Collateral Agent to any potential liability under any Applicable Law, or (iii) if the Collateral Agent shall not first be indemnified to its satisfaction against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Purchaser shall have any right of action whatsoever against the Collateral Agent as a result of the Collateral Agent acting or refraining from acting under any Note Document in accordance with the instructions of the Required Purchasers or all affected Purchasers, as applicable. 3. Collateral Agent’s Reliance, Etc. The Collateral Agent may, without incurring any liability hereunder, (a) consult with any of its Related Parties and, whether or not selected by it, any other legal counsel, advisors, accountants, and other experts (including legal counsel and advisors to, and accountants and experts engaged by, the Issuer), and take or omit to take any


 
US-DOCS\137446087.12 action in accordance with the advice of any such legal counsel, advisors, accountants, and other experts, and (b) rely and act upon any document and information (including those transmitted by electronic transmission) and any telephone message or conversation or other oral statement, in each case, believed by it to be genuine and to have been transmitted, signed, or otherwise authenticated by the appropriate parties. None of the Collateral Agent or any of its Related Parties shall be liable for any action taken or omitted to be taken by any of them under or in connection with any Note Document, and each Purchaser and the Issuer hereby waives and shall not assert (and the Issuer shall cause its Subsidiaries to waive and agree not to assert) any right, claim, or cause of action based thereon, except to the extent of liabilities resulting from the gross negligence or willful misconduct of the Collateral Agent or, as the case may be, such Related Party (in each case, as determined in a final, non-appealable judgment of a court of competent jurisdiction) in connection with the duties of the Collateral Agent expressly set forth herein. Without limiting the foregoing, the Collateral Agent: (i) shall not be responsible or otherwise incur liability for any action or omission taken in reliance upon the instructions of the Required Purchasers or for the actions or omissions of any of its Related Parties, except to the extent that a court of competent jurisdiction determines in a final non-appealable judgment that the Collateral Agent acted with gross negligence or willful misconduct in the selection of such Related Party; (ii) shall not be responsible to any Purchaser or other Person for the due execution, legality, validity, enforceability, effectiveness, genuineness, sufficiency, or value of, or the attachment, perfection, or priority of any Lien created or purported to be created under or in connection with, any Note Document; (iii) makes no warranty or representation, and shall not be responsible, to any Purchaser or other Person for any statement, document, information, representation, or warranty made or furnished by or on behalf of the Issuer or any Related Party of the Issuer in connection with any Note Document or any transaction contemplated therein or any other document or information with respect to the Issuer, whether or not transmitted or (except for documents expressly required under any Note Document to be transmitted to the Purchasers) omitted to be transmitted by the Collateral Agent, including as to completeness, accuracy, scope, or adequacy thereof, or for the scope, nature, or results of any due diligence performed by the Collateral Agent in connection with the Note Documents; and (iv) shall not have any duty to ascertain or to inquire as to the performance or observance of any provision of any Note Document, whether any condition set forth in any Note Document is satisfied or waived, as to the financial condition of the Issuer or as to the existence or continuation or possible occurrence or continuation of any Event of Default, and shall not be deemed to have notice or knowledge of such occurrence or continuation unless it has received a notice from either the Issuer or the Required Purchasers describing such Event of Default that is clearly labeled “notice of default”; and, for each of the items set forth in clauses (i) through (iv) above, each Purchaser and the Issuer hereby waives and agrees not to assert, and the Issuer shall cause its Subsidiaries to waive and agree not to assert, any right, claim, or cause of action it might have against the Collateral Agent based thereon. 4. Collateral Agent Individually. The Collateral Agent and its Affiliates may make loans and other extensions of credit to, acquire stock and stock equivalents of, and engage in any kind of business with the Issuer as though it were not acting as the Collateral Agent and may receive separate fees and other payments therefor. To the extent the Collateral Agent or any of its Affiliates becomes a Purchaser hereunder, it shall have and may exercise the same rights and powers hereunder and shall be subject to the same obligations and liabilities as any other Purchaser, and the terms “Purchaser,” “Required Purchaser,” and any similar terms shall, except where otherwise expressly provided in any Note Document, include, without limitation, the Collateral


 
US-DOCS\137446087.12 Agent or such Affiliate, as the case may be, in its individual capacity as Purchaser, or as one of the Required Purchasers. 5. Purchaser Credit Decision. Each Purchaser acknowledges that it has, independently and without reliance upon the Collateral Agent, any other Purchaser, or any of their Affiliates or upon any document solely or in part because such document was transmitted by the Collateral Agent or any of its Related Parties, conducted its own independent investigation of the financial condition and affairs of the Issuer and has made and will continue to make its own credit decisions in connection with entering into, and taking or not taking any action under, any Note Document or with respect to any transaction contemplated in any Note Document, in each case, based on such documents and information as it shall deem appropriate. The Collateral Agent shall not have any duty or responsibility to provide any Purchaser with any credit or other information concerning the business, prospects, operations, financial and other condition, or creditworthiness of the Issuer that may come into the possession of the Collateral Agent or any of its Related Parties. 6. Indemnification. Each Purchaser agrees to reimburse the Collateral Agent and each of its Related Parties (to the extent not reimbursed by the Issuer as required under the Note Documents (including pursuant to Section 13.2 of the Agreement)) promptly upon demand for its pro rata share, based on the principal amount of the outstanding Notes held by each of the Purchasers at such time (its “Pro Rata Share”), of any out-of-pocket costs and expenses (including, without limitation, fees, charges, and disbursements of financial, legal, and other advisors and any taxes or insurance paid in the name of, or on behalf of, the Issuer) incurred by the Collateral Agent or any of its Related Parties in connection with the preparation, syndication, execution, delivery, administration, modification, amendment, consent, waiver, or enforcement of, or the taking of any other action (whether through negotiations, through any work-out, bankruptcy, restructuring, or other legal or other proceeding (including, without limitation, preparation for and/or response to any subpoena or request for document production relating thereto) or otherwise) in respect of, or legal advice with respect to, its rights or responsibilities under, any Note Document (such costs and expenses, collectively, “Collateral Agent Expenses”). Each Purchaser further agrees to indemnify the Collateral Agent and each of its Related Parties (to the extent not reimbursed by the Issuer as required under the Note Documents (including pursuant to Section 13.2 of the Agreement)), ratably according to its Pro Rata Share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including, without limitation, fees, charges, and disbursements of financial, legal, and other advisors), or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Collateral Agent or any of its Related Parties in any matter relating to or arising out of, in connection with, or as a result of any Note Document or any other act, event, or transaction related, contemplated in, or attendant to any such document, or, in each case, any action taken or omitted to be taken by the Collateral Agent or any of its Related Parties under or with respect to the foregoing; provided that no Purchaser shall be liable to the Collateral Agent or any of its Related Parties under this Section 6 of this Exhibit C to the extent such liability has resulted from the gross negligence or willful misconduct of the Collateral Agent or, as the case may be, such Related Party, in each case, as determined by a final non-appealable judgment of a court of competent jurisdiction. To the extent required by any Applicable Law, the Collateral Agent may withhold from any payment to any Purchaser under a Note Document an amount equal to any applicable withholding tax. The Collateral Agent may offset against any payment to any Purchaser under a Note Document any applicable withholding tax that was required to be withheld from any prior payment to such Purchaser but which was not so withheld, as well as any other


 
US-DOCS\137446087.12 amounts for which the Collateral Agent is entitled to indemnification from such Purchaser under the immediately preceding sentence of this Section 6 of this Exhibit C. 7. Successor Collateral Agent. The Collateral Agent may resign at any time by delivering notice of such resignation to the Purchasers and the Issuer, effective on the date set forth in such notice or, if no such date is set forth therein, upon the date such notice shall be effective, in accordance with the terms of this Section 7 of this Exhibit C. The Required Purchasers may deliver notice of removal to the Collateral Agent, effective on the date set forth in such notice or, if no such date is set forth therein, upon the date such notice shall be effective, in accordance with the terms of this Section 7 of this Exhibit C. Upon receipt of any such notice of resignation or removal, the Required Purchasers shall have the right to appoint a successor Collateral Agent. If, after 30 days after the date of the retiring Collateral Agent’s notice of resignation, no successor Collateral Agent has been appointed by the Required Purchasers and has accepted such appointment, then the retiring Collateral Agent may, on behalf of the Purchasers, appoint a successor Collateral Agent from among the Purchasers. If no such successor Collateral Agent shall have been appointed by the Required Purchasers and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Purchasers) (the “Resignation Effective Date”), then such resignation shall nonetheless become effective in accordance with such notice on the Resignation Effective Date. Effective immediately upon its resignation, (a) the retiring Collateral Agent shall be discharged from its duties and obligations under the Note Documents (except that in the case of any collateral security held by the Collateral Agent on behalf of the Purchasers under any of the Note Documents, the retiring Collateral Agent shall continue to hold such collateral security, as bailee, until such time as a successor Collateral Agent is appointed), (b) the Purchasers shall assume and perform all of the duties of the Collateral Agent until a successor Collateral Agent shall have accepted a valid appointment hereunder, (c) the retiring Collateral Agent and its Related Parties shall no longer have the benefit of any provision of any Note Document other than with respect to any actions taken or omitted to be taken while such retiring Collateral Agent was, or because such Collateral Agent had been, validly acting as Collateral Agent under the Note Documents, and (d) subject to its rights under Section 2(b) of this Exhibit C, the retiring Collateral Agent shall take such action as may be reasonably necessary to assign to the successor Collateral Agent its rights as Collateral Agent under the Note Documents. Effective immediately upon its acceptance of a valid appointment as Collateral Agent, a successor Collateral Agent shall succeed to, and become vested with, all the rights, powers, privileges, and duties of the retiring Collateral Agent under the Note Documents (other than any rights to indemnity payments owed to the retiring Collateral Agent). After the retiring Collateral Agent’s resignation or removal hereunder, the provisions of this Exhibit C and Article 12 and Section 13.2 of the Agreement shall continue in effect for the benefit of such retiring Collateral Agent, its sub- agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Collateral Agent was acting as Collateral Agent. 8. Release of Collateral. (a) Each Purchaser hereby consents to the release and hereby directs the Collateral Agent, at the sole cost and expense of the Issuer, to release (or in the case of clause (ii) below, release or subordinate) the following: (i) any Guarantor if all of the stock of such Subsidiary owned directly or indirectly by the Issuer is sold or transferred in a transaction permitted under the Note Documents (including pursuant to a valid waiver or consent), to the extent


 
US-DOCS\137446087.12 that, after giving effect to such transaction, such Subsidiary would not be required to guaranty any Obligations pursuant to any Note Document; and (ii) any Lien held by the Collateral Agent for the benefit of the Secured Parties against any Collateral that is sold or otherwise disposed of by Issuer in a transaction permitted by the Note Documents (including pursuant to a valid waiver or consent); provided that the Issuer shall have provided to the Collateral Agent a certificate stating that such transaction is permitted under the Note Documents (and each Purchaser hereby authorizes and directs the Collateral Agent to conclusively rely on such certificate in performing its obligations under this clause (a)). (b) Upon request by the Collateral Agent at any time, the Required Purchasers will promptly confirm in writing (which shall not be unreasonably delayed) the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guarantee pursuant to this Section 8. 9. Exculpatory Provisions. (a) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Agreement, including this Exhibit C, and in the other Note Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Collateral Agent shall not: (i) be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing; (ii) have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Agreement, including this Exhibit C, or by the other Note Documents that the Collateral Agent is required to exercise as directed in writing by the Required Purchasers (or such other number or percentage of the Purchasers as shall be expressly provided for in this Agreement or in the other Note Documents), and in all cases the Collateral Agent shall be fully justified in failing or refusing to act hereunder or under any other Note Documents unless it shall (a) receive written instructions from the Required Purchasers (or such other number or percentage of the Purchasers as shall be expressly provided for herein or in the other Note Documents) specifying the action to be taken and (b) be indemnified to its satisfaction by the Purchasers against any and all liability and expenses that may be incurred by it by reason of taking or continuing to take any such action; provided that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose it to liability or that is contrary to any applicable Note Document or Applicable Law; (iii) except as expressly set forth herein and in the other applicable Note Documents, (x) have any duty to disclose or (y) be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the Collateral Agent or any of its Affiliates in any capacity; or (iv) be liable for any apportionment or distribution of payments made


 
US-DOCS\137446087.12 by it in good faith and, if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Purchaser to whom payment was due but not made shall be to recover from other Purchasers any payment in excess of the amount to which they are determined to be entitled (and such other Purchasers hereby agree to return to such Purchaser any such erroneous payments received by them). (b) The Collateral Agent shall not be liable for any action taken or not taken by it: (i) with the consent of, or at the request of, the Required Purchasers (or such other number or percentage of the Purchasers as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances, as provided for herein or in the other Note Documents); provided that no action, or any omission to act, taken by the Collateral Agent at the direction of the Required Purchasers (or such other number or percentage of the Purchasers as shall be expressly provided for herein or in the other Note Documents) shall constitute gross negligence or willful misconduct, including, without limitation, Section 6 of this Exhibit C; or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment. The Collateral Agent shall be entitled to request written instructions, or clarification of any instruction or request, from the Required Purchasers (or, if the relevant Note Document stipulates the matter is a decision for any other Purchaser or group of Purchasers, from that Purchaser or group of Purchasers) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority, or discretion, and the Collateral Agent may without any liability hereunder or under any other Note Document refrain from acting unless and until it receives those written instructions or that clarification. In the absence of such written instructions, the Collateral Agent may act (or refrain from acting) as it considers to be in the best interests of the Purchasers. The instructions as aforesaid and any action taken or failure to act pursuant thereto by the Collateral Agent shall be binding on all of the Purchasers. (c) The Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty, or representation made in or in connection with the Agreement or any other Note Document, (ii) the contents of any certificate, report, or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements, or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness, or genuineness of this Agreement, any other Note Document or any other agreement, instrument, or document, (v) the satisfaction of any condition set forth herein, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent, (vi) the existence, value, perfection, or priority of any collateral security or the financial or other condition of the Issuer, any Guarantor, or any other obligor or guarantor, or (vii) any failure by the Issuer or Guarantor or any other Person (other than itself) to perform any of its obligations hereunder or under any other Note Document or the performance or observance of any covenants, agreements, or other terms or conditions set forth herein or therein. (d) The Collateral Agent shall not be obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations, or


 
US-DOCS\137446087.12 responsibilities or the exercise of any right, power, authority, or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it. (e) The Collateral Agent shall not be responsible for any unsuitability, inadequacy, expiration, or unfitness of any security interest created hereunder or pursuant to any other Note Document,, nor shall it be obligated to make any investigation into, and shall be entitled to assume, the adequacy and fitness of any security interest created hereunder or pursuant to any other Note Document. (f) The Collateral Agent shall not be responsible or liable for any failure or delay in the performance of its obligations hereunder or any other Note Document arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, epidemics, pandemics, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss, or malfunctions of utilities, communications, or computer (software and hardware) services or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility. (g) The Collateral Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value, or collectability of the Collateral, the existence, priority, or perfection of the Collateral Agent’s Liens thereon, or any certificate prepared by any party in connection therewith, nor shall the Collateral Agent have any duty to, and shall not be responsible or liable to the Purchasers for any failure to, monitor, maintain, or preserve any portion of the Collateral, any security interests of the Collateral Agent therein, or any filings, registrations, or recordings made with respect thereto. The Collateral Agent shall not have any obligation whatsoever to any Purchaser or any other person to investigate, confirm, or assure that the Collateral exists or is owned by the Issuer or is insured or has been encumbered, or that the liens and security interests granted to the Collateral Agent pursuant hereto or any of the other Note Documents or otherwise have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority.


 
US-DOCS\137446087.12 EXHIBIT D Taxes; Increased Costs 1. Defined Terms. For purposes of this Exhibit D: (a) “Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise taxes or branch profits taxes. (b) “Excluded Taxes” means any of the following taxes imposed on or with respect to a Purchaser or required to be withheld or deducted from a payment to a Purchaser, (i) taxes imposed on or measured by net income (however denominated), franchise taxes, and branch profits taxes, in each case, (A) imposed as a result of such Purchaser being organized under the laws of, or having its principal office or, in the case of any Purchaser, its applicable lending office located in, the jurisdiction imposing such tax (or any political subdivision thereof) or (B) that are Other Connection Taxes, (ii) in the case of a Purchaser, U.S. federal withholding taxes imposed on amounts payable to or for the account of such Purchaser with respect to an applicable interest in a Note pursuant to a law in effect on the date on which (A) such Purchaser acquires such interest in the Note or (B) such Purchaser changes its lending office, except in each case to the extent that, pursuant to Section 2 or Section 4 of this Exhibit D, amounts with respect to such taxes were payable either to such Purchaser’s assignor immediately before such Purchaser became a party hereto or to such Purchaser immediately before it changed its lending office, (iii) taxes attributable to such Purchaser’s failure to comply with Section 6 of this Exhibit D and (iv) any taxes imposed under FATCA. (c) “FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any applicable fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Internal Revenue Code. (d) “Foreign Purchaser” means a Purchaser that is not a U.S. Person. (e) “Indemnified Taxes” means (i) taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Issuer under any Note Document and (ii) to the extent not otherwise described in clause (i), Other Taxes. (f) “Other Connection Taxes” means, with respect to any Purchaser, taxes imposed as a result of a present or former connection between such Purchaser and the jurisdiction imposing such tax (other than connections arising from such Purchaser having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Note Document, or sold or assigned an interest in any Note or other Note Document).


 
US-DOCS\137446087.12 (g) “Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Note Document, except any such taxes that are Other Connection Taxes imposed with respect to an assignment. (h) “U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Internal Revenue Code. (i) “Withholding Agent” means the Issuer and the Collateral Agent, as applicable. (j) The term “applicable law” includes FATCA, and the term “Note Document” does not include the Voting Agreement or the Share Purchase Agreement. 2. Payments Free of Taxes. Any and all payments by or on account of any obligation of the Issuer under any Note Document shall be made without deduction or withholding for any taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such tax is an Indemnified Tax, then the sum payable by the Issuer shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2 or Section 4 of this Exhibit D) the applicable Purchaser receives an amount equal to the sum it would have received had no such deduction or withholding of Indemnified Taxes been made. 3. Payment of Other Taxes by Issuer. The Issuer shall timely pay to the relevant Governmental Authority in accordance with applicable law any Other Taxes. 4. Indemnification by Issuer. The Issuer shall indemnify each Purchaser for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under Section 2 or this Section 4 of this Exhibit D) payable or paid by such Purchaser or required to be withheld or deducted from a payment to such Purchaser and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Issuer by a Purchaser shall be conclusive absent manifest error. 5. Evidence of Payments. As soon as commercially practicable after any payment of taxes by the Issuer to a Governmental Authority pursuant to the provisions of this Exhibit D, the Issuer shall deliver to the applicable Purchaser the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to such Purchaser.


 
US-DOCS\137446087.12 6. Status of Purchasers. (a) Any Purchaser that is entitled to an exemption from or reduction of withholding tax with respect to payments made under any Note Document shall deliver to the Issuer, at the time or times reasonably requested by the Issuer, such properly completed and executed documentation reasonably requested by the Issuer as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Purchaser, if reasonably requested by the Issuer, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Issuer as will enable the Issuer to determine whether or not such Purchaser is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 6(b)(i), 6(b)(ii) and 6(b)(iv) of this Exhibit D) shall not be required if in the Purchaser’s reasonable judgment such completion, execution or submission would subject such Purchaser to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Purchaser. (b) Without limiting the generality of the foregoing, in the event that Issuer is a U.S. Person, (i) any Purchaser that is a U.S. Person shall deliver to the Issuer on or prior to the date on which such Purchaser becomes a Purchaser under this Agreement (and from time to time thereafter upon the reasonable request of the Issuer), executed copies of IRS Form W-9 certifying that such Purchaser is exempt from U.S. federal backup withholding tax; (ii) any Foreign Purchaser shall, to the extent it is legally entitled to do so, deliver to the Issuer (in such number of copies as shall be requested by the Issuer) on or prior to the date on which such Foreign Purchaser becomes a Purchaser under this Agreement (and from time to time thereafter upon the reasonable request of the Issuer), whichever of the following is applicable: A. in the case of a Foreign Purchaser claiming the benefits of an income tax treaty to which the United States is a party, executed copies of IRS Form W-8BEN or IRS Form W- 8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding tax pursuant to the applicable article(s) of such tax treaty; B. executed copies of IRS Form W-8ECI; C. in the case of a Foreign Purchaser claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate in form and substance reasonably acceptable to the Issuer, to the effect that such Foreign Purchaser is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Issuer within the


 
US-DOCS\137446087.12 meaning of Section 871(h)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” related to the Issuer as described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W- 8BEN-E; or D. to the extent a Foreign Purchaser is not the beneficial owner, executed copies of IRS Form W- 8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W- 8BEN-E, a U.S. Tax Compliance Certificate in form and substance reasonably acceptable to the Issuer, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Purchaser is a partnership and one or more direct or indirect partners of such Foreign Purchaser are claiming the portfolio interest exemption, such Foreign Purchaser may provide a U.S. Tax Compliance Certificate in form and substance reasonably acceptable to the Issuer on behalf of each such direct and indirect partner; (iii) any Foreign Purchaser shall, to the extent it is legally entitled to do so, deliver to the Issuer (in such number of copies as shall be requested by the Issuer) on or prior to the date on which such Foreign Purchaser becomes a Purchaser under this Agreement (and from time to time thereafter upon the reasonable request of the Issuer), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Issuer to determine the withholding or deduction required to be made; and (iv) if a payment made to a Purchaser under any Note Document would be subject to U.S. federal withholding tax imposed by FATCA if such Purchaser were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Purchaser shall deliver to the Issuer at the time or times prescribed by law and at such time or times reasonably requested by the Issuer such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Issuer as may be necessary for the Issuer to comply with its obligations under FATCA and to determine that such Purchaser has complied with such Purchaser’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (iv), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. (c) Each Purchaser agrees that if any form or certification it previously delivered to the Issuer expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Issuer in writing of its legal inability to do so.


 
US-DOCS\137446087.12 7. Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any taxes as to which it has been indemnified pursuant to the provisions of this Exhibit D (including by the payment of additional amounts pursuant to the provisions of this Exhibit D), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under the provisions of this Exhibit D with respect to the taxes giving rise to such refund), net of all out- of-pocket expenses (including taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 7 (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 7, in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 7 the payment of which would place the indemnified party in a less favorable net after-tax position than the indemnified party would have been in if the tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such tax had never been paid. This Section 7 shall not be construed to require any indemnified party to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the indemnifying party or any other Person. 8. Survival. Each party’s obligations under the provisions of this Exhibit D shall survive the resignation or replacement of the Collateral Agent or any assignment of rights by, or the replacement of, a Purchaser and the repayment, satisfaction or discharge of all obligations under any Note Document.


 

Execution Version 1 US-DOCS\137586123.7 THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT OR AGREEMENT IS SUBJECT TO THE SUBORDINATION AND INTERCREDITOR AGREEMENT, DATED AS OF DECEMBER 30, 2022, 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., 1393631 B.C. UNLIMITED LIABILITY COMPANY, AND BIRD CANADA INC. GUARANTEE This GUARANTEE (the “Guarantee”), dated as of December 30, 2022, made by Bird US Holdco, LLC (the “Guarantor”), is in favor of U.S. Bank Trust Company, National Association, as Collateral Agent (the “Collateral Agent”), and the Purchasers (the “Purchasers” and collectively with the Collateral Agent, the “Beneficiaries”) under the Note Purchase Agreement (as defined below). RECITALS 1. Bird Global, Inc., a Delaware corporation (the “Issuer”), and the Beneficiaries have entered into the Note Purchase Agreement dated as of December 30, 2022 (as amended, supplemented, or modified from time to time, the “Note Purchase Agreement”). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Note Purchase Agreement. 2. Prior to the Beneficiaries extending any credit to the Issuer under the Note Purchase Agreement, the Issuer is required to provide the Beneficiaries with a guarantee duly executed by the Guarantor, and this Guarantee is being delivered in satisfaction of such requirement. 3. The Guarantor, a wholly-owned Subsidiary of the Issuer, derives substantial direct and indirect benefits from the extensions of credit contemplated by the Note Purchase Agreement. GUARANTEE As an inducement to the Beneficiaries to enter into the Note Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Guarantor agrees as follows: 1. Guarantee. The Guarantor hereby unconditionally and irrevocably guarantees (as primary obligor and not merely as surety) to the Beneficiaries and their successors and permitted assigns the punctual and complete payment of all amounts due and payable and performance of all other Obligations (now or hereafter arising, by acceleration or otherwise) by the Issuer and the other Note Parties under the Note Purchase Agreement and the other Note Documents (the “Guaranteed Obligations”) without regard to any defense of any kind which the Guarantor may have or assert, and without abatement, suspension, deferment, or diminution of any event or condition whatsoever, provided, that, notwithstanding anything to the contrary hereunder, the Guaranteed Obligations of the Guarantor shall be limited to an aggregate amount equal to the largest amount that would not render this Guarantee subject to avoidance under Section 548 of the Bankruptcy Code or any comparable provisions of applicable law.


 
2 US-DOCS\137586123.7 2. Guarantee Absolute and Unconditional. The Guarantor hereby agrees that its obligations shall be absolute, irrevocable, and unconditional and, without limiting the generality of the foregoing, shall not be released, discharged, or otherwise affected by: (a) any failure or delay to enforce the provisions of the Note Purchase Agreement or the other Note Documents; (b) the perfection, release or extent of any Collateral or Guarantor Collateral or any failure to realize on any Collateral or Guarantor Collateral; (c) any waiver, modification or consent to departure from, or amendment of the Note Purchase Agreement or other Note Documents; (d) the invalidity, illegality or unenforceability of the Note Purchase Agreement or the Guaranteed Obligations; (e) any change in the corporate existence, structure, or ownership of the Issuer or the other Note Parties; or (f) any other circumstances (other than payment or conversion in full of the Obligations or the Guaranteed Obligations) which may otherwise constitute a legal or equitable discharge of a surety or guarantor. This Guarantee constitutes a guarantee of payment when due and not of collection. The Beneficiaries have no duty or responsibility whatsoever to the Guarantor and make no representation or warranty in respect of the management and maintenance of the Guaranteed Obligations or any collateral therefor. 3. Waiver by Guarantor. The Guarantor agrees that the Beneficiaries may at any time and from time to time, either before or after the maturity thereof, without notice to or further consent of the Guarantor, extend the time of payment of, exchange or surrender any collateral for, or renew any of the Guaranteed Obligations, and may also make any agreement with the Issuer for the extension, renewal, payment, compromise, discharge, or release thereof, in whole or in part, for any modification of the terms thereof or of any agreement between any of the Beneficiaries and the Issuer without in any way impairing or affecting this Guarantee. The Guarantor hereby waives notice of acceptance of this Guarantee, diligence, acceleration, presentment, notice of default or demand of payment to or upon the Issuer or the Guarantor, filing of claims with a court in the event of merger or bankruptcy of the Issuer, any right or requirement to proceed first against the Issuer, any protest or notice with respect to the Note Purchase Agreement or the obligations created or evidenced thereby and all demands whatsoever, any exchange, sale or surrender of, or realization on, any other guarantee or any collateral, and any and all other notices and surety defenses (other than payment in full) whatsoever. The Beneficiaries shall not be obligated to file any claim relating to the Guaranteed Obligations in the event that Issuer becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Beneficiaries to so file shall not affect the Guarantor’s obligations hereunder. 4. Reinstatement in Certain Instances. The Guarantor further agrees that if any payment or delivery of any of the Guaranteed Obligations is subsequently rescinded or is


 
3 US-DOCS\137586123.7 subsequently recovered from or repaid by the recipient thereof, in whole or in part, in any bankruptcy, reorganization, insolvency or similar proceedings instituted by or against the Issuer, or otherwise, the Guarantor’s obligations hereunder with respect to such Guaranteed Obligation shall be reinstated at such time to the same extent as though the payment or delivery so recovered or repaid had not been originally made. 5. Security Interest. (a) As security for the performance by the Guarantor of all the terms, covenants and agreements on the part of the Guarantor to be performed under this Guarantee and any other Note Document, including all Guaranteed Obligations, the Guarantor hereby grants to the Collateral Agent for its benefit and the ratable benefit of the other Secured Parties, a continuing security interest in, all of the Guarantor’s right, title and interest in, to and under all of the following, whether now or hereafter owned, existing or arising (collectively, the “Guarantor Collateral”): (i) all Equity Interests of Bird US Opco, LLC, (ii) all other personal and fixture property or assets of the Guarantor of every kind and nature including, without limitation, all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts, chattel paper (whether tangible or electronic), deposit accounts, securities accounts, securities entitlements, letter-of-credit rights, commercial tort claims, securities and all other investment property, supporting obligations, money, any other contract rights or rights to the payment of money, insurance claims and proceeds, and all general intangibles (including all payment intangibles) (each as defined in the UCC), and (iii) all proceeds of, and all amounts received or receivable under any or all of, the foregoing. The Collateral Agent (for the benefit of the Secured Parties) shall have, with respect to all the Guarantor Collateral, and in addition to all the other rights and remedies available to the Collateral Agent (for the benefit of the Secured Parties), all the rights and remedies of a secured party under any applicable UCC. The Guarantor hereby authorizes the Collateral Agent (at the direction of the Required Purchasers) to file financing statements describing the collateral covered thereby as “all of the debtor’s personal property or assets” or words to that effect, notwithstanding that such wording may be broader in scope than the collateral described in this Guarantee. (b) The Guarantor hereby authorizes the Collateral Agent (at the direction of the Required Purchasers) to perfect the Collateral Agent’s security interest in the Guarantor Collateral by filing or authorizing the filing of, at the expense of the Guarantor, UCC-1 financing statements (including fixture filings) naming the Collateral Agent as secured party and describing the Guarantor Collateral in a manner that the Required Purchasers reasonably determine is necessary or advisable to perfect the security interest granted hereunder.


 
4 US-DOCS\137586123.7 (c) At any time or from time to time upon the request of the Collateral Agent (at the direction of the Required Purchasers), the Guarantor will, at its expense, promptly execute, acknowledge, and deliver such further documents and do such other acts and things as the Required Purchasers reasonably determine is necessary or advisable to perfect the security interest granted hereunder. (d) Upon the Obligations becoming immediately due and payable, the Collateral Agent and the other Secured Parties shall have, in addition to the rights and remedies which they may have under this Guarantee and the other Note Documents, all other rights and remedies provided after default under the UCC and under other Applicable Law, which rights and remedies shall be cumulative. Any proceeds from liquidation of the Guarantor Collateral shall be applied pursuant to the Intercreditor Agreement. (e) Upon payment or conversion in full of the Obligations (other than inchoate indemnity obligations), the Guarantor Collateral shall be automatically released from the lien created hereby, and this Guarantee and all obligations (other than those expressly stated to survive such termination) of the Guarantor shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Guarantor Collateral shall revert to the Guarantor. Upon any sale or other transfer of any Guarantor Collateral in a transaction permitted under and in accordance with the terms of the Note Purchase Agreement, or upon the effectiveness of any written consent of the Collateral Agent to the release of the Liens granted hereby on any Guarantor Collateral, the Collateral Agent’s Lien on such Guarantor Collateral shall be automatically released, and all rights therein shall revert to the Guarantor. Promptly following written request therefor by the Guarantor delivered to the Collateral Agent following any such termination or release, and at the expense of the Guarantor, the Collateral Agent shall execute and deliver to, and authorize the filing by, the Guarantor all financing statement amendments or termination statements and such other documents as the Guarantor shall reasonably request to evidence such termination or release and the Collateral Agent shall promptly deliver to the Guarantor all applicable Guarantor Collateral in its possession. 6. Representations and Warranties. The Guarantor hereby represents and warrants to the Beneficiaries that: (a) The Guarantor (i) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has full power and authority to own its properties and assets and to carry on its business as now being conducted and as presently contemplated, and (iii) has full power and authority to execute, deliver and perform its obligations under this Guarantee. (b) The execution, delivery and performance by the Guarantor of its obligations under this Guarantee will not (i) violate or conflict with (x) any provision of law, order, judgment, or decree of any court or other agency or government, (y) any provision of its constitutional documents, or (z) any agreement or other instrument to which the Guarantor is a party or is bound; (ii) result in a breach of, or constitute (with due notice or lapse of time or both) a default under any contractual provision to which it is bound; or (iii) result in the creation or imposition of any lien, charge or encumbrance of any


 
5 US-DOCS\137586123.7 nature whatsoever upon any of the property or assets of the Guarantor pursuant to any indenture, agreement or instrument (other than pursuant to this Guarantee), except in the case of each of the foregoing clauses (i) through (iii) to the extent that any such conflict, breach, default, lien, charge, encumbrance, or violation as applicable, could not reasonably be expected to have a Material Adverse Effect. (c) Except where the failure to obtain or make such consent, approval or authorization could not reasonably be expected to have a Material Adverse Effect, all consents, approvals, or authorizations from any Governmental Authority that are required to be obtained in connection with or as a condition to the execution, delivery or performance of this Guarantee have been obtained or made and are in full force and effect. (d) The Guarantor is Solvent. (e) The Guarantor is not contemplating either a filing of a petition under any state or federal bankruptcy law, or the liquidating of all or a major portion of its property; and the Guarantor has no knowledge of any person contemplating the filing of such petition against it. (f) Perfection Representations. (i) This Guarantee creates a valid and continuing security interest (as defined in the applicable UCC) in the Guarantor’s right, title and interest in, to and under the Guarantor Collateral which (A) security interest has been perfected and is enforceable against the Guarantor and (B) will be free of all Adverse Claims in such Guarantor Collateral, except for Permitted Liens. (ii) The Guarantor owns and has good and marketable title to the Guarantor Collateral free and clear of any Lien of any Person other than Liens permitted to exist under the Note Purchase Agreement. (iii) All appropriate financing statements, financing statement amendments and continuation statements have been delivered to the proper filing office in the appropriate jurisdictions under Applicable Law in order to perfect (and continue the perfection of) the grant by the Guarantor of a security interest in the Guarantor Collateral to the Collateral Agent pursuant to this Guarantee. (iv) Other than the security interest granted to the Collateral Agent pursuant to this Guarantee, the Guarantor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Guarantor Collateral except as permitted by the Note Documents. The Guarantor has not authorized the filing of and, except as otherwise notified to the Collateral Agent in writing, is not aware of any financing statements filed against the Guarantor that include a description of collateral covering the Guarantor Collateral other than any financing statement (i) in favor of the Collateral Agent, (ii) evidencing a Permitted Lien, or (iii) that has been terminated. The Guarantor is not aware of any judgment lien, ERISA lien or tax lien filings against the Guarantor that are not permitted by this Guarantee and the other Note Documents.


 
6 US-DOCS\137586123.7 (v) Notwithstanding any other provision of this Guarantee or any other Note Document, the representations contained in this Section 6(f) shall be continuing and remain in full force and effect until payment or conversion in full of the Obligations (other than inchoate indemnity obligations). 7. Subrogation. The Guarantor shall be subrogated to all rights of the Beneficiaries against the Issuer in respect of any amounts paid or deliveries made by the Guarantor pursuant to the provisions of this Guarantee, provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until payment in full of all of the Guaranteed Obligations. 8. Expenses of Enforcement. The Guarantor further agrees to pay all reasonable and documented out-of-pocket costs and expenses, including reasonable attorneys’ fees, which are incurred by any of the Beneficiaries in any effort to collect or enforce any provision of this Guarantee. 9. Set-Off. Upon the Guaranteed Obligations becoming due and payable (by acceleration or otherwise) under the Note Purchase Agreement or any other applicable Note Document, each Beneficiary is hereby authorized to setoff, appropriate and apply (without presentment, demand, protest or other notice which are hereby expressly waived) any deposits and any other indebtedness held or owing by such Beneficiary (including by any branches or agencies of such Beneficiary) to, or for the account of, the Guarantor against amounts owing by the Guarantor hereunder (even if contingent or unmatured); provided, that such Beneficiary shall notify the Guarantor promptly following such setoff. 10. Incorporation by Reference. The provisions of Sections 10.8 and 13.14 and Exhibit D of the Note Purchase Agreement are incorporated herein by reference mutatis mutandis, as if fully set forth herein, with each reference to “Issuer” being deemed to be a reference to the Guarantor. 11. Governing Law; Submission to Jurisdiction. THIS GUARANTEE AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL MATTERS ARISING OUT OF OR RELATING IN ANY WAY TO THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICTS OF LAW PROVISIONS THEREOF, EXCEPT TO THE EXTENT THAT THE PERFECTION, THE EFFECT OF PERFECTION OR PRIORITY OF THE INTERESTS OF COLLATERAL AGENT OR ANY PURCHASER IN THE COLLATERAL IS GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK). With respect to any suit, action or proceedings relating to this Guarantee (“Proceedings”), the Guarantor irrevocably: (a) submits to the exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City and irrevocably agrees to designate any Proceedings brought in the courts of the State of New York as “commercial” on the Request for Judicial Intervention seeking assignment to the Commercial Division of the Supreme Court; and (b) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought


 
7 US-DOCS\137586123.7 in an inconvenient forum and further waives the right to object, with respect to such Proceedings that such court does not have any jurisdiction over the Guarantor. Nothing in this Guarantee precludes the Beneficiaries from bringing Proceedings in any other jurisdiction in order to enforce any judgment obtained in any Proceedings referred to in the preceding sentence. 12. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS GUARANTEE OR ANY OTHER NOTE DOCUMENT. 13. Successor and Assigns. This Guarantee shall continue in full force and effect and be binding upon the Guarantor and the successors and permitted assigns of the Guarantor, provided, however, that the Guarantor may not assign or otherwise transfer this Guarantee or any obligations hereunder without the prior written consent of the Required Purchasers and any such assignment or transfer without such consent shall be void. The Beneficiaries may, concurrently with any assignment of their rights and obligations in accordance with the Note Purchase Agreement, assign this Guarantee or any rights or powers hereunder, with any or all of the underlying liabilities or obligations, the payment of which is guaranteed hereunder, in each case, subject to and in accordance with the terms and conditions of the Note Purchase Agreement. 14. Entire Agreement; Amendments and Waivers. This Guarantee supersedes any prior negotiations, discussions, or communications between the Beneficiaries and the Guarantor and constitutes the entire agreement between the Beneficiaries and the Guarantor with respect to the Note Purchase Agreement and this Guarantee. No provision of this Guarantee may be amended, modified, or waived without the prior written consent of the Required Purchasers. 15. Notices. All notices or other communications to the Guarantor and the Beneficiaries shall be delivered pursuant to the requirements set forth in Section 10 of the Note Purchase Agreement (the Guarantor’s address and email address for notices and other communications shall be the same as that of the Issuer). 16. Intercreditor Agreement. Notwithstanding anything herein to the contrary, the Guaranteed Obligations, pursuant to this Guarantee and the exercise of any right or remedy by the Collateral Agent and the other Secured Parties hereunder are subject to the provisions of the Intercreditor Agreement. In the event of any conflict or inconsistency between the provisions of the Intercreditor Agreement and this Guarantee, the provisions of the Intercreditor Agreement shall govern and control. [SIGNATURE PAGE FOLLOWS]


 
[Signature Page to Guarantee] IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be executed by one of its duly authorized representatives or officers. BIRD US HOLDCO, LLC By: /s/ Shane Torchiana Name: Shane Torchiana Title: Chief Executive Officer


 
[Signature Page to Guarantee] U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION By: /s/ Brandon Bonfig Name: Brandon Bonfig Title: Vice President


 

Execution Version 1 US-DOCS\137631201.6 THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT OR AGREEMENT IS SUBJECT TO THE SUBORDINATION AND INTERCREDITOR AGREEMENT, DATED AS OF DECEMBER 30, 2022, 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., 1393631 B.C. UNLIMITED LIABILITY COMPANY, AND BIRD CANADA INC. GUARANTEE This GUARANTEE (the “Guarantee”), dated as of December 30, 2022, made by Bird Rides International Holding, Inc. (the “Guarantor”), is in favor of U.S. Bank Trust Company, National Association, as Collateral Agent (the “Collateral Agent”), and the Purchasers (the “Purchasers” and collectively with the Collateral Agent, the “Beneficiaries”) under the Note Purchase Agreement (as defined below). RECITALS 1. Bird Global, Inc., a Delaware corporation, (the “Issuer”), and the Beneficiaries have entered into the Note Purchase Agreement dated as of December 30, 2022 (as amended, supplemented, or modified from time to time, the “Note Purchase Agreement”). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Note Purchase Agreement. 2. Prior to the Beneficiaries extending any credit to the Issuer under the Note Purchase Agreement, the Issuer is required to provide the Beneficiaries with a guarantee duly executed by the Guarantor, and this Guarantee is being delivered in satisfaction of such requirement. 3. The Guarantor, a wholly-owned Subsidiary of the Issuer, derives substantial direct and indirect benefits from the extensions of credit contemplated by the Note Purchase Agreement. GUARANTEE As an inducement to the Beneficiaries to enter into the Note Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Guarantor agrees as follows: 1. Guarantee. The Guarantor hereby unconditionally and irrevocably guarantees (as primary obligor and not merely as surety) to the Beneficiaries and their successors and permitted assigns the punctual and complete payment of all amounts due and payable and performance of all other Obligations (now or hereafter arising, by acceleration or otherwise) by the Issuer and the other Note Parties under the Note Purchase Agreement and the other Note Documents (the “Guaranteed Obligations”) without regard to any defense of any kind which the Guarantor may have or assert, and without abatement, suspension, deferment or diminution of any event or condition whatsoever, provided, that, notwithstanding anything to the contrary hereunder, the Guaranteed Obligations of the Guarantor shall be limited to an aggregate amount equal to the largest amount that would not render this Guarantee subject to avoidance under Section 548 of the Bankruptcy Code or any comparable provisions of applicable law.


 
2 US-DOCS\137631201.6 2. Indemnity. If any or all of the Guaranteed Obligations are not paid or performed by the Issuer and are not paid or performed by the Guarantor under Section 1 for any reason whatsoever, the Guarantor will, as a separate and distinct obligation, indemnify and save harmless the Beneficiaries from and against all losses, costs and expenses suffered or incurred by them arising from, or in connection with, or as a result of (a) any of the provisions of the Note Purchase Agreement or any of the Note Documents being or becoming void, voidable, unenforceable or invalid, or (b) the failure of the Issuer to fully and promptly pay or perform any of the Guaranteed Obligations. 3. Primary Obligations. If any or all of the Guaranteed Obligations are not paid or performed by the Issuer and are not paid or performed by the Guarantor under Section 1 or the Beneficiaries are not indemnified under Section 2, in each case, for any reason whatsoever, such Guaranteed Obligations will, as a separate and distinct obligation, be paid and performed by the Guarantor as primary obligor immediately upon written demand to the Guarantor by the Beneficiaries for such payment or performance. 4. Guarantee Absolute and Unconditional. The Guarantor hereby agrees that its obligations shall be absolute, irrevocable, and unconditional and, without limiting the generality of the foregoing, shall not be released, discharged, or otherwise affected by: (a) any failure or delay to enforce the provisions of the Note Purchase Agreement or the other Note Documents; (b) the perfection, release or extent of any Collateral or Guarantor Collateral or any failure to realize on any Collateral or Guarantor Collateral; (c) any waiver, modification, or consent to departure from, or amendment of the Note Purchase Agreement or other Note Documents; (d) the invalidity, illegality, or unenforceability of the Note Purchase Agreement or the Guaranteed Obligations or other Note Documents; (e) any change in the corporate existence, structure, or ownership of the Issuer or the other Note Parties; or (f) any other circumstances (other than payment or conversion in full of the Obligations or the Guaranteed Obligations) which may otherwise constitute a legal or equitable discharge of a surety or guarantor. This Guarantee constitutes a guarantee of payment when due and not of collection. The Beneficiaries have no duty or responsibility whatsoever to the Guarantor and make no representation or warranty in respect of the management and maintenance of the Guaranteed Obligations or any collateral therefor. 5. Parallel Debt. For the purpose of taking and ensuring the continuing validity and enforceability of the security created under the EMEA Dutch Pledge, the Guarantor hereby agrees and covenants with the Collateral Agent that it shall pay to the Collateral Agent an amount equal to, and in the currency of, any sums owing by it to a Secured Party under any Note Document (the


 
3 US-DOCS\137631201.6 “Principal Obligations”) as and when the same fall due for payment under the relevant Note Document (the “Parallel Debt”). The Parallel Debt will become due and payable as and when one or more of the Principal Obligations of the Guarantor becomes due and payable. Notwithstanding anything to the contrary in any Note Document, the Collateral Agent shall have its own independent right to demand payment of the Parallel Debt by the Guarantor and the Collateral Agent acts in its own name and not as a trustee, and its claims in respect of the Parallel Debt shall not be held on trust. The rights of the Secured Parties to receive payment of the Principal Obligations are several from the rights of the Collateral Agent to receive payment of the Parallel Debt; provided, that the payment by the Guarantor of its Parallel Debt to the Collateral Agent in accordance with this paragraph and the immediately preceding paragraph shall be a good discharge of the corresponding Principal Obligations and the payment by the Guarantor of its corresponding Principal Obligations in accordance with the Note Documents shall be a good discharge of the relevant Parallel Debt. In the event of a good discharge of the Principal Obligations, the Collateral Agent and the Secured Parties shall not be entitled any more to demand payment of the corresponding Parallel Debt and such Parallel Debt shall cease to exist. The amount of the Parallel Debt of the Guarantor shall at all times be equal to the amount of its Principal Obligations. This shall apply accordingly in the event of a good discharge of the Parallel Debt to the corresponding Principal Obligations. Despite the foregoing, any payment under the Note Documents shall be made to the Purchasers, unless expressly stated otherwise in the Note Documents (save for this paragraph and the immediately preceding paragraph) or unless the Collateral Agent (at the direction of the Required Purchasers) directs such payment to be made to the Collateral Agent. 6. Waiver by Guarantor. The Guarantor agrees that the Beneficiaries may at any time and from time to time, either before or after the maturity thereof, without notice to or further consent of the Guarantor, extend the time of payment of, exchange or surrender any collateral for, or renew any of the Guaranteed Obligations, and may also make any agreement with the Issuer for the extension, renewal, payment, compromise, discharge, or release thereof, in whole or in part, for any modification of the terms thereof or of any agreement between any of the Beneficiaries and the Issuer without in any way impairing or affecting this Guarantee. The Guarantor hereby waives notice of acceptance of this Guarantee, diligence, acceleration, presentment, notice of default or demand of payment to or upon the Issuer or the Guarantor, filing of claims with a court in the event of merger or bankruptcy of the Issuer, any right or requirement to proceed first against the Issuer, any protest or notice with respect to the Note Purchase Agreement or the obligations created or evidenced thereby and all demands whatsoever, any exchange, sale or surrender of, or realization on, any other guarantee or any collateral, and any and all other notices and surety defenses (other than payment in full) whatsoever. The Beneficiaries shall not be obligated to file any claim relating to the Guaranteed Obligations in the event that Issuer becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Beneficiaries to so file shall not affect the Guarantor’s obligations hereunder. 7. Reinstatement in Certain Instances. The Guarantor further agrees that if any payment or delivery of any of the Guaranteed Obligations is subsequently rescinded or is subsequently recovered from or repaid by the recipient thereof, in whole or in part, in any bankruptcy, reorganization, insolvency or similar proceedings instituted by or against the Issuer,


 
4 US-DOCS\137631201.6 or otherwise, the Guarantor’s obligations hereunder with respect to such Guaranteed Obligation shall be reinstated at such time to the same extent as though the payment or delivery so recovered or repaid had not been originally made. 8. Security Interest. (a) As security for the performance by the Guarantor of all the terms, covenants and agreements on the part of the Guarantor to be performed under this Guarantee and any other Note Document, including all Guaranteed Obligations, the Guarantor hereby grants to the Collateral Agent for its benefit and the ratable benefit of the other Secured Parties, a continuing security interest in, all of the Guarantor’s right, title and interest in, to and under all of the following, whether now or hereafter owned, existing or arising (collectively, the “Guarantor Collateral”): (i) sixty-five percent (65%) of the Equity Interests of Bird Rides Europe B.V., and (ii) all proceeds of, and all amounts received or receivable under any or all of, the foregoing. The Collateral Agent (for the benefit of the Secured Parties) shall have, with respect to all the Guarantor Collateral, and in addition to all the other rights and remedies available to the Collateral Agent (for the benefit of the Secured Parties), all the rights and remedies of a secured party under any applicable UCC. (b) The Guarantor authorizes the Collateral Agent (at the direction of the Required Purchasers) to perfect the Collateral Agent’s security interest in the Guarantor Collateral by filing or authorizing the filing of, at the expense of the Guarantor, UCC-1 financing statement naming the Collateral Agent as secured party and describing the Guarantor Collateral in a manner that the Required Purchasers reasonably determine is necessary or advisable to perfect the security interest granted hereunder. (c) At any time or from time to time upon the request of the Collateral Agent (at the direction of the Required Purchasers), the Guarantor will, at its expense, promptly execute, acknowledge, and deliver such further documents and do such other acts and things as the Required Purchasers reasonably determine is necessary or advisable to perfect the security interest granted hereunder. (d) Upon the Obligations becoming immediately due and payable, the Collateral Agent and the other Secured Parties shall have, in addition to the rights and remedies which they may have under this Guarantee and the other Note Documents, all other rights and remedies provided after default under the UCC and under other Applicable Law, which rights and remedies shall be cumulative. Any proceeds from liquidation of the Guarantor Collateral shall be applied pursuant to the Intercreditor Agreement. (e) Upon payment or conversion in full of the Obligations (other than inchoate indemnity obligations), the Guarantor Collateral shall be automatically released from the


 
5 US-DOCS\137631201.6 lien created hereby, and this Guarantee and all obligations (other than those expressly stated to survive such termination) of the Guarantor shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Guarantor Collateral shall revert to the Guarantor. Upon any sale or other transfer of any Guarantor Collateral in a transaction permitted under and in accordance with the terms of the Note Purchase Agreement, or upon the effectiveness of any written consent of the Collateral Agent (at the direction of the Required Purchasers) to the release of the Liens granted hereby on any Guarantor Collateral, the Collateral Agent’s Lien on such Guarantor Collateral shall be automatically released, and all rights therein shall revert to the Guarantor. Promptly following written request therefor by the Guarantor delivered to the Collateral Agent at the request of the Guarantor following any such termination or release, and at the expense of the Guarantor, the Collateral Agent shall execute and deliver to, and authorize the filing by, the Guarantor all financing statement amendments or termination statements and such other documents as the Guarantor shall reasonably request to evidence such termination or release and the Collateral Agent shall promptly deliver to the Guarantor all applicable Guarantor Collateral in its possession. 9. Representations and Warranties. The Guarantor hereby represents and warrants to the Beneficiaries that: (a) The Guarantor (i) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has full power and authority to own its properties and assets and to carry on its business as now being conducted and as presently contemplated, and (iii) has full power and authority to execute, deliver and perform its obligations under this Guarantee. (b) The execution, delivery and performance by the Guarantor of its obligations under this Guarantee will not (i) violate or conflict with (x) any provision of law, order, judgment, or decree of any court or other agency or government, (y) any provision of its constitutional documents, or (z) any agreement or other instrument to which the Guarantor is a party or is bound; (ii) result in a breach of, or constitute (with due notice or lapse of time or both) a default under any contractual provision to which it is bound; or (iii) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Guarantor pursuant to any indenture, agreement or instrument (other than pursuant to this Guarantee), except in the case of each of the foregoing clauses (i) through (iii) to the extent that any such conflict, breach, default, lien, charge, encumbrance, or violation as applicable, could not reasonably be expected to have a Material Adverse Effect. (c) Except where the failure to obtain or make such consent, approval or authorization could not reasonably be expected to have a Material Adverse Effect, all consents, approvals, or authorizations from any Governmental Authority that are required to be obtained in connection with or as a condition to the execution, delivery or performance of this Guarantee have been obtained or made and are in full force and effect. (d) The Guarantor is Solvent.


 
6 US-DOCS\137631201.6 (e) The Guarantor is not contemplating either a filing of a petition under any state or federal bankruptcy law, or the liquidating of all or a major portion of its property; and the Guarantor has no knowledge of any person contemplating the filing of such petition against it. (f) Perfection Representations. (i) This Guarantee creates a valid and continuing security interest (as defined in the applicable UCC) in the Guarantor’s right, title and interest in, to and under the Guarantor Collateral which (A) security interest has been perfected and is enforceable against the Guarantor and (B) will be free of all Adverse Claims in such Guarantor Collateral, except for and, upon filing of the UCC-1 financing statements referenced in Section 8(b), such security interest (A) will be perfected in the Guarantor Collateral to the extent such Guarantor Collateral can be perfected by the filing of a UCC-1 financing statement, (B) will be prior to all Liens of creditors of the Guarantor or any other Person, other than Permitted Liens and (C) will be free of all Liens in such Guarantor Collateral, other than Permitted Liens. (ii) The Guarantor owns and has good and marketable title to the Guarantor Collateral free and clear of any Lien of any Person other than Liens permitted to exist under the Note Purchase Agreement. (iii) All appropriate financing statements, financing statement amendments and continuation statements have been delivered to the proper filing office in the appropriate jurisdictions under Applicable Law in order to perfect (and continue the perfection of) the grant by the Guarantor of a security interest in the Guarantor Collateral to the Collateral Agent pursuant to this Guarantee. (iv) Other than the security interest granted to the Collateral Agent pursuant to this Guarantee, the Guarantor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Guarantor Collateral except as permitted by the Note Documents. The Guarantor has not authorized the filing of and, except as otherwise notified to the Collateral Agent in writing, is not aware of any financing statements filed against the Guarantor that include a description of collateral covering the Guarantor Collateral other than any financing statement (i) in favor of the Collateral Agent, (ii) evidencing a Permitted Lien, or (iii) that has been terminated. The Guarantor is not aware of any judgment lien, ERISA lien or tax lien filings against the Guarantor that are not permitted by this Guarantee and the other Note Documents. (v) Notwithstanding any other provision of this Guarantee or any other Note Document, the representations contained in this Section 9(f) shall be continuing and remain in full force and effect until payment or conversion in full of the Obligations (other than inchoate indemnity obligations).


 
7 US-DOCS\137631201.6 10. Incorporation by Reference. The provisions of Sections 10.8 and 13.14 and Exhibit D of the Note Purchase Agreement are incorporated herein by reference mutatis mutandis, as if fully set forth herein, with each reference to “Issuer” being deemed to be a reference to the Guarantor. 11. Subrogation. The Guarantor shall be subrogated to all rights of the Beneficiaries against the Issuer in respect of any amounts paid or deliveries made by the Guarantor pursuant to the provisions of this Guarantee, provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until payment in full of all of the Guaranteed Obligations. 12. Expenses of Enforcement. The Guarantor further agrees to pay all reasonable and documented out-of-pocket costs and expenses, including reasonable attorneys’ fees, which are incurred by any of the Beneficiaries in any effort to collect or enforce any provision of this Guarantee. 13. Set-Off. Upon the Guaranteed Obligations becoming due and payable (by acceleration or otherwise) under the Note Purchase Agreement or any other applicable Note Document, each Beneficiary is hereby authorized to setoff, appropriate and apply (without presentment, demand, protest or other notice which are hereby expressly waived) any deposits and any other indebtedness held or owing by such Beneficiary (including by any branches or agencies of such Beneficiary) to, or for the account of, the Guarantor against amounts owing by the Guarantor hereunder (even if contingent or unmatured); provided, that such Beneficiary shall notify the Guarantor promptly following such setoff. 14. [Reserved]. 15. Governing Law; Submission to Jurisdiction. THIS GUARANTEE AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL MATTERS ARISING OUT OF OR RELATING IN ANY WAY TO THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICTS OF LAW PROVISIONS THEREOF, EXCEPT TO THE EXTENT THAT THE PERFECTION, THE EFFECT OF PERFECTION OR PRIORITY OF THE INTERESTS OF COLLATERAL AGENT OR ANY PURCHASER IN THE COLLATERAL IS GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK). With respect to any suit, action or proceedings relating to this Guarantee (“Proceedings”), the Guarantor irrevocably: (a) submits to the exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City and irrevocably agrees to designate any Proceedings brought in the courts of the State of New York as “commercial” on the Request for Judicial Intervention seeking assignment to the Commercial Division of the Supreme Court; and (b) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings that such court does not have any jurisdiction over the Guarantor. Nothing in this Guarantee


 
8 US-DOCS\137631201.6 precludes the Beneficiaries from bringing Proceedings in any other jurisdiction in order to enforce any judgment obtained in any Proceedings referred to in the preceding sentence. 16. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS GUARANTEE OR ANY OTHER NOTE DOCUMENT. 17. Successor and Assigns. This Guarantee shall continue in full force and effect and be binding upon the Guarantor and the successors and permitted assigns of the Guarantor, provided, however, that the Guarantor may not assign or otherwise transfer this Guarantee or any obligations hereunder without the prior written consent of the Required Purchasers and any such assignment or transfer without such consent shall be void. The Beneficiaries may, concurrently with any assignment of their rights and obligations in accordance with the Note Purchase Agreement, assign this Guarantee or any rights or powers hereunder, with any or all of the underlying liabilities or obligations, the payment of which is guaranteed hereunder, in each case, subject to and in accordance with the terms and conditions of the Note Purchase Agreement. 18. Entire Agreement; Amendments and Waivers. This Guarantee supersedes any prior negotiations, discussions, or communications between the Beneficiaries and the Guarantor and constitutes the entire agreement between the Beneficiaries and the Guarantor with respect to the Note Purchase Agreement and this Guarantee. No provision of this Guarantee may be amended, modified or waived without the prior written consent of the Required Purchasers. 19. Notices. All notices or other communications to the Guarantor and the Beneficiaries shall be delivered pursuant to the requirements set forth in Section 10 of the Note Purchase Agreement (the Guarantor’s address and email address for notices and other communications shall be the same as that of the Issuer). 20. Intercreditor Agreement. Notwithstanding anything herein to the contrary, the Guaranteed Obligations, pursuant to this Guarantee and the exercise of any right or remedy by the Collateral Agent and the other Secured Parties hereunder are subject to the provisions of the Intercreditor Agreement. In the event of any conflict or inconsistency between the provisions of the Intercreditor Agreement and this Guarantee, the provisions of the Intercreditor Agreement shall govern and control. [SIGNATURE PAGE FOLLOWS]


 
[Signature Page to Guarantee] IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be executed by one of its duly authorized representatives or officers. BIRD RIDES INTERNATIONAL HOLDING, INC. By: /s/ Shane Torchiana Name: Shane Torchiana Title: President and Chief Executive Officer


 
[Signature Page to Guarantee] U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION By: /s/ Brandon Bonfig Name: Brandon Bonfig Title: Vice President


 

The indebtedness evidenced by this instrument or agreement is subject to the Subordination and Intercreditor Agreement, dated as of December 30, 2022 , by and among, inter alia, Midcap Financial Trust and U.S. Bank Trust Company, National Association and acknowledged by Bird Global, Inc., 1393631 B.C. Unlimited Liability Company, Bird Canada Inc., Bird Rides Inc., Bird US Opco, LLC, Bird US Holdco, LLC and Bird Rides International Holding, Inc. Execution Version 1 CAN_DMS: \149683496\4 GUARANTEE This GUARANTEE (the “Guarantee”), dated as of December 30, 2022, made jointly and severally by Bird Canada Inc. and 1393631 B.C. Unlimited Liability Company (collectively, the “Guarantors” and individually, a “Guarantor”), is in favor of U.S. Bank Trust Company, National Association, as Collateral Agent (the “Collateral Agent”), and the Purchasers (the “Purchasers” and collectively with the Collateral Agent, the “Beneficiaries”) under the Note Purchase Agreement (as defined below). RECITALS 1. Bird Global, Inc., a Delaware corporation (the “Issuer”), and the Beneficiaries have entered into the Note Purchase Agreement dated as of December 30, 2022(as amended, supplemented, or modified from time to time, the “Note Purchase Agreement”). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Note Purchase Agreement. 2. Prior to the Beneficiaries extending any credit to the Issuer under the Note Purchase Agreement, the Issuer is required to provide the Beneficiaries with a guarantee duly executed by the Guarantors, and this Guarantee is being delivered in satisfaction of such requirement. 3. The Guarantors, each a wholly-owned Subsidiary of the Issuer, derives substantial direct and indirect benefits from the extensions of credit contemplated by the Note Purchase Agreement. GUARANTEE As an inducement to the Beneficiaries to enter into the Note Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Guarantor agrees as follows: 1. Guarantee. Each Guarantor hereby unconditionally and irrevocably jointly and severally guarantees (as primary obligor and not merely as surety) to the Beneficiaries and their successors and permitted assigns the punctual and complete payment of all amounts due and payable and performance of all other obligations (now or hereafter arising, by acceleration or otherwise) by (i) the Issuer under the Note Purchase Agreement and under the other Note Documents (including all Obligations), and (ii) each other Note Party (other than such Guarantor) under the Note Documents to which such Note Party is a party (the “Guaranteed Obligations”) without regard to any defense of any kind which such Guarantor may have or assert, and without abatement, suspension, deferment or diminution of any event or condition whatsoever. 2. Indemnity. If any or all of the Guaranteed Obligations are not paid or performed by the Issuer or any other Note Party, as applicable, and are not paid or performed by the Guarantors


 
2 CAN_DMS: \149683496\4 or any of them under Section 1 for any reason whatsoever, the Guarantors will, as a separate and distinct obligation, on a joint and several basis, indemnify and save harmless the Beneficiaries from and against all losses, costs and expenses suffered or incurred by them arising from, or in connection with, or as a result of (a) any of the provisions of the Note Purchase Agreement or any of the Note Documents being or becoming void, voidable, unenforceable or invalid, or (b) the failure of the Issuer or any other Note Party, as applicable, to fully and promptly pay or perform any of the Guaranteed Obligations. 3. Primary Obligations. If any or all of the Guaranteed Obligations are not paid or performed by the Issuer or any other Note Party, as applicable, and are not paid or performed by the Guarantors or any of them under Section 1 or the Beneficiairies are not indemnified under Section 2, in each case, for any reason whatsoever, such Guaranteed Obligations will, as a separate and distinct obligation, be paid and performed by the Guarantors as primary obligors, on a joint and several basis, immediately upon written demand to the Guarantors by the Beneficiaries for such payment or performance. 4. Guarantee Absolute and Unconditional. Each Guarantor hereby agrees that its obligations shall be absolute, irrevocable, and unconditional and, without limiting the generality of the foregoing, shall not be released, discharged, or otherwise affected by: (a) any failure or delay to enforce the provisions of the Note Purchase Agreement or the other Note Documents; (b) any contest by the Issuer or any other Person as to the amount of the Guaranteed Obligations or the validity or enforceability of any terms of the Note Documents or the perfection or priority of any security interest granted to the Beneficiaries by the Issuer or any other Personthe perfection, release or extent of any Collateral or Guarantor Collateral (as defined below) or any failure to realize on any Collateral or Guarantor Collateral; (c) any waiver, modification, or consent to departure from, or amendment of the Note Purchase Agreement or other Note Documents; (d) any taking or failure to take a security interest by the Beneficiaries or any loss of, or loss of value of, any security interest granted to the Beneficiaries; (e) any defence, counter-claim or right of set-off available to the Issuer or any other Person; (f) the invalidity, illegality, or unenforceability of the Note Purchase Agreement or other Note Documents or the Guaranteed Obligations; (g) any limitation of status or power, disability, incapacity or other circumstance relating to the Issuer, any of the Guarantors or any other Person, including any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation, winding-up or other like proceeding involving or affecting the Issuer, any of the Guarantors or any other Person or any action taken with respect to this Guarantee by any trustee or receiver, or by any court, in any such proceeding, whether or not such Guarantor has notice or knowledge of any of the foregoing;


 
3 CAN_DMS: \149683496\4 (h) any impossibility, impracticability, frustration of purpose, force majeure or illegality of any of the Note Documents or the Issuer’s or any Note Party’s performance in respect thereof, or the occurrence of any change in the law of any jurisdiction or by any present or future action of any governmental authority that amends, varies, reduces or otherwise affects, or purports to amend, vary, reduce or otherwise affect, any of the Guaranteed Obligations or the obligations of the Guarantors under this Guarantee, or the obtaining of any court order that amends, varies, reduces or otherwise affects any of the Guaranteed Obligations or the obligations of the Guarantors under this Guarantee; (i) any change in the corporate existence, structure, or ownership of the Issuer or the other Note Parties; (j) any extension of time or times for payment or performance of the Guaranteed Obligations or any releases, variations or indulgences which the Beneficiaries may grant to the Issuer or any other Person or any extinguishment of all or any part of the Guaranteed Obligations by operation of law; or (k) any other circumstances (other than payment or conversion in full of the Obligations or the Guaranteed Obligations) which may otherwise constitute a legal or equitable discharge of a surety or guarantor. This Guarantee constitutes a guarantee of payment when due and not of collection. The Beneficiaries have no duty or responsibility whatsoever to the Guarantors and make no representation or warranty in respect of the management and maintenance of the Guaranteed Obligations or any collateral therefor. 5. Waiver by Guarantors. Each Guarantor agrees that the Beneficiaries may at any time and from time to time, either before or after the maturity thereof, without notice to or further consent of any Guarantor, extend the time of payment of, exchange or surrender any collateral for, or renew any of the Guaranteed Obligations, and may also make any agreement with the Issuer or any other Person for the extension, renewal, payment, compromise, discharge, or release thereof, in whole or in part, for any modification of the terms thereof or of any agreement between any of the Beneficiaries and the Issuer or any other Note Party without in any way impairing or affecting this Guarantee. Each Guarantor hereby waives notice of acceptance of this Guarantee, diligence, acceleration, presentment, notice of default or demand of payment to or upon the Issuer, any other Note Party or any Guarantor, filing of claims with a court in the event of merger or bankruptcy of the Issuer, any right or requirement to proceed first against the Issuer or any other Note Party, any protest or notice with respect to the Note Purchase Agreement or any other Note Document or the obligations created or evidenced thereby and all demands whatsoever, any exchange, sale or surrender of, or realization on, any other guarantee or any collateral, and any and all other notices and surety defenses (other than payment in full) whatsoever. The Beneficiaries shall not be obligated to file any claim relating to the Guaranteed Obligations in the event that the Issuer or any other Note Party becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Beneficiaries to so file shall not affect the obligations of the Guarantors hereunder.


 
4 CAN_DMS: \149683496\4 6. Reinstatement in Certain Instances. The Guarantors further agree that if any payment or delivery of any of the Guaranteed Obligations is subsequently rescinded or is subsequently recovered from or repaid by the recipient thereof, in whole or in part, in any bankruptcy, reorganization, insolvency or similar proceedings instituted by or against the Issuer, or otherwise, each Guarantor’s obligations hereunder with respect to such Guaranteed Obligation shall be reinstated at such time to the same extent as though the payment or delivery so recovered or repaid had not been originally made. 7. Security Interest. As security for the performance by each Guarantor of all the terms, covenants and agreements on the part of such Guarantor to be performed under this Guarantee and any other Note Documents to which it is a party such Guarantor has entered into a pledge and collateral agreement dated on or about the date hereof (the “Security Agreement”) granting a pledge and security interest in the collateral described therein (the “Guarantor Collateral”). Subject to the terms of the Security Agreement, upon any sale or other transfer of any Guarantor Collateral in a transaction permitted under and in accordance with the terms of the Note Purchase Agreement, or upon the effectiveness of any written consent of the Collateral Agent to the release of the Liens granted hereby on any Guarantor Collateral, the Collateral Agent’s Lien on such Guarantor Collateral shall be automatically released, and all rights therein shall revert to the applicable Guarantor. 8. Representations and Warranties. The Guarantors hereby jointly and severally represent and warrant to the Beneficiaries that: (a) Each Guarantor (i) is a corporation duly organized, validly existing and in good standing under the laws of the Province of its incorporation , (ii) has full power and authority to own its properties and assets and to carry on its business as now being conducted and as presently contemplated, and (iii) has full power and authority to execute, deliver and perform its obligations under this Guarantee. (b) The execution, delivery and performance by each Guarantor of its obligations under this Guarantee will not (i) violate or conflict with (x) any provision of law, order, judgment, or decree of any court or other agency or government, (y) any provision of its constitutional documents, or (z) any agreement or other instrument to which such Guarantor is a party or is bound; (ii) result in a breach of, or constitute (with due notice or lapse of time or both) a default under any contractual provision to which it is bound; or (iii) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of such Guarantor pursuant to any indenture, agreement or instrument (other than pursuant to this Guarantee), except in the case of each of the foregoing clauses (i) through (iii) to the extent that any such conflict, breach, default, lien, charge, encumbrance, or violation as applicable, could not reasonably be expected to have a Material Adverse Effect. (c) Except where the failure to obtain or make such consent, approval or authorization could not reasonably be expected to have a Material Adverse Effect, all consents, approvals, or authorizations from any Governmental Authority that are required to be obtained in connection with or as a condition to the execution, delivery or performance of this Guarantee have been obtained or made and are in full force and effect.


 
5 CAN_DMS: \149683496\4 (d) Each Guarantor is Solvent. (e) Neither Guarantor is contemplating either a filing of a petition under any federal or provincial bankruptcy law, or the liquidating of all or a major portion of its property; and neither Guarantor has any knowledge of any person contemplating the filing of such petition against it. (f) Notwithstanding any other provision of this Guarantee or any other Note Document, the representations contained in this Section 8 shall be continuing and remain in full force and effect until payment or conversion in full of the Guaranteed Obligations (other than inchoate indemnity obligations). 9. Subrogation. Each Guarantor shall be subrogated to all rights of the Beneficiaries against the Issuer and the other Note Parties in respect of any amounts paid or deliveries made by such Guarantor pursuant to the provisions of this Guarantee, provided, however, that the Guarantors shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until indefeasible and final payment in full of all of the Guaranteed Obligations. 10. Expenses of Enforcement. The Guarantors further agree to pay, on a joint and several basis, all reasonable and documented out-of-pocket costs and expenses, including reasonable attorneys’ fees, which are incurred by any of the Beneficiaries in any effort to collect or enforce any provision of this Guarantee. 11. Set-Off. Upon the Guaranteed Obligations becoming due and payable (by acceleration or otherwise) under the Note Purchase Agreement or any other applicable Note Document, each Beneficiary is hereby authorized to setoff, appropriate and apply (without presentment, demand, protest or other notice which are hereby expressly waived) any deposits and any other indebtedness held or owing by such Beneficiary (including by any branches or agencies of such Beneficiary) to, or for the account of, any Guarantor against amounts owing by such Guarantor hereunder (even if contingent or unmatured); provided, that such Beneficiary shall notify such Guarantor promptly following such setoff. 12. Interest Act (Canada). Each Guarantor acknowledges that certain of the rates of interest applicable to the Guaranteed Obligations may be computed on the basis of a year of 360 days or 365 days, as the case may be and paid for the actual number of days elapsed. For purposes of the Interest Act (Canada), whenever any interest is calculated using a rate based on a year of 360 days or 365 days, as the case may be, such rate determined pursuant to such calculation, when expressed as an annual rate is equivalent to (a) the applicable rate based on a year of 360 days or 365 days, as the case may be, (b) multiplied by the actual number of days in the calendar year in which the period for such interest is payable (or compounded) ends, and (c) divided by 360 or 365, as the case may be. 13. Severability. If any provision of this Guarantee is determined by a court of competent jurisdiction to be illegal, invalid or unenforceable that provision will be severed from this Guarantee and the remaining provisions will continue in full force and effect, without limitation.


 
6 CAN_DMS: \149683496\4 14. Governing Law; Submission to Jurisdiction. THIS GUARANTEE AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL MATTERS ARISING OUT OF OR RELATING IN ANY WAY TO THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN). With respect to any suit, action or proceedings relating to this Guarantee (“Proceedings”), each Guarantor irrevocably: (a) submits to the non-exclusive jurisdiction of the courts of the Province of Ontario; and (b) agrees that all claims in respect of any suit, action or proceeding may be heard and determined in such court and (c) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings that such court does not have any jurisdiction over such Guarantor. Nothing in this Guarantee precludes the Beneficiaries from bringing Proceedings in any other jurisdiction in order to enforce any judgment obtained in any Proceedings referred to in the preceding sentence. 15. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS GUARANTEE OR ANY OTHER NOTE DOCUMENT. 16. Judgment Currency. (a) If for the purposes of obtaining judgment in any court it is necessary to convert all or any part of the Guaranteed Obligations or any other amount due to the relevant Beneficiaries in respect of a Guarantor’s obligations under this Guarantee in any currency (the “Original Currency”) into another currency (the “Other Currency”), such Guarantor, to the fullest extent that it may effectively do so, agrees that the rate of exchange used will be that at which, in accordance with normal banking procedures, the relevant Beneficiary could purchase the Original Currency with the Other Currency on the Business Day preceding that on which final judgment is paid or satisfied. (b) The obligations of a Guarantor in respect of any sum due in the Original Currency from it to any of the Beneficiaries will, notwithstanding any judgment in any Other Currency, be discharged only to the extent that on the Business Day following receipt by the relevant Beneficiaries of any sum adjudged to be so due in such Other Currency the relevant Beneficiaries may, in accordance with their normal banking procedures, purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, such Guarantor agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such Beneficiaries against such loss.


 
7 CAN_DMS: \149683496\4 17. Successor and Assigns. This Guarantee shall continue in full force and effect and be binding upon the Guarantors and the successors and permitted assigns of the Guarantors, provided, however, that the Guarantors may not assign or otherwise transfer this Guarantee or any obligations hereunder without the prior written consent of the Required Purchasers and any such assignment or transfer without such consent shall be void. The Beneficiaries may, concurrently with any assignment of their rights and obligations in accordance with the Note Purchase Agreement, assign this Guarantee or any rights or powers hereunder, with any or all of the underlying liabilities or obligations, the payment of which is guaranteed hereunder, in each case, subject to and in accordance with the terms and conditions of the Note Purchase Agreement. 18. Entire Agreement; Amendments and Waivers. This Guarantee, together with the other Note Documents to which each Guarantor is a party, supersedes any prior negotiations, discussions, or communications between the Beneficiaries and the Guarantors or any of them and constitutes the entire agreement between the Beneficiaries and the Guarantors with respect to the Note Purchase Agreement and this Guarantee. No provision of this Guarantee may be amended, modified or waived without the prior written consent of the Required Purchasers. 19. Notices. All notices or other communications to the Guarantors and the Beneficiaries shall be delivered pursuant to the requirements set forth in Section 10 of the Note Purchase Agreement (each Guarantor’s address and email address for notices and other communications shall be the same as that of the Issuer). 20. Counterparts. This Guarantee may be executed in any number of separate counterparts, each of which shall be deemed to be an original. All such signed counterparts, taken together, shall constitute one and the same instrument. Delivery of an executed signature page to this Guarantee by electronic means (including by facsimile or in PDF format) shall be as valid and effective as delivery of an originally or manually executed copy of this Guarantee. [SIGNATURE PAGE FOLLOWS]


 
[Signature Page to Guarantee] CAN_DMS: \149683496\4 IN WITNESS WHEREOF, each Guarantor has caused this Guarantee to be executed by one of its duly authorized representatives or officers. 1393631 B.C. UNLIMITED LIABILITY COMPANY By: /s/ Stewart Lyons Name: Stewart Lyons Title: Chief Executive Officer [Signature pages continue.]


 
[Signature Page to Guarantee] CAN_DMS: \149683496\4 IN WITNESS WHEREOF, each Guarantor has caused this Guarantee to be executed by one of its duly authorized representatives or officers. BIRD CANADA INC. By: /s/ Shane Torchiana Name: Shane Torchiana Title: Chief Executive Officer


 

Execution Version 1 US-DOCS\137586126.7 THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT OR AGREEMENT IS SUBJECT TO THE SUBORDINATION AND INTERCREDITOR AGREEMENT, DATED AS OF DECEMBER 30, 2022, 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., 1393631 B.C. UNLIMITED LIABILITY COMPANY, AND BIRD CANADA INC. GUARANTEE This GUARANTEE (the “Guarantee”), dated as of December 30, 2022, made by Bird Rides, Inc. (the “Guarantor”), is in favor of U.S. Bank Trust Company, National Association, as Collateral Agent (the “Collateral Agent”), and the Purchasers (the “Purchasers” and collectively with the Collateral Agent, the “Beneficiaries”) under the Note Purchase Agreement (as defined below). RECITALS 1. Bird Global, Inc., a Delaware corporation (the “Issuer”), and the Beneficiaries have entered into the Note Purchase Agreement dated as of December 30, 2022 (as amended, supplemented, or modified from time to time, the “Note Purchase Agreement”). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Note Purchase Agreement. 2. Prior to the Beneficiaries extending any credit to the Issuer under the Note Purchase Agreement, the Issuer is required to provide the Beneficiaries with a guarantee duly executed by the Guarantor, and this Guarantee is being delivered in satisfaction of such requirement. 3. The Guarantor, a wholly-owned Subsidiary of the Issuer, derives substantial direct and indirect benefits from the extensions of credit contemplated by the Note Purchase Agreement. GUARANTEE As an inducement to the Beneficiaries to enter into the Note Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Guarantor agrees as follows: 1. Guarantee. The Guarantor hereby unconditionally and irrevocably guarantees (as primary obligor and not merely as surety) to the Beneficiaries and their successors and permitted assigns the punctual and complete payment of all amounts due and payable and performance of all other Obligations (now or hereafter arising, by acceleration or otherwise) by the Issuer and the other Note Parties under the Note Purchase Agreement and the other Note Documents (the “Guaranteed Obligations”) without regard to any defense of any kind which the Guarantor may have or assert, and without abatement, suspension, deferment, or diminution of any event or condition whatsoever, provided, that, notwithstanding anything to the contrary hereunder, the Guaranteed Obligations of the Guarantor shall be limited to an aggregate amount equal to the


 
2 US-DOCS\137586126.7 largest amount that would not render this Guarantee subject to avoidance under Section 548 of the Bankruptcy Code or any comparable provisions of applicable law. 2. Guarantee Absolute and Unconditional. The Guarantor hereby agrees that its obligations shall be absolute, irrevocable, and unconditional and, without limiting the generality of the foregoing, shall not be released, discharged, or otherwise affected by: (a) any failure or delay to enforce the provisions of the Note Purchase Agreement or any of the other Note Documents or the other Note Documents; (b) the perfection, release or extent of any Collateral or any failure to realize on any Collateral; (c) any waiver, modification or consent to departure from, or amendment of the Note Purchase Agreement or any of the other Note Documents; (d) the invalidity, illegality or unenforceability of the Note Purchase Agreement, any of the other Note Documents, or the Guaranteed Obligations; (e) any change in the corporate existence, structure or ownership of the Issuer or the other Note Parties; or (f) any other circumstances (other than payment or conversion in full of the Obligations or the Guaranteed Obligations) which may otherwise constitute a legal or equitable discharge of a surety or guarantor. This Guarantee constitutes a guarantee of payment when due and not of collection. The Beneficiaries have no duty or responsibility whatsoever to the Guarantor and make no representation or warranty in respect of the management and maintenance of the Guaranteed Obligations or any collateral therefor. 3. Waiver by Guarantor. The Guarantor agrees that the Beneficiaries may at any time and from time to time, either before or after the maturity thereof, without notice to or further consent of the Guarantor, extend the time of payment of, exchange or surrender any collateral for, or renew any of the Guaranteed Obligations, and may also make any agreement with the Issuer for the extension, renewal, payment, compromise, discharge, or release thereof, in whole or in part, for any modification of the terms thereof or of any agreement between any of the Beneficiaries and the Issuer without in any way impairing or affecting this Guarantee. The Guarantor hereby waives notice of acceptance of this Guarantee, diligence, acceleration, presentment, notice of default or demand of payment to or upon the Issuer or the Guarantor, filing of claims with a court in the event of merger or bankruptcy of the Issuer, any right or requirement to proceed first against the Issuer, any protest or notice with respect to the Note Purchase Agreement or the obligations created or evidenced thereby and all demands whatsoever, any exchange, sale or surrender of, or realization on, any other guarantee or any collateral, and any and all other notices and surety defenses (other than payment in full) whatsoever. The Beneficiaries shall not be obligated to file any claim relating to the Guaranteed Obligations in the event that Issuer becomes subject to a bankruptcy, reorganization or similar


 
3 US-DOCS\137586126.7 proceeding, and the failure of the Beneficiaries to so file shall not affect the Guarantor’s obligations hereunder. 4. Reinstatement in Certain Instances. The Guarantor further agrees that if any payment or delivery of any of the Guaranteed Obligations is subsequently rescinded or is subsequently recovered from or repaid by the recipient thereof, in whole or in part, in any bankruptcy, reorganization, insolvency or similar proceedings instituted by or against the Issuer, or otherwise, the Guarantor’s obligations hereunder with respect to such Guaranteed Obligation shall be reinstated at such time to the same extent as though the payment or delivery so recovered or repaid had not been originally made. 5. Representations and Warranties. The Guarantor hereby represents and warrants to the Beneficiaries that: (a) The Guarantor (i) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has full power and authority to own its properties and assets and to carry on its business as now being conducted and as presently contemplated, and (iii) has full power and authority to execute, deliver and perform its obligations under this Guarantee. (b) The execution, delivery and performance by the Guarantor of its obligations under this Guarantee will not (i) violate or conflict with (x) any provision of law, order, judgment, or decree of any court or other agency or government, (y) any provision of its constitutional documents, or (z) any agreement or other instrument to which the Guarantor is a party or is bound; (ii) result in a breach of, or constitute (with due notice or lapse of time or both) a default under any contractual provision to which it is bound; or (iii) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Guarantor pursuant to any indenture, agreement or instrument (other than pursuant to this Guarantee), except in the case of each of the foregoing clauses (i) through (iii) to the extent that any such conflict, breach, default, lien, charge, encumbrance, or violation as applicable, could not reasonably be expected to have a Material Adverse Effect. (c) Except where the failure to obtain or make such consent, approval or authorization could not reasonably be expected to have a Material Adverse Effect, all consents, approvals, or authorizations from any Governmental Authority that are required to be obtained in connection with or as a condition to the execution, delivery or performance of this Guarantee have been obtained or made and are in full force and effect. (d) The Guarantor is Solvent. (e) The Guarantor is not contemplating either a filing of a petition under any state or federal bankruptcy law, or the liquidating of all or a major portion of its property; and the Guarantor has no knowledge of any person contemplating the filing of such petition against it. (f) The Guarantor is in compliance with the covenant in Section 6 hereof.


 
4 US-DOCS\137586126.7 6. Covenants. The Guarantor shall not create, assume, incur, suffer to exist, or otherwise permit any Liens in respect of any of its Intellectual Property that is material to its business, taken as a whole, in each case other than (i) Permitted Liens, (ii) the interest or title of a licensor or sublicensor under licenses granted to and entered into by Guarantor in the ordinary course of business, (iii) licenses or sublicenses granted to others in the ordinary course of business (including any other agreement under which the Guarantor has granted rights to end users to access and use the Guarantor’s products, technologies, facilities, or services) which do not interfere in any material respect with the business of the Guarantor, taken as a whole, and (iv) the license given by the Guarantor to Bird US Opco, LLC in Section 9.3 of the Master Scooter Operating Lease and Servicing Agreement, dated as of April 27, 2021, by and between Guarantor and Bird US Opco, LLC, as amended, supplemented, or modified from time to time. 7. Subrogation. The Guarantor shall be subrogated to all rights of the Beneficiaries against the Issuer in respect of any amounts paid or deliveries made by the Guarantor pursuant to the provisions of this Guarantee, provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until payment in full of all of the Guaranteed Obligations. 8. Expenses of Enforcement. The Guarantor further agrees to pay all reasonable and documented out-of-pocket costs and expenses, including reasonable attorneys’ fees, which are incurred by any of the Beneficiaries in any effort to collect or enforce any provision of this Guarantee. 9. Set-Off. Upon the Guaranteed Obligations becoming due and payable (by acceleration or otherwise) under the Note Purchase Agreement or any other applicable Note Document, each Beneficiary is hereby authorized to setoff, appropriate and apply (without presentment, demand, protest or other notice which are hereby expressly waived) any deposits and any other indebtedness held or owing by such Beneficiary (including by any branches or agencies of such Beneficiary) to, or for the account of, the Guarantor against amounts owing by the Guarantor hereunder (even if contingent or unmatured); provided, that such Beneficiary shall notify the Guarantor promptly following such setoff. 10. Incorporation by Reference. The provisions of Sections 10.8 and 13.14 and Exhibit D of the Note Purchase Agreement are incorporated herein by reference mutatis mutandis, as if fully set forth herein, with each reference to “Issuer” being deemed to be a reference to the Guarantor. 11. Governing Law; Submission to Jurisdiction. THIS GUARANTEE AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL MATTERS ARISING OUT OF OR RELATING IN ANY WAY TO THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICTS OF LAW PROVISIONS THEREOF). With respect to any suit, action or proceedings relating to this Guarantee (“Proceedings”), the Guarantor irrevocably: (a) submits to the exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City and irrevocably agrees to


 
5 US-DOCS\137586126.7 designate any Proceedings brought in the courts of the State of New York as “commercial” on the Request for Judicial Intervention seeking assignment to the Commercial Division of the Supreme Court; and (b) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings that such court does not have any jurisdiction over the Guarantor. Nothing in this Guarantee precludes the Beneficiaries from bringing Proceedings in any other jurisdiction in order to enforce any judgment obtained in any Proceedings referred to in the preceding sentence. 12. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS GUARANTEE OR ANY OTHER NOTE DOCUMENT. 13. Successor and Assigns. This Guarantee shall continue in full force and effect and be binding upon the Guarantor and the successors and permitted assigns of the Guarantor, provided, however, that the Guarantor may not assign or otherwise transfer this Guarantee or any obligations hereunder without the prior written consent of the Required Purchasers and any such assignment or transfer without such consent shall be void. The Beneficiaries may, concurrently with any assignment of their rights and obligations in accordance with the Note Purchase Agreement, assign this Guarantee or any rights or powers hereunder, with any or all of the underlying liabilities or obligations, the payment of which is guaranteed hereunder, in each case, subject to and in accordance with the terms and conditions of the Note Purchase Agreement. 14. Entire Agreement; Amendments and Waivers. This Guarantee supersedes any prior negotiations, discussions, or communications between the Beneficiaries and the Guarantor and constitutes the entire agreement between the Beneficiaries and the Guarantor with respect to the Note Purchase Agreement and this Guarantee. No provision of this Guarantee may be amended, modified, or waived without the prior written consent of the Required Purchasers. 15. Notices. All notices or other communications to the Guarantor and the Beneficiaries shall be delivered pursuant to the requirements set forth in Section 10 of the Note Purchase Agreement (the Guarantor’s address and email address for notices and other communications shall be the same as that of the Issuer). 16. Intercreditor Agreement. Notwithstanding anything herein to the contrary, the Guaranteed Obligations, pursuant to this Guarantee and the exercise of any right or remedy by the Purchasers hereunder are subject to the provisions of the Intercreditor Agreement. In the event of any conflict or inconsistency between the provisions of the Intercreditor Agreement and this Guarantee, the provisions of the Intercreditor Agreement shall govern and control. [SIGNATURE PAGE FOLLOWS]


 
[Signature Page to Guarantee] IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be executed by one of its duly authorized representatives or officers. BIRD RIDES, INC. By: /s/ Shane Torchiana Name: Shane Torchiana Title: President and Chief Executive Officer


 

Execution Version CAN_DMS: \149670305\3 PLEDGE AGREEMENT dated as of December 30, 2022, among BIRD GLOBAL, INC. as Grantor and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Collateral Agent The indebtedness evidenced by this instrument or agreement is subject to the Subordination and Intercreditor Agreement, dated as of December 30, 2022, by and among, inter alia, Midcap Financial Trust and U.S. Bank Trust Company, National Association and acknowledged by Bird Global, Inc., 1393631 B.C. Unlimited Liability Company, Bird Canada Inc., Bird Rides Inc., Bird US Opco, LLC, Bird US Holdco, LLC and Bird Rides International Holding, Inc.


 
CAN_DMS: \149670305\3 PLEDGE AGREEMENT dated as of December 30, 2022 (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”) among Bird Global, Inc., a Delaware corporation (the “Grantor”) and U.S. Bank Trust Company, National Association, as collateral agent for the Purchasers (the “Collateral Agent”) on behalf of the several purchasers from time to time party to the Note Purchase Agreement (as defined below) (the “Purchasers” and together with the Collateral Agent, the “Secured Parties”). Reference is made to the note purchase agreement dated as of December 30, 2022 (as amended, restated, supplemented and otherwise modified from time to time, the “Note Purchase Agreement”) among the Grantor, the Purchasers and the Collateral Agent, pursuant to which Grantor has issued to Purchasers secured convertible notes (“Notes”). WHEREAS, the Purchasers have agreed to purchase Notes subject to the terms and conditions set forth in the Note Purchase Agreement; WHEREAS, the Grantor is executing and delivering this Agreement as further security for its obligations under the Note Purchase Agreement, the Notes and other other Note Documents (as defined in the Note Purchase Agreement).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 PPSA or the STA (each as defined herein), as applicable, have the same meanings when used herein (whether or not capitalized) and not defined in this Agreement or the Note Purchase Agreement shall have the meaning specified in the PPSA, including the following: “Account”; “Certificated Security”; “Chattel Paper”; “Consumer Goods” “Documents of Title”; “Equipment”; “Financial Asset”; “Fixtures”; “Futures Account”, “Goods”; “Instrument”; “Intangible”; “Inventory”; “Investment Property”; “Issuer”; “Proceeds”; “Securities”; “Securities Account”; “Securities Entitlements”; “Securities Intermediary” and “Chattel Paper”. (b) The rules of construction specified in Section 1 of 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 the Grantor under, with respect to or on account of an Account, Chattel Paper or Intangible. “Agreement” has the meaning assigned to such term in the preamble to this Agreement. “Business Day” means a day other than a Saturday, Sunday, or other day on which banking institutions are authorized or required by law or regulation to close in the Province of Ontario. “Collateral” means the Pledged Collateral and any other collateral charged or in which a security interest is granted pursuant to the terms of this Agreement from time to time.


 
-2- CAN_DMS: \149670305\3 “Collateral Agent” has the meaning assigned to such term in the preamble to this Agreement. “Company” means 1393631 B.C. Unlimited Liability Company, a British Columbia unlimited liability company. “Excluded Assets” means: (a) any real property or real property interests (including, without limitation, leasehold interests), (b) any governmental licenses or state or provincial 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 the PPSA (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, (c) 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 favour 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 the PPSA (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, (d) any assets or property to the extent granting, creating or perfecting a pledge, secu- rity 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 au- thority or third Person); provided that the foregoing exclusions in this clause (d) shall in no way be con- strued 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 the PPSA (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 (a), (b), and (c) shall constitute “Excluded Assets” only to the extent and for so long as such applicable licenses, franchises, charters, authorizations, laws, orders or regulations validly prohibit the creation of a Lien on such asset or property in favour of Collateral Agent, or the grant of a security interest in such lease, license or agreement or such property subject to such agree- ment would violate or invalidate such lease, license or agreement or create a right of termination in favour 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 (a), (b), or (c) hereof, as applicable, (e) any asset or property with respect to which the Collateral Agent (at the direction of the Required Purchasers) and the Grantor mutually determine that the costs of obtaining a security inter- est or Lien therein is excessive in relation to the practical benefit to the Purchasers of the security afforded thereby, (f) 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 de- termined by the Grantor and the Collateral Agent (at the direction of the Required Purchasers),


 
-3- CAN_DMS: \149670305\3 (g) any assets or property not located in the United States or Canada that require action under the law of any jurisdiction not located in the United States or Canada to create or perfect a security interest or Lien in such asset or property (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-Canada jurisdiction), (h) motor vehicles, airplanes, and other assets subject to certificates of title (excluding, for the avoidance of doubt, any electronic scooter vehicles or scooters), (i) 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 ex- clusions in this clause (j) shall in no way be construed to apply to the extent that the prohibition is unen- forceable under Sections 9-406, 9-407, 9-408, or 9-409 of the UCC or the PPSA (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law or principles of equity (in each case, unless preempted); (k) consumer goods; and (l) the last day of the term of any lease or sublease or any agreement for a lease or sublease, now held or hereafter acquired by the Grantor in respect of real property, but the Grantor shall stand possessed of any such last day upon trust to assign and dispose of it as the Collateral Agent (at the direction of the Required Purchasers) may direct. “Grantor” has the meaning assigned to such term in the preamble to this Agreement. “Note Purchase Agreement” has the meaning assigned to such term in the preamble to this Agreement. “Notes” has the meaning assigned to such term in the preamble to this Agreement. “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. “PPSA” means the Personal Property Security Act (Ontario) and the regulations thereunder provided, however, if attachment, perfection or priority of any Grantor’s security interests in any Collateral is governed by the personal property security laws of any jurisdiction in Canada other than the laws of the Province of Ontario, “PPSA” means those personal property security laws in such other jurisdiction in Canada for the purposes of the provisions hereof relating to such attachment, perfection or priority and for the definitions related to such provisions. “Purchasers” has the meaning assigned to such term in the preamble to this Agreement.


 
-4- CAN_DMS: \149670305\3 “Security Interest” means the security interest granted in the Collateral pursuant to the terms of this Agreement . “Secured Obligations” has the meaning assigned to such term in Section 2.01. “Secured Parties” has the meaning assigned to such term in the preamble to this Agreement. “STA” means the Securities Transfer Act (Ontario), as amended from time to time and all regulations thereunder, which act, including amendments thereto and any act substituted therefor and amendments thereto is herein referred to as the “STA”, provided, however, if the transfer of the Grantor’s securities is governed by securities transfer laws of any jurisdiction in Canada other than the laws of the Province of Ontario, “STA” means those securities transfer laws in such other jurisdiction in Canada for the purposes of the provisions hereof relating to such transfer of securities and for the definitions related to such provisions. “Termination Date” means the date on which the Notes and all other Obligations have been repaid and satisfied in full. “UCC” shall mean the New York UCC; provided, however, that, at any time, if by reason of mandatory provisions of law, any or all of the perfection, effect of perfection, non-perfection or priority of the Collateral Agent’s and the Secured Parties’ security interest in any item or portion of the Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection, non- perfection or priority and for purposes of definitions relating to such provisions. ARTICLE II Pledge of Securities SECTION 2.01. Pledge. As security for the performance by the Grantor of all the terms, covenants and agreements on the part of the Grantor to be performed under the Note Purchase Agreement, the Notes and the other Note Documents (as defined in the Note Purchase Agreement) (the “Secured Obligations”), the Grantor hereby pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a security interest in, all of the Grantor’s right, title and interest in, to and under: (a) (i) the Equity Interests issued by the Company owned by the Grantor on the date hereof, (ii) any other Equity Interests issued by the Company obtained in the future by the Grantor and (iii) the certificates or other instruments representing all such Equity Interests (if any) (collectively, the “Pledged Equity Interests”); (b) (i) the debt securities issued by the Company owned by the Grantor on the date hereof, (ii) any debt securities in the future issued to or otherwise acquired by the Grantor from the Company and (iii) the promissory notes and any other instruments evidencing all such debt securities (collectively, the “Pledged Debt Securities”); provided that, such Pledged Debt Securities shall not include any Pledged Debt Securities constituting Excluded Assets; (c) subject to Section 2.05, all payments of principal or interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect


 
-5- CAN_DMS: \149670305\3 of, in exchange for or upon the conversion of, and all other Proceeds received in respect of, the securities referred to in clauses (a) and (b) above; (d) subject to Section 2.05, all rights and privileges of the Grantor with respect to the securities and other property referred to in clauses (a), (b) and (c) above; and (e) all Proceeds of any of the foregoing to the extent such Proceeds would constitute property referred to in clauses (a) through (d) above (the items referred to in clauses (a) through (e) above being collectively referred to as the “Pledged Collateral”). Notwithstanding the foregoing, in no event shall the pledge under this Section 2.01 attach to any Excluded Asset. The Grantor and the Collateral Agent acknowledge that (i) value has been given, (ii) the Grantor has rights in the Collateral (other than after-acquired Collateral) or the power to transfer rights in the Collateral, and (iii) the parties have not agreed to postpone the time for attachment of the Security Interest. SECTION 2.02. Representations, Warranties and Covenants. The Grantor represents, warrants and covenants to and with the Collateral Agent, for the benefit of the Secured Parties, that: (a) Schedule I hereto includes a true and complete list of (i) all the Pledged Equity Interests owned by the Grantor and the percentage of the issued and outstanding units of each class of the Equity Interests of the issuer thereof represented by the Pledged Equity Interests owned by the Grantor and (ii) all the Pledged Debt Securities owned by the Grantor evidencing Debt for borrowed money; (b) (i) the Pledged Equity Interests have been duly and validly authorized and issued by the Company and (ii) the Pledged Equity Interests (if applicable) are fully paid and nonassessable; provided that the foregoing representations are made to the knowledge of the Grantor; (c) except for the security interests granted hereunder and under any other Note Documents, the Grantor (i) is and, subject to any transfers made in compliance with the Note Purchase Agreement, will continue to be the direct owner, beneficially and of record, of the Pledged Securities, (ii) holds the same free and clear of all Liens, other than Liens permitted pursuant to the Note Purchase Agreement and transfers made in compliance with the Note Purchase Agreement, (iii) will make no further assignment, pledge, hypothecation or transfer of, or create or permit to exist any security interest in or other Lien on, the Pledged Collateral, other than Liens permitted pursuant to the Note Purchase Agreement and transfers made in compliance with the Note Purchase Agreement, and (iv) will use commercially reasonable efforts to defend its title or interest thereto or therein against any and all Liens (other than the Liens created by this Agreement and the other Note Documents, Liens permitted pursuant to the Note Purchase Agreement), however arising, of all Persons whomsoever; (d) except for restrictions and limitations imposed or permitted by the Note Documents, contracts and agreements permitted by the Note Purchase Agreement, or securities laws generally, the Pledged Equity Interests are and will continue to be freely transferable and assignable, and none of the Pledged Equity Interests are or will be subject to any option, right of first refusal, shareholders agreement or organizational document provisions of any nature that would prohibit, impair, delay or otherwise affect in any manner adverse to the Secured Parties in any material respect the pledge of such Pledged Collateral hereunder, the sale or disposition thereof pursuant hereto or the exercise by the Collateral Agent of rights and remedies hereunder;


 
-6- CAN_DMS: \149670305\3 (e) as of the date hereof, Schedule III hereto sets forth (i) the type of organization of the Grantor, (ii) the jurisdiction of organization of the Grantor, (iii) the organizational identification or registration number of the Grantor, and (iv) the location of the chief executive office of the Grantor; (f) the Grantor has the organizational power and authority to pledge the Pledged Collateral pledged by it hereunder in the manner hereby done or contemplated; (g) by virtue of the execution and delivery by the Grantor of this Agreement, when any Pledged Securities are delivered to the Collateral Agent in accordance with this Agreement, the Collateral Agent will obtain a legal, valid and perfected lien upon and security interest in such Pledged Securities, free of any adverse claims (except for Liens permitted by the Note Purchase Agreement), under the PPSA to the extent such lien and security interest may be created and perfected under the PPSA, as security for the payment and performance of the Secured Obligations; (h) the financing statements, financing change statements, or other appropriate filings, recordings or registrations for filing in each governmental, municipal or other appropriate office specified on the schedules hereto, are all the filings, recordings and registrations that are necessary to establish a legal, valid and perfected security interest in favour of the Collateral Agent, for the benefit of the Secured Parties, in respect of all Collateral in which the Security Interest may be perfected by filing, recording or registration in Canada, and as of the date hereof, no further or subsequent filing, refiling, recording, rerecording, registration or reregistration is necessary, except as provided under applicable law with respect to the filing of continuation statements, financing change statements or other amendments thereto; (i) the Security Interest constitutes (i) a legal and valid security interest in all the Collateral securing the payment and performance of the Secured Obligations and (ii) subject to the filings described in paragraph (b) of this Section 3.02 (including payment of applicable fees in connection therewith), a perfected security interest in all Collateral in which a security interest may be perfected by filing, recording or registering a financing statement or analogous document in the applicable jurisdiction in the United States pursuant to the UCC or Canada pursuant to the PPR; (j) the Security Interest is and shall be prior to any other Lien on any of the Collateral, other than (i) any statutory or similar Lien that has priority as a matter of law, and (ii) Liens permitted pursuant to the Note Purchase Agreement; and (k) the Grantor has not filed or consented to the filing of any financing statement, financing change statement, or analogous document, in each case with respect to a Lien, under the UCC, the PPSA or any other applicable laws covering any Collateral except for Liens expressly permitted pursuant to the Note Purchase Agreement. SECTION 2.03. Subject to the terms of this Agreement and to the extent permitted by applicable law, the Grantor hereby agrees that upon the occurrence and during the continuance of an Event of Default, it will comply with the instructions of the Collateral Agent (at the direction of the Required Purchasers) with respect to the Equity Interests that constitute Pledged Equity hereunder that are not certificated without further consent by the applicable owner or holder of such Equity Interests.Registration in Nominee Name; Denominations. If an Event of Default shall have occurred and is continuing, the Collateral Agent (at the direction of the Required Purchasers), on behalf of the Secured Parties, shall have the right (in its sole and absolute discretion) to hold the Pledged Securities in the name of the Grantor, endorsed or assigned in blank or in favour of the Collateral Agent or in its own name as pledgee or in the name of its nominee (as pledgee or as sub-agent), and the Grantor will promptly give to the Collateral Agent


 
-7- CAN_DMS: \149670305\3 copies of any notices or other written communications received by it with respect to Pledged Securities registered in the name of the Grantor. Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent shall at all times have the right to exchange the certificates representing Pledged Securities for certificates of smaller or larger denominations for any reasonable purpose consistent with this Agreement. SECTION 2.05. Voting Rights; Dividends and Interest. (a) Unless and until an Event of Default shall have occurred: (i) the Grantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Securities or any part thereof for any purpose consistent with the terms of this Agreement, the Note Purchase Agreement and the other Note Documents; (ii) the Collateral Agent shall promptly execute and deliver to the Grantor, or cause to be promptly executed and delivered to the Grantor, all such proxies, powers of attorney and other instruments as the Grantor may reasonably request for the purpose of enabling the Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section; and (iii) the Grantor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Securities to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and are otherwise paid or distributed in accordance with, the terms and conditions of the Note Purchase Agreement, the other Note Documents and applicable laws; provided that any noncash dividends, interest, principal or other distributions that would constitute Pledged Equity Interests or Pledged Debt Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests in the issuer of any Pledged Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise, shall be and become part of the Pledged Collateral and, if received by the Grantor, shall be held for the benefit of the Collateral Agent and the other Secured Parties. (b) Upon the occurrence and during the continuance of an Event of Default, all rights of the Grantor to dividends, interest, principal or other distributions that the Grantor is authorized to receive pursuant to paragraph (a)(iii) of this Section 2.05 shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided that, the Collateral Agent shall have the right from time to time following the occurrence and during the continuance of an Event of Default to permit the Grantor to exercise such rights. All dividends, interest, principal or other distributions received by the Grantor upon the occurrence and during the continuance of an Event of Default contrary to the provisions of this Section 2.05 shall be held for the benefit of the Collateral Agent and the other Secured Parties and shall be segregated from other property or funds of the Grantor. Any and all money and other property paid over to or received by the Collateral Agent pursuant to the provisions of this paragraph (b) shall be retained by the Collateral Agent in an account to be established by the Collateral Agent upon receipt of such money or other property and shall be applied in accordance with the provisions of the Note Purchase Agreement. After all Events of Default have been cured or waived, the Collateral Agent shall promptly repay to the Grantor (without interest) all dividends, interest, principal or other distributions that the Grantor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 2.05 and that remain in such account.


 
-8- CAN_DMS: \149670305\3 (c) Upon the occurrence and during the continuance of an Event of Default, all rights of the Grantor to exercise the voting and consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 2.05, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 2.05, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Grantor to exercise such rights. After all Events of Default have been cured or waived, all rights vested in the Collateral Agent pursuant to this paragraph (c) shall automatically cease, and the Grantor shall automatically have the exclusive right to exercise the voting and consensual rights and powers they would otherwise be entitled to exercise pursuant to paragraph (a)(i) of this Section 2.05. SECTION 2.06. ULCs. Notwithstanding anything else contained in this Agreement or any other agreement among all or some of the parties, each Grantor is and shall remain the sole registered and beneficial owner of all Collateral that consists of shares of an unlimited company, an unlimited liability company or an unlimited liability corporation incorporated pursuant to, or otherwise governed by, the laws of any province of Canada (a “ULC”) until such time as the shares of the ULC (the “ULC Shares”) are transferred to the Collateral Agent or its nominee on the books and records of the ULC. Until then, the Grantor shall receive, for its own account, any dividends or other distributions in respect of ULC Shares that are Collateral and may vote such ULC Shares and control the direction, management and policies of any ULC to the same extent as it would if such ULC Shares were not pledged to the Collateral Agent. Nothing in this Agreement or any other agreement among all or some of the parties is intended to, or shall, constitute the Collateral Agent, a member or shareholder of a ULC for the purposes of the Companies Act (Nova Scotia), the Business Corporations Act (Ontario) or the Business Corporations Act (Alberta) until such time as notice is given by the Collateral Agent (at the direction of the Required Purchasers) to the Grantor and further steps are taken, at the request and direction of the Collateral Agent (at the direction of the Required Purchasers), to register the Collateral Agent or its nominee as the holder of such ULC Shares. If any provision of this Agreement would have the effect of constituting the Collateral Agent a member or shareholder of a ULC prior to such time, that provision shall be severed from this Agreement and ineffective with respect to shares of such ULC without otherwise invalidating or rendering unenforceable this Agreement as it relates to all other Collateral. SECTION 2.07. General CovenantsThe Grantor shall, at its own expense, take any and all commercially reasonable actions necessary to (i) defend title to the Collateral against all Persons and (ii) upon the reasonable request of the Collateral Agent, defend the Security Interest of the Collateral Agent in the Collateral and the priority thereof against any Lien, in each case subject to (x) Liens permitted pursuant to the Note Purchase Agreement, (y) transfers made in compliance with the Note Purchase Agreement and (z) the rights of the Grantor under Section 11.09 of the Note Purchase Agreement to obtain a release of the Liens created hereunder. (b) The Grantor hereby irrevocably authorizes the Collateral Agent (at the direction of the Required Purchasers) for the benefit of the Secured Parties at any time and from time to time to file in any relevant United States or Canadian jurisdiction any financing statements or financing change statement with respect to the Collateral or any part thereof and amendments thereto that (i) describe the collateral covered thereby in any manner that the Required Purchasers reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Collateral granted under this Agreement and (ii) contain the information required by Article 9 of the UCC or the PPSA for the filing of any financing statement, financing change statement, or amendment, including (A) whether the Grantor is an organization, the type of organization and, if required, any organizational identification number issued to the Grantor. The Grantor agrees to provide such information to the Collateral Agent promptly upon request.


 
-9- CAN_DMS: \149670305\3 (c) The Security Interest and the security interest granted pursuant to Article II are granted as security only and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of the Grantor with respect to or arising out of the Collateral. (d) The Grantor agrees, at its own expense, to execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions as the Collateral Agent (at the direction of the Required Purchasers) may from time to time reasonably request to obtain, preserve, protect and perfect the Security Interest and the rights and remedies created hereby, including the payment of any reasonable and documented or invoiced out-of-pocket fees and Taxes required in connection with the execution and delivery of this Agreement, the granting of the Security Interest and the filing of any financing statements or other documents in connection herewith or therewith; provided, however, the Grantor shall have no obligation to file any document or undertake any actions outside Canada or pursuant to any laws other than the laws of the United States or Canada. (e) At its option, the Collateral Agent may discharge past due taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the Collateral and not permitted pursuant to the Note Purchase Agreement, and may pay for the maintenance and preservation of the Collateral to the extent the Grantor fails to do so as required by the Note Purchase Agreement, this Agreement or any other Note Document and within a reasonable period of time after the Collateral Agent (at the direction of the Required Purchasers) has requested that it do so, and the Grantor agrees to reimburse the Collateral Agent, within 10 days after demand, for any reasonable payment made or expense incurred by the Collateral Agent pursuant to the foregoing authorization in accordance with Section 4.03(a); provided that nothing in this paragraph shall be interpreted as excusing the Grantor from the performance of, or imposing any obligation on the Collateral Agent or any Secured Party to cure or perform, any covenants or other promises of the Grantor with respect to taxes, assessments, charges, fees, Liens, security interests or other encumbrances and maintenance as set forth herein or in the other Note Documents. (f) Notwithstanding anything herein to the contrary, it is understood that the Grantor shall not be required by this Agreement to better assure, preserve, protect or perfect the Security Interest created hereunder by any means other than (i) filings (including financing statements or financing change statements) pursuant to the UCC, the PPR (or similar central filing office) of the relevant jurisdiction, and (ii) in the case of Collateral that constitutes Pledged Securities, Instruments, certificated securities (in each case not credited to a Securities Account), Tangible Chattel Paper or Negotiable Documents (other than those Instruments or Negotiable Documents held in the ordinary course of business), delivery thereof to the Collateral Agent in accordance with the terms hereof (together with, where applicable, undated stock or note powers or other undated proper instruments of assignment). The Grantor shall not be required to (i) complete any filings or other action with respect to the better assurance, preservation, protection or perfection of the security interests created hereby in any jurisdiction outside of the United States or Canada or enter into any security document governed by the laws of a jurisdiction other than the United States or Canada, or to reimburse the Collateral Agent for any costs incurred in connection with the same, (ii) deliver control agreements with respect to, or confer perfection by “control” (within the meaning of the STA) over, any Deposit Accounts, Securities Accounts or (iii) perfect the security interest in motor vehicles, airplanes and other assets subject to certificates of title other than by filings (including financing statements or financing change statement) pursuant to the UCC or the PPR (or similar central filing office) of the relevant jurisdiction.


 
-10- CAN_DMS: \149670305\3 ARTICLE III Remedies SECTION 3.01. Remedies upon Default. Upon the occurrence and during the continuance of an Event of Default, the Grantor agrees to deliver, on demand, each item of Collateral to the Collateral Agent (at the direction of the Required Purchasers) or any Person designated by the Collateral Agent, and it is agreed that the Collateral Agent (at the direction of the Required Purchasers) shall have the right to take any of or all the following actions at the same or different times: (a) with respect to any Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and conveyance of any of or all such Collateral by the Grantor to the Collateral Agent, for the benefit of the Secured Parties, or to license, whether on an exclusive or nonexclusive basis, any such Collateral throughout the world on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements or other agreement to the extent that waivers cannot be obtained), but in any event, on a revocable basis under terms whereby such license should terminate immediately upon cure of an Event of Default in connection with exercise of its remedies hereunder, and (b) subject to Section 2.04, with or without legal process and with or without prior notice or demand for performance, to take possession of the Collateral and the Pledged Collateral and without liability for trespass to enter any premises where the Collateral or the Pledged Collateral may be located for the purpose of taking possession of or removing the Collateral and the Pledged Collateral and, generally, to exercise any and all rights afforded to a secured party under the PPSA, the STA or other applicable law. Without limiting the generality of the foregoing, the 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 the Grantor, and the Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay and appraisal that the Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent (at the direction of the Required Purchasers) may also realize upon the Collateral and enforce its rights, by: (a) appointing a receiver (which term as used in this security agreement includes an interim receiver and a receiver and manager) or agent of all or any part of the Collateral and removing or replacing from time to time any receiver or agent and/or (b) instituting proceedings in any court of competent jurisdiction for the appointment of a receiver of all or any part of the Collateral. Any receiver appointed by the Collateral Agent shall be vested with all rights of the Collateral Agent and all of the remedies which could have been exercised by the Collateral Agent in respect of the Grantor or the Collateral and such other powers and discretions as are granted in the instrument of appointment and any supplemental instruments. The choice of receiver and its remuneration shall be within the sole discretion of the Collateral Agent. Any receiver appointed by the Collateral Agent shall act as agent for the Collateral Agent and the Purchasers for the purposes of taking possession of the Collateral, but otherwise and for all other purposes (except as provided below), as agent for the Grantor. The receiver may sell, lease, or otherwise dispose of Collateral as agent for the Grantor or as agent for the Collateral Agent as the Collateral Agent may determine in its sole discretion. The Grantor agrees to ratify and confirm all actions of the receiver acting as agent for the Grantor, and to release and indemnify the receiver in respect of all such actions. The Collateral Agent , in


 
-11- CAN_DMS: \149670305\3 appointing or refraining from appointing any receiver, shall not incur any liability to the receiver, the Grantor or any other Person and shall not be responsible for any misconduct or negligence of such Person. The Collateral Agent shall give the Grantor no less than ten (10) days’ prior written notice of the Collateral Agent’s intention to make any sale of Collateral. 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 (at the direction of the Required Purchasers) may (in its 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 (at the direction of the Required Purchasers) 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 the 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 the 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 the 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 3.01 shall be deemed to in accordance with any requirements under the PPSA or the STA or their equivalent in other jurisdictions. ARTICLE IV Miscellaneous SECTION 4.01. Notices. All communications and notices hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in the Note Purchase Agreement. SECTION 4.02. Waivers; Amendment. (a) No failure or delay by the Collateral Agent or any other Secured Party in exercising any right or power hereunder or under any other Note Document shall operate as a waiver thereof nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Collateral Agent and the Secured Parties hereunder and under the other Note Documents are cumulative and are not exclusive of any rights or remedies that the Collateral Agent or the other Secured Parties would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any Note Party therefrom shall


 
-12- CAN_DMS: \149670305\3 in any event be effective unless the same shall be permitted by paragraph (b) of this Section 4.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the purchase of a Note shall not be construed as a waiver of any Default hereunder, regardless of whether the Collateral Agent or any other Secured Party may have had notice or knowledge of such Default at the time. No notice or demand on any Note Party in any case shall entitle any Note Party to any other or further notice or demand in similar or other circumstances. (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Collateral Agent and the Grantor with respect to which such waiver, amendment or modification is to apply, subject to any consent required in accordance with the Note Purchase Agreement; provided that the Collateral Agent may, without the consent of any other Secured Party, consent to a departure by the Grantor from any covenant set forth herein to the extent such departure is consistent with the authority of the Collateral Agent or Collateral Agent set forth in the Note Purchase Agreement. SECTION 4.03. Collateral Agent’s Fees and Expenses; Indemnification. (a) The Grantor agrees to reimburse the Collateral Agent and the Purchasers for any Collateral Agent Expenses and Purchaser Expenses incurred hereunder as provided in Sections 2.4 and 2.5 of the Note Purchase Agreement and to indemnify the Collateral Agent and the Purchasers in accordance with Section 13.2(a) of the Note Purchase Agreement; provided that each reference therein to the “Issuer” shall be deemed to be a reference to “the Grantor”. (b) The provisions of this Section 4.03 shall remain operative and in full force and effect regardless of the termination of this Agreement or any other Note Document, the consummation of the transactions contemplated hereby or thereby, the repayment of any of the Secured Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Note Document, or any investigation made by or on behalf of any Secured Party. All amounts due under this Section 4.03 shall be payable not later than twenty (20) Business Days after written demand therefor; provided, however, any Indemnitee shall promptly refund an indemnification payment received hereunder to the extent that there is a final judicial determination that such Indemnitee was not entitled to indemnification with respect to such payment pursuant to this Section 4.03. Any such amounts payable as provided hereunder shall be additional Secured Obligations. SECTION 4.04. Successors and Assigns. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the permitted successors and assigns of such party, and all covenants, promises and agreements by or on behalf of the Grantor or the Collateral Agent that are contained in this Agreement shall bind and inure to the benefit of their respective successors and assigns. SECTION 4.05. Survival of Agreement. All covenants, agreements, representations and warranties made by the Grantor in this Agreement or any other Note Document and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Note Document shall be considered to have been relied upon by the Secured Parties and shall survive the execution and delivery of the Note Documents and the purchase of any Notes, regardless of any investigation made by or on behalf of any Secured Party and notwithstanding that the Collateral Agent, the Purchasers or any other Secured Party may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended under the Note Purchase Agreement or any other Note Document, and shall continue in full force and effect until the Termination Date has occurred, in each case, in accordance with and subject to the limitations set forth in the Note Purchase Agreement.


 
-13- CAN_DMS: \149670305\3 SECTION 4.06. Counterparts; Effectiveness; Several Agreement. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually signed counterpart of this Agreement. This Agreement shall become effective when a counterpart hereof executed on behalf of the Grantor and shall have been delivered to the Collateral Agent and a counterpart hereof shall have been executed on behalf of the Collateral Agent, and thereafter shall be binding upon the Grantor and the Collateral Agent and their respective permitted successors and assigns, and shall inure to the benefit of the Grantor, the Collateral Agent and the other Secured Parties and their respective successors and assigns, except that the Grantor shall not have the right to assign or transfer its rights or obligations hereunder or any interest herein (and any such assignment or transfer shall be void) except as expressly provided in this Agreement and the Note Purchase Agreement. SECTION 4.07. Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. SECTION 4.08. Right of Set-off. If an Event of Default under the Note Purchase Agreement shall have occurred and be continuing, each Purchaser and its respective Affiliates are hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency, but not withholding or payroll accounts, employee benefits accounts, de minimis accounts or other accounts used exclusively for taxes or fiduciary or trust purposes) at any time held and other obligations (in whatever currency) at any time owing by such Purchaser or any such Affiliate to or for the credit or the account of the Grantor against any of and all the obligations of the Grantor then due and owing under this Agreement held by such Purchaser, irrespective of whether or not such Purchaser shall have made any demand under this Agreement and although (i) such obligations may be contingent or unmatured and (ii) such obligations are owed to a branch or office of such Purchaser different from the branch or office holding such deposit or obligated on such Debt. The applicable Purchaser shall notify the Grantor and the Collateral Agent of such setoff and application; provided that any failure to give or any delay in giving such notice shall not affect the validity of any such setoff and application under this Section 4.08. The rights of each Purchaser and its Affiliates under this Section 4.08 are in addition to other rights and remedies (including other rights of setoff) that such Purchaser and its Affiliates may have. SECTION 4.09. Governing Law; Jurisdiction; Consent to Service of Process; Appointment of Service of Process Agent. (a) This Agreement shall be construed in accordance with and governed by the laws of the province of Ontario and the federal laws of Canada applicable therein. (b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the courts of the province of Ontario, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in the courts of Ontario. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Collateral Agent or any Purchaser may otherwise have to bring any action or proceeding relating to this Agreement against the Grantor or its respective properties in the courts of any jurisdiction.


 
-14- CAN_DMS: \149670305\3 (c) Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (b) of this Section 4.09. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. (d) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 4.01. NOTHING IN ANY THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. (e) THE GRANTOR HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS THE GRANTOR AS ITS AUTHORIZED DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS THAT MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING AND THE GRANTOR HEREBY ACCEPTS SUCH DESIGNATION AND APPOINTMENT. SECTION 4.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER NOTE DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT 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 AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4.10. SECTION 4.11. Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or to be taken into consideration in interpreting, this Agreement. SECTION 4.12. Security Interest Absolute. To the extent permitted by Law, all rights of the Collateral Agent hereunder, the Security Interest, the grant of a security interest in the Pledged Collateral and all obligations of the Grantor hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Note Purchase Agreement, any other Note Document, any agreement with respect to any of the Secured Obligations or any other agreement or instrument relating to any of the foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Secured Obligations, or any other amendment or waiver of or any consent to any departure from the Note Purchase Agreement, any other Note Document or any other agreement or instrument, (c) any exchange, release or non-perfection of any Lien on other collateral, or any release or amendment or waiver of or consent under or departure from any guarantee securing or guaranteeing all or any of the Secured Obligations or (d) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Grantor in respect of the Secured Obligations or this Agreement other than payment of the Secured Obligations in full.


 
-15- CAN_DMS: \149670305\3 SECTION 4.13. Termination or Release. (a) This Agreement, the Security Interest and all other security interests granted hereby shall terminate automatically upon the occurrence of the Termination Date. (b) In connection with any termination or release pursuant to paragraph (a) of this Section, the Collateral Agent shall execute and deliver to any Note Party, at such Note Party’s expense, all documents that such Note Party shall reasonably request to evidence such termination or release so long as the applicable Note Party shall have provided the Collateral Agent such certifications or documents required by the Note Purchase Agreement in order to demonstrate compliance with this Section 4.13. Any execution and delivery of documents by the Collateral Agent pursuant to this Section shall be without recourse to or warranty by the Collateral Agent or any other Secured Party. SECTION 4.14. Collateral Agent Appointed Attorney-in-Fact. The Grantor hereby makes, constitutes and appoints the Collateral Agent (and all officers, employees or agents designated by the Collateral Agent) the attorney-in-fact of the Grantor for the purpose of carrying out the provisions of this Agreement and taking any action and executing any instrument that the Collateral Agent may deem necessary or advisable to accomplish the purposes hereof at any time after and during the continuance of an Event of Default, which appointment is irrevocable (until termination of this Agreement in accordance with Section 4.13) and coupled with an interest. Without limiting the generality of the foregoing, the Collateral Agent shall have the right, but only upon the occurrence and during the continuance of an Event of Default, with full power of substitution either in the Collateral Agent’s name or in the name of the Grantor: (a) to receive, indorse, assign and/or deliver any and all notes, acceptances, cheques, drafts, money orders or other evidences of payment relating to the Collateral or any part thereof; (b) to demand, collect, receive payment of, give receipt for and give discharges and releases of all or any of the Collateral; (c) to sign the name of the Grantor on any invoice or bill of lading relating to any of the Collateral; (d) to send verifications of accounts receivable to any Account Debtor; (e) to commence and prosecute any and all suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect or otherwise realize on all or any of the Collateral or to enforce any rights in respect of any Collateral; (f) to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to all or any of the Collateral; (g) to the extent the Notes have been accelerated pursuant to the Note Purchase Agreement, to notify, or to require the Grantor to notify, Account Debtors to make payment directly to the Collateral Agent; (h) to use, sell, assign, transfer, pledge, make any agreement with respect to or otherwise deal with all or any of the Collateral, and to do all other acts and things necessary to carry out the purposes of this Agreement, as fully and completely as though the Collateral Agent were the absolute owner of the Collateral for all purposes, and (i) to make, settle and adjust claims in respect of Collateral under policies of insurance, indorsing the name of the Grantor on any cheque, draft, instrument or other item of payment for the proceeds of such policies of insurance and for making all determinations and decisions with respect thereto; provided that nothing herein contained shall be construed as requiring or obligating the Collateral Agent to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Collateral Agent, or to present or file any claim or notice, or to take any action with respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any property covered thereby. The Collateral Agent and the other Secured Parties shall be accountable only for amounts actually received as a result of the exercise of the powers granted to them herein, and neither they nor their officers, directors, employees or agents shall be responsible to the Grantor for any act or failure to act hereunder, except for their own gross negligence, bad faith or willful misconduct or that of any of their controlled Affiliates, directors, officers, employees, counsel, agents or attorneys-in-fact. The provisions of Exhibit C of the Note Purchase Agreement, including the rights, privileges, protections, benefits, indemnities and immunities of the Collateral Agent are incorporated herein, mutatis mutandis, as if a part hereof, and shall also apply to the Collateral Agent acting under or in connection with this Agreement. If the Collateral Agent has a right to take or omit to take any action hereunder, it shall exercise such right if so instructed by the Required Purchasers. With respect to any discretion, consent, approval or similar such action to be made, taken,


 
-16- CAN_DMS: \149670305\3 omitted to be taken or determined by the Collateral Agent under this Agreement (each an “Agent Determination”), such Agent Determination shall be made by the Collateral Agent at the direction of the Required Purchasers. SECTION 4.15. Further Assurances. The Grantor shall from time to time, whether before or after the pledge and security interest has become enforceable, do all acts and things and execute and deliver all transfers, assignments and agreements as the Collateral Agent (at the direction of the Required Purchasers) may reasonably require for (a) protecting the Collateral, (b) perfecting the Collateral and the security interest, (c) obtaining control of the Collateral, (d) exercising all powers, authorities and discretions conferred upon the Collateral Agent, and (e) otherwise enabling the Collateral Agent to obtain the full benefits of this security agreement and the rights and powers herein granted. The Grantor shall, from time to time after the pledge and security interest has become enforceable, do all acts and things and execute and deliver all transfers, assignments and agreements as the Collateral Agent (at the direction of the Required Purchasers) may require for facilitating the sale or other disposition of the Collateral in connection with its realization. SECTION 4.16. Judgment Currency. (a) If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due to a Secured Party in any currency (the “Original Currency”) into another currency (the “Other Currency”), the parties agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which, in accordance with normal banking procedures, such Secured Party could purchase the Original Currency with the Other Currency on the Business Day preceding the day on which final judgment is given or, if permitted by applicable law, on the day on which the judgment is paid or satisfied. (b) The obligations of the Grantor in respect of any sum due in the Original Currency from it to any Secured Party under this Agreement shall, notwithstanding any judgment in any Other Currency, be discharged only to the extent that on the Business Day following receipt by such Secured Party of any sum adjudged to be so due in the Other Currency, such Secured Party may, in accordance with normal banking procedures, purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to such Secured Party in the Original Currency, the Grantor agrees, as a separate obligation and notwithstanding the judgment, to indemnify such Secured Party against any loss, and, if the amount of the Original Currency so purchased exceeds the sum originally due to such Secured Party in the Original Currency, such Secured Party shall remit such excess the Grantor. [Remainder of Page Intentionally Left Blank]


 
[Signature Page to Pledge and Collateral Agreement] CAN_DMS: \149670305\3 IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written. BIRD GLOBAL, INC. By: /s/ Shane Torchiana Name: Shane Torchiana Title: President and Chief Executive Officer


 
[Signature Page to Pledge and Collateral Agreement] CAN_DMS: \149670305\3 U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Collateral Agent By: /s/ Brandon Bonfig Name: Brandon Bonfig Title: Vice President


 
CAN_DMS: \149670305\3 Form of Schedule I to the Pledge Agreement PLEDGED EQUITY INTERESTS Issuer Class of Stock Stock Certificate No. No. of Shares Percentage of Total Owned Percentage of Issuer’s Stock Pledged 1393631 B.C. Unlimited Liability Company Shares C-1 1 100% 100% PLEDGED DEBT SECURITIES 1. None


 
CAN_DMS: \149670305\3 Schedule II to the Pledge and Collateral Agreement Type of Organization, Jurisdiction of Organization, Registration. No., and Chief Executive Office Address Grantor Type of Organization Jurisdiction of Organization Registration No. Chief Executive Office Address Bird Global, Inc. Corporation Delaware 5876971 392 NE 191st Street, #20388, Miami, Florida


 

Execution Version CAN_DMS: \149647507\7 PLEDGE AND COLLATERAL AGREEMENT dated as of December 30, 2022 among BIRD CANADA INC. and 1393631 B.C. UNLIMITED LIABILITY COMPANY as Grantors and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Collateral Agent The indebtedness evidenced by this instrument or agreement is subject to the Subordination and Intercreditor Agreement, dated as of December 30, 2022 , by and among, inter alia, Midcap Financial Trust and U.S. Bank Trust Company, National Association and acknowledged by Bird Global, Inc., 1393631 B.C. Unlimited Liability Company, Bird Canada Inc., Bird Rides Inc., Bird US Opco, LLC, Bird US Holdco, LLC and Bird Rides International Holding, Inc.


 
CAN_DMS: \149647507\7 PLEDGE AND COLLATERAL AGREEMENT dated as of December 30, 2022 (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”) among Bird Canada Inc., an Ontario company and 1393631 B.C. Unlimited Liability Company, a British Columbia unlimited liability company (collectively, the “Grantors” and each a “Grantor”) and U.S. Bank Trust Company, National Association, as collateral agent for the Purchasers (the “Collateral Agent”) on behalf of the several purchasers from time to time party to the Note Purchase Agreement (as defined below) (the “Purchasers”, and together with the Collateral Agent, the “Secured Parties”). Reference is made to the note purchase agreement dated as of December 30, 2022 (as amended, restated, supplemented and otherwise modified from time to time, the “Note Purchase Agreement”) among Bird Global, Inc. (“Issuer”), the Purchasers and the Collateral Agent, pursuant to which Issuer has issued to Purchasers secured convertible notes (“Notes”). WHEREAS, the Purchasers (as defined in the Note Purchase Agreement) have agreed to purchase Notes subject to the terms and conditions set forth in the Note Purchase Agreement; WHEREAS, each of the Grantors is an Affiliate of the Issuer and has guaranteed the obligations of the Issuer under the Note Purchase Agreement pursuant to certain Guarantees, each dated as of December 30, 2022 (as amended, supplemented or modified from time to time a “Guarantee”, and collectively, the “Guarantees”); and WHEREAS, the Grantors 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 the Note Purchase Agreement and to purchase Notes as contemplated thereunder. 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 PPSA or the STA (each as defined herein), as applicable, have the same meanings when used herein (whether or not capitalized) and not defined in this Agreement or the Note Purchase Agreement shall have the meaning specified in the PPSA, including the following: “Account”; “Certificated Security”; “Chattel Paper”; “Consumer Goods” “Documents of Title”; “Equipment”; “Financial Asset”; “Fixtures”; “Futures Account”, “Goods”; “Instrument”; “Intangible”; “Inventory”; “Investment Property”; “Issuer”; “Proceeds”; “Securities”; “Securities Account”; “Securities Entitlements”; “Securities Intermediary” and “Chattel Paper”. (b) The rules of construction specified in Section 1 of 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 either of the Grantors under, with respect to or on account of an Account, Chattel Paper or Intangible.


 
-2- CAN_DMS: \149647507\7 “Agreement” has the meaning assigned to such term in the preamble to this Agreement. “Business Day” means a day other than a Saturday, Sunday, or other day on which banking institutions are authorized or required by law or regulation to close in the Province of Ontario. “Collateral” has the meaning assigned to such term in Section 3.01. “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. “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 Canada, whether as author, assignee, transferee or otherwise; (b) all registrations and applications for registration of any such copyrights in the United States or Canada, including registrations, supplemental registrations and pending applications for registration in the United States Copyright Office or the Canadian Intellectual Property Office or in any similar office or agency within Canada, 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. “Excluded Assets” means: (a) any real property or real property interests (including, without limitation, leasehold interests), (b) any governmental licenses or state or provincial 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 the PPSA (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, (c) 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 favour 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 the PPSA (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, (d) any assets or property to the extent granting, creating or perfecting a pledge, secu- rity 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 au- thority or third Person); provided that the foregoing exclusions in this clause (d) shall in no way be con- strued 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 the PPSA (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


 
-3- CAN_DMS: \149647507\7 or property described in the foregoing clauses (a), (b), and (c) shall constitute “Excluded Assets” only to the extent and for so long as such applicable licenses, franchises, charters, authorizations, laws, orders or regulations validly prohibit the creation of a Lien on such asset or property in favour of Collateral Agent, or the grant of a security interest in such lease, license or agreement or such property subject to such agree- ment would violate or invalidate such lease, license or agreement or create a right of termination in favour 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 (a), (b), or (c) hereof, as applicable, (e) any asset or property with respect to which the Collateral Agent (at the direction of the Required Purchasers) and the Grantors mutually determine that the costs of obtaining a security interest or Lien therein is excessive in relation to the practical benefit to the Purchasers of the security afforded thereby, (f) 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 de- termined by the Grantors and the Collateral Agent (at the direction of the Required Purchasers), (g) any assets or property not located in the United States or Canada that require action under the law of any jurisdiction not located in the United States or Canada to create or perfect a security interest or Lien in such asset or property, including any intellectual property registered in any non-Canada jurisdiction (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-Canada jurisdiction), (h) motor vehicles, airplanes, and other assets subject to certificates of title (excluding, for the avoidance of doubt, any electronic scooter vehicles or scooters), (i) 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 ex- clusions in this clause (j) shall in no way be construed to apply to the extent that the prohibition is unen- forceable under Sections 9-406, 9-407, 9-408, or 9-409 of the UCC or the PPSA (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law or principles of equity (in each case, unless preempted); and (k) consumer goods; and (l) the last day of the term of any lease or sublease or any agreement for a lease or sublease, now held or hereafter acquired by a Grantor in respect of real property, but such Grantor shall stand possessed of any such last day upon trust to assign and dispose of it as the Collateral Agent (at the direction of the Required Purchasers) may direct. “Grantor” and “Grantors” have the meaning assigned to such terms in the preamble to this Agreement. “Guarantee” and “Guarantees” have the meaning assigned to such terms in the preamble to this Agreement.


 
-4- CAN_DMS: \149647507\7 “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, con- fidential or proprietary technical, business or other information, and software and databases. “Intellectual Property Security Agreement” means the short-form Intellectual Property Security Agreement substantially in the form of Exhibit I hereto. “Issuer” has the meaning assigned to such term in the preamble to this Agreement. “License” means any Patent License, Trademark License or Copyright License. “Note Purchase Agreement” has the meaning assigned to such term in the preamble to this Agreement. “Notes” 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. “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 or Canada, and all applications for letters patent of the United States or Canada, 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. “PPSA” means the Personal Property Security Act (Ontario) and the regulations thereunder provided, however, if attachment, perfection or priority of any Grantor’s security interests in any Collateral is governed by the personal property security laws of any jurisdiction in Canada other than the laws of the Province of Ontario, “PPSA” means those personal property security laws in such other jurisdiction in Canada for the purposes of the provisions hereof relating to such attachment, perfection or priority and for the definitions related to such provisions. “Purchasers” has the meaning assigned to such term in the preamble to this Agreement. “Security Interest” has the meaning assigned to such term in Section 3.01(a). “Secured Obligations” has the meaning assigned to such term in Section 2.01.


 
-5- CAN_DMS: \149647507\7 “Secured Parties” has the meaning assigned to such term in the preamble to this Agreement. “STA” means the Securities Transfer Act (Ontario), as amended from time to time and all regulations thereunder, which act, including amendments thereto and any act substituted therefor and amendments thereto is herein referred to as the “STA”. provided, however, if the transfer of any Grantor’s securities is governed by securities transfer laws of any jurisdiction in Canada other than the laws of the Province of Ontario, “STA” means those securities transfer laws in such other jurisdiction in Canada for the purposes of the provisions hereof relating to such transfer of securities and for the definitions related to such provisions. “Termination Date” means the earliest of (a) the date on which the Notes and all other Obligations have been repaid and satisfied in full and (b) the termination of the Guarantees in accordance with each of their terms, as applicable. “Trademark License” means any written agreement, now or hereafter in effect, granting to any Person any right to use any Trademark now or hereafter owned by any other Person or that any other Person otherwise has the right to license and all rights of any such Person under any such agreement. “Trademarks” means, with respect to any Person, all of the following now owned or hereafter acquired by such Person: (a) all United States or Canadian trademarks, service marks, trade names, corporate names, company names, business names, fictitious business names, trade dress, logos, other source or business identifiers, designs and general intangibles of like nature, in each case subject to trademark laws of the United States or Canada, now existing or hereafter adopted or acquired, all registrations therefor, and all registrations and applications filed in connection therewith, including registrations and applications in the United States Patent and Trademark or the Canadian Intellectual Property Office, and all renewals thereof; (b) all goodwill associated with or symbolized by the foregoing; and (c) all claims for, and rights to sue for, past or future infringements, dilutions or other violations of any of the foregoing. “UCC” shall mean the New York UCC; provided, however, that, at any time, if by reason of mandatory provisions of law, any or all of the perfection, effect of perfection, non-perfection or priority of the Collateral Agent’s and the Secured Parties’ security interest in any item or portion of the Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection, non- perfection or priority and for purposes of definitions relating to such provisions. ARTICLE II Pledge of Securities SECTION 2.01. Pledge. As security for the performance by each Grantor of all the terms, covenants and agreements on the part of such Grantor to be performed under the Guarantee to which it is a party (the “Secured Obligations”), such Grantor hereby pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a security interest in, all of such Grantor’s right, title and interest in, to and under:


 
-6- CAN_DMS: \149647507\7 (a) (i) the Equity Interests owned by such Grantor on the date hereof, (ii) any other Equity Interests obtained in the future by such Grantor and (iii) the certificates or other instruments representing all such Equity Interests (if any) (collectively, the “Pledged Equity Interests”); (b) (i) the debt securities owned by such Grantor on the date hereof, (ii) any debt securities in the future issued to or otherwise acquired by such Grantor and (iii) the promissory notes and any other instruments evidencing all such debt securities (collectively, the “Pledged Debt Securities”); provided that, such Pledged Debt Securities shall not include any Pledged Debt Securities constituting Excluded Assets; (c) subject to Section 2.05, all payments of principal or interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of, in exchange for or upon the conversion of, and all other Proceeds received in respect of, the securities referred to in clauses (a) and (b) above; (d) subject to Section 2.05, all rights and privileges of such Grantor with respect to the securities and other property referred to in clauses (a), (b) and (c) above; and (e) all Proceeds of any of the foregoing to the extent such Proceeds would constitute property referred to in clauses (a) through (d) above (the items referred to in clauses (a) through (e) above being collectively referred to as the “Pledged Collateral”). Notwithstanding the foregoing, in no event shall the pledge under this Section 2.01 attach to any Excluded Asset. SECTION 2.02. Representations, Warranties and Covenants. Each of the Grantors represents, warrants and covenants to and with the Collateral Agent, for the benefit of the Secured Parties, that: (a) Schedule I hereto includes a true and complete list of (i) all the Pledged Equity Interests owned by the Grantors and the percentage of the issued and outstanding units of each class of the Equity Interests of the issuer thereof represented by the Pledged Equity Interests owned by the Grantors and (ii) all the Pledged Debt Securities owned by the Grantors evidencing Debt for borrowed money; (b) (i) the Pledged Equity Interests have been duly and validly authorized and issued by the issuers thereof (if applicable) and (ii) the Pledged Equity Interests (if applicable) are fully paid and nonassessable; provided that the foregoing representations are made to the knowledge of the Grantors; (c) except for the security interests granted hereunder and under any other Note Documents, each of the Grantors (i) is and, subject to any transfers made in compliance with the Note Purchase Agreement, will continue to be the direct owner, beneficially and of record, of the Pledged Securities, (ii) holds the same free and clear of all Liens, other than Liens permitted pursuant to the Note Purchase Agreement and transfers made in compliance with the Note Purchase Agreement, (iii) will make no further assignment, pledge, hypothecation or transfer of, or create or permit to exist any security interest in or other Lien on, the Pledged Collateral, other than Liens permitted pursuant to the Note Purchase Agreement and transfers made in compliance with the Note Purchase Agreement, and (iv) will use commercially reasonable efforts to defend its title or interest thereto or therein against any and all Liens (other than the Liens created by this Agreement and the other Note Documents, Liens permitted pursuant to the Note Purchase Agreement), however arising, of all Persons whomsoever;


 
-7- CAN_DMS: \149647507\7 (d) except for restrictions and limitations imposed or permitted by the Note Documents, contracts and agreements permitted by the Note Purchase Agreement, or securities laws generally, the Pledged Equity Interests are and will continue to be freely transferable and assignable, and none of the Pledged Equity Interests are or will be subject to any option, right of first refusal, shareholders agreement or organizational document provisions of any nature that would prohibit, impair, delay or otherwise affect in any manner adverse to the Secured Parties in any material respect the pledge of such Pledged Collateral hereunder, the sale or disposition thereof pursuant hereto or the exercise by the Collateral Agent of rights and remedies hereunder; (e) each of the Grantors has the organizational power and authority to pledge the Pledged Collateral pledged by it hereunder in the manner hereby done or contemplated; (f) by virtue of the execution and delivery by each Grantor of this Agreement, when any Pledged Securities owned by such Grantor are delivered to the Collateral Agent in accordance with this Agreement, the Collateral Agent will obtain a legal, valid and perfected lien upon and security interest in such Pledged Securities, free of any adverse claims (except for Liens permitted by the Note Purchase Agreement), under the PPSA to the extent such lien and security interest may be created and perfected under the PPSA, as security for the payment and performance of the Secured Obligations; and (g) subject to the terms of this Agreement and to the extent permitted by applicable law, each of the Grantors hereby agrees that upon the occurrence and during the continuance of an Event of Default, it will comply with the instructions of the Collateral Agent (at the direction of the Required Purchasers) with respect to the Equity Interests that constitute Pledged Equity hereunder that are not certificated without further consent by the applicable owner or holder of such Equity Interests. SECTION 2.03. Registration in Nominee Name; Denominations. If an Event of Default shall have occurred and is continuing, the Collateral Agent (at the direction of the Required Purchasers), on behalf of the Secured Parties, shall have the right (in its sole and absolute discretion) to hold the Pledged Securities in the name of the applicable Grantor, endorsed or assigned in blank or in favour of the Collateral Agent or in its own name as pledgee or in the name of its nominee (as pledgee or as sub- agent), and the applicable Grantor will promptly give to the Collateral Agent copies of any notices or other written communications received by it with respect to Pledged Securities registered in the name of the applicable Grantor. Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent shall at all times have the right to exchange the certificates representing Pledged Securities for certificates of smaller or larger denominations for any reasonable purpose consistent with this Agreement. SECTION 2.04. Voting Rights; Dividends and Interest. (a) Unless and until an Event of Default shall have occurred: (i) each Grantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Securities owned by such Grantor or any part thereof for any purpose consistent with the terms of this Agreement, the Note Purchase Agreement and the other Note Documents; (ii) the Collateral Agent shall promptly execute and deliver to such Grantor, or cause to be promptly executed and delivered to the Grantors, all such proxies, powers of attorney and other instruments as such Grantor may reasonably request for the purpose of enabling such Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section; and


 
-8- CAN_DMS: \149647507\7 (iii) such Grantor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Securities to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and are otherwise paid or distributed in accordance with, the terms and conditions of the Note Purchase Agreement, the other Note Documents and applicable laws; provided that any noncash dividends, interest, principal or other distributions that would constitute Pledged Equity Interests or Pledged Debt Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests in the issuer of any Pledged Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise, shall be and become part of the Pledged Collateral and, if received by such Grantor, shall be held for the benefit of the Collateral Agent and the other Secured Parties. (b) Upon the occurrence and during the continuance of an Event of Default, all rights of each of the Grantors to dividends, interest, principal or other distributions that the applicable Grantor is authorized to receive pursuant to paragraph (a)(iii) of this Section 2.04 shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided that, the Collateral Agent shall have the right from time to time following the occurrence and during the continuance of an Event of Default to permit the applicable Grantor to exercise such rights. All dividends, interest, principal or other distributions received by either of the Grantors upon the occurrence and during the continuance of an Event of Default contrary to the provisions of this Section 2.04 shall be held for the benefit of the Collateral Agent and the other Secured Parties and shall be segregated from other property or funds of the applicable Grantor. Any and all money and other property paid over to or received by the Collateral Agent pursuant to the provisions of this paragraph (b) shall be retained by the Collateral Agent in an account to be established by the Collateral Agent upon receipt of such money or other property and shall be applied in accordance with the provisions of the Note Purchase Agreement. After all Events of Default have been cured or waived, the Collateral Agent shall promptly repay to the applicable Grantor (without interest) all dividends, interest, principal or other distributions that such Grantor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 2.04 and that remain in such account. (c) Upon the occurrence and during the continuance of an Event of Default, all rights of each of the Grantors to exercise the voting and consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 2.04, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 2.04, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Grantors to exercise such rights. After all Events of Default have been cured or waived, all rights vested in the Collateral Agent pursuant to this paragraph (c) shall automatically cease, and the Grantors shall automatically have the exclusive right to exercise the voting and consensual rights and powers they would otherwise be entitled to exercise pursuant to paragraph (a)(i) of this Section 2.04. SECTION 2.05. ULCs. Notwithstanding anything else contained in this Agreement or any other agreement among all or some of the parties, each Grantor is and shall remain the sole registered and beneficial owner of all Collateral that consists of shares of an unlimited company, an unlimited liability company or an unlimited liability corporation incorporated pursuant to, or otherwise governed by, the laws of any province of Canada (a “ULC”) until such time as the shares of the ULC (the “ULC Shares”) are transferred to the Collateral Agent or its nominee on the books and records of the ULC. Until then, the applicable Grantor shall receive, for its own account, any dividends or other distributions in respect of ULC Shares that are Collateral and may vote such ULC Shares and control the direction, management and


 
-9- CAN_DMS: \149647507\7 policies of any ULC to the same extent as it would if such ULC Shares were not pledged to the Collateral Agent. Nothing in this Agreement or any other agreement among all or some of the parties is intended to, or shall, constitute the Collateral Agent, a member or shareholder of a ULC for the purposes of the Companies Act (Nova Scotia), the Business Corporations Act (Ontario) or the Business Corporations Act (Alberta) until such time as notice is given by the Collateral Agent (at the direction of the Required Purchasers) to such Grantor and further steps are taken, at the request and direction of the Collateral Agent (at the direction of the Required Purchasers), to register the Collateral Agent or its nominee as the holder of such ULC Shares. If any provision of this Agreement would have the effect of constituting the Collateral Agent a member or shareholder of a ULC prior to such time, that provision shall be severed from this Agreement and ineffective with respect to shares of such ULC without otherwise invalidating or rendering unenforceable this Agreement as it relates to all other Collateral. ARTICLE III Security Interests in Personal Property SECTION 3.01. Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Secured Obligations, each of the Grantors hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title and interest in, to and under all of such Grantor’s present and after acquired personal property, wherever located and whether now existing or owned or hereafter acquired or arising, including the following property (collectively, the “Collateral”): (i) all Accounts; (ii) all Chattel Paper; (iii) all Documents of Title; (iv) all Equipment; (v) all Intangibles, including without limitation all Intellectual Property; (vi) all Instruments (including, without limitation, promissory notes); (vii) all Inventory; (viii) all other Goods; (ix) all Investment Property; (x) all Pledged Collateral; (xi) all Books and records pertaining to the Collateral; and (xii) to the extent not otherwise included, all Proceeds and products, collateral security and guarantees given by any Person with respect to any of the foregoing; provided that in no event shall the Security Interest attach to (A) any Excluded Asset or (B) any asset owned by such Grantor that the Issuer and the Collateral Agent (at the direction of the Required Purchasers) shall have agreed in writing to exclude from being Collateral on account of the cost of creating a security interest


 
-10- CAN_DMS: \149647507\7 in such asset hereunder being excessive in view of the benefits to be obtained by the Secured Parties therefrom. It is understood that, to the extent the Security Interest shall not have attached to any such asset as a result of clauses (A) or (B) above, the term “Collateral” shall not include any such asset; provided, however, that Collateral shall include any Proceeds, substitutions or replacements of any of the foregoing (unless such Proceeds, substitutions or replacements would constitute property referred to in clauses (A) or (B)). (b) each Grantor hereby irrevocably authorizes the Collateral Agent (at the direction of the Required Purchasers) for the benefit of the Secured Parties at any time and from time to time to file in any relevant United States or Canadian jurisdiction any financing statements or financing change statement with respect to the Collateral or any part thereof and amendments thereto that (i) describe the collateral covered thereby in any manner that the Required Purchasers reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Collateral granted under this Agreement, including indicating the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the UCC or the PPSA for the filing of any financing statement, financing change statement, or amendment, including (A) whether such Grantor is an organization, the type of organization and, if required, any organizational identification number issued to such Grantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon request. The Collateral Agent (at the direction of the Required Purchasers) is further authorized to file the Intellectual Property Security Agreement, with the United States Patent and Trademark Office or United States Copyright Office (or any successor office in the United States), the Canadian Intellectual Property Office or in any similar office or agency (but not in any other country), as applicable, and any such additional documents pursuant to Section 3.04(b) as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in Collateral consisting of Patents, Trademarks or Copyrights issued, registered or applied-for in Canada, granted by the applicable Grantor and naming the applicable Grantor as debtor and the Collateral Agent as a Secured Party. (c) The Security Interest and the security interest granted pursuant to Article II are granted as security only and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of the Grantors with respect to or arising out of the Collateral. (d) Each Grantor and the Collateral Agent acknowledge that (i) value has been given, (ii) each of the Grantors has rights in the applicable Collateral (other than after-acquired Collateral) or the power to transfer rights in the Collateral, and (iii) the parties have not agreed to postpone the time for attachment of the Security Interest. SECTION 3.02. Representations and Warranties. Each Grantor represents and warrants to the Collateral Agent, for the benefit of the Secured Parties, that: (a) each Grantor has good title or valid leasehold interests in the Collateral with respect to which it has purported to grant a Security Interest hereunder free and clear of any Liens, (i) except for Liens expressly permitted pursuant to the Note Purchase Agreement and (ii) except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or as proposed to be conducted or to utilize such properties for their intended purposes, in each case to the extent the failure to have such good title or valid leasehold interest could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and has full power and authority to grant to the Collateral Agent, for the benefit of the Secured Parties, the Security Interest in such Collateral pursuant hereto and to execute, deliver and perform its obligations in accordance with the terms of this Agreement, without the consent or approval of any other Person other than any consent or approval that has been obtained and except to the


 
-11- CAN_DMS: \149647507\7 extent that failure to obtain or make such consent or approval, as the case may be, individually or in aggregate, could not reasonably be expected to have a Material Adverse Effect; (b) the financing statements, financing change statements, or other appropriate filings, recordings or registrations for filing in each governmental, municipal or other appropriate office specified on the schedules hereto, are all the filings, recordings and registrations (other than filings, recordings and registrations, if any, required to be made in the United States Patent and Trademark Office or the United States Copyright Office or with the Canadian Intellectual Property Office in order to perfect the Security Interest in Collateral consisting of Patents, Trademarks or Copyrights) that are necessary to establish a legal, valid and perfected security interest in favour of the Collateral Agent, for the benefit of the Secured Parties, in respect of all Collateral in which the Security Interest may be perfected by filing, recording or registration in Canada, and as of the date hereof, no further or subsequent filing, refiling, recording, rerecording, registration or reregistration is necessary, except as provided under applicable law with respect to the filing of continuation statements, financing change statements or other amendments thereto (other than such actions as are necessary to perfect the Security Interest with respect to any Collateral consisting of issued, registered or applied-for Patents, Trademarks and Copyrights filed, acquired or developed by any of the Grantors after the date hereof); (c) the Security Interest constitutes (i) a legal and valid security interest in all the Collateral securing the payment and performance of the Secured Obligations and (ii) subject to the filings described in paragraph (b) of this Section 3.02 (including payment of applicable fees in connection therewith), a perfected security interest in all Collateral in which a security interest may be perfected by filing, recording or registering a financing statement or analogous document in the applicable jurisdiction in the United States pursuant to the UCC or Canada pursuant to the PPR; (d) the Security Interest is and shall be prior to any other Lien on any of the Collateral, other than (i) any statutory or similar Lien that has priority as a matter of law, and (ii) Liens permitted pursuant to the Note Purchase Agreement; (e) as of the date hereof, all material Intellectual Property of each Grantor is subsisting and has not been adjudged invalid or unenforceable in whole or in part and is valid and enforceable, and such Grantor has made or performed all commercially reasonable acts, including without limitation filings, recordings and payment of all required fees and taxes, required to maintain and protect its interest in its material Intellectual Property in full force and effect in Canada; (f) as of the date hereof, Schedule III hereto sets forth (i) the type of organization of each Grantor, (ii) the jurisdiction of organization of each Grantor, (iii) the organizational identification or registration number of each Grantor, and (iv) the location of the chief executive office of each Grantor; and (g) each Grantor has not filed or consented to (i) the filing of any financing statement, financing change statement, or analogous document, in each case with respect to a Lien, under the UCC, the PPSA or any other applicable laws covering any Collateral or (ii) any assignment in which such Grantor assigns any Collateral or any security agreement or similar instrument covering any Collateral with the United States Patent and Trademark Office, the United States Copyright Office or the Canadian Intellectual Property Office or in any similar office or agency within Canada, except, in each case, for Liens expressly permitted pursuant to the Note Purchase Agreement. SECTION 3.03. Covenants. (a) Each Grantor shall, at its own expense, take any and all commercially reasonable actions necessary to (i) defend title to the applicable Collateral (other than Intellectual Property, which is governed by Section 3.04) against all Persons, except with respect to Collateral that such Grantor determines in its reasonable business judgment is no longer necessary or


 
-12- CAN_DMS: \149647507\7 beneficial to the conduct of such Grantor’s business (provided that nothing in this Agreement shall prevent such Grantor from discontinuing the operation or maintenance of any of its assets or properties to the extent not prohibited by the Note Purchase Agreement) and (ii) upon the reasonable request of the Collateral Agent (at the direction of the Required Purchasers), defend the Security Interest of the Collateral Agent in the Collateral and the priority thereof against any Lien, in each case subject to (x) Liens permitted pursuant to the Note Purchase Agreement, (y) transfers made in compliance with the Note Purchase Agreement and (z) the rights of such Grantor under Section 11.09 of the Note Purchase Agreement to obtain a release of the Liens created hereunder. (b) Each Grantor agrees, at its own expense, to execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions as the Collateral Agent (at the direction of the Required Purchasers) may from time to time reasonably request to obtain, preserve, protect and perfect the Security Interest and the rights and remedies created hereby, including the payment of any reasonable and documented or invoiced out-of-pocket fees and Taxes required in connection with the execution and delivery of this Agreement, the granting of the Security Interest and the filing of any financing statements or other documents in connection herewith or therewith; provided, however, each Grantor shall have no obligation to file any document or undertake any actions outside Canada or pursuant to any laws other than the laws of the United States or Canada. (c) At its option, the Collateral Agent may discharge past due taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the Collateral and not permitted pursuant to the Note Purchase Agreement, and may pay for the maintenance and preservation of the Collateral to the extent either Grantor fails to do so as required by the Note Purchase Agreement, this Agreement or any other Note Document and within a reasonable period of time after the Collateral Agent (at the direction of the Required Purchasers) has requested that it do so, and the Grantors agree to reimburse the Collateral Agent, within 10 days after demand, for any reasonable payment made or expense incurred by the Collateral Agent pursuant to the foregoing authorization in accordance with Section 5.03(a); provided that nothing in this paragraph shall be interpreted as excusing the Grantors from the performance of, or imposing any obligation on the Collateral Agent or any Secured Party to cure or perform, any covenants or other promises of the Grantors with respect to taxes, assessments, charges, fees, Liens, security interests or other encumbrances and maintenance as set forth herein or in the other Note Documents. (d) Notwithstanding anything herein to the contrary, it is understood that the Grantors shall not be required by this Agreement to better assure, preserve, protect or perfect the Security Interest created hereunder by any means other than (i) filings (including financing statements or financing change statements) pursuant to the UCC, the PPR (or similar central filing office) of the relevant jurisdiction, (ii) filings with the United States Patent and Trademark the United States Copyright Office or the Canadian Intellectual Property Office or in any similar office or agency, in respect of registered or applied-for Patents, Trademarks or Copyrights, (iii) in the case of Collateral that constitutes Pledged Securities, Instruments, certificated securities (in each case not credited to a Securities Account), Tangible Chattel Paper or Negotiable Documents (other than those Instruments or Negotiable Documents held in the ordinary course of business), delivery thereof to the Collateral Agent in accordance with the terms hereof (together with, where applicable, undated stock or note powers or other undated proper instruments of assignment) and (iv) other actions to the extent required by Section 3.04(b) (solely with respect to the second sentence thereof) or Section 3.04 hereunder. The Grantors shall not be required to (i) complete any filings or other action with respect to the better assurance, preservation, protection or perfection of the security interests created hereby in any jurisdiction outside of the United States or Canada or enter into any security document governed by the laws of a jurisdiction other than the United States or Canada, or to reimburse the Collateral Agent for any costs incurred in connection with the same, (ii) deliver control agreements with respect to, or confer perfection by “control” (within the meaning of the STA) over, any Deposit Accounts, Securities


 
-13- CAN_DMS: \149647507\7 Accounts or (iii) perfect the security interest in motor vehicles, airplanes and other assets subject to certificates of title other than by filings (including financing statements or financing change statement) pursuant to the UCC or the PPR (or similar central filing office) of the relevant jurisdiction. (e) Schedule II hereto includes a true and complete list of all of the Grantors’ Patents and Trademarks applied for or issued or registered with the United States Patent and Trademark Office or the Canadian Intellectual Property Office or in any similar office or agency, including the name of the registered owner or applicant and the registration, application, or publication number, as applicable, of each such Patent or Trademark and all of the Grantors’ Copyrights applied for or registered with the United States Copyright Office or the Canadian Intellectual Property Office or in any similar office or agency, including the name of the registered owner and the registration number of each such Copyright. SECTION 3.04. Covenants Regarding Patent, Trademark and Copyright Collateral. (a) Each Grantor agrees to take commercially reasonable steps to (i) maintain the validity and enforceability of any Canadian issued or registered Intellectual Property (or applications therefor) that is material to the conduct of such Grantor’s business and to maintain such registrations and applications of such Intellectual Property in full force and effect and (ii) pursue the registration and, to the extent such Grantor determine in its reasonable business judgment that maintenance of such Intellectual Property is desirable in the conduct of its business, maintenance of each patent, trademark or copyright registration or application included in the Intellectual Property of such Grantor. Each Grantor shall take commercially reasonable steps to defend title to and ownership of any Intellectual Property that is owned by such Grantor and is material to the conduct of such Grantor’s business. (b) Each Grantor shall notify the Collateral Agent as promptly as reasonably practicable if it knows, after due inquiry, that (i) any application or registration relating to any material Intellectual Property is likely to become forfeited, abandoned or dedicated to the public, or of any materially adverse determination or development related to such application or registration (including the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office, the United States Copyright Office or the Canadian Intellectual Property Office or in any similar office or agency or any court or tribunal in any country, but excluding any ordinary course office actions) regarding such Grantor’s ownership of, right to use, interest in, or the validity of, any material Intellectual Property owned by such Grantor or such Grantor’s right to register the same or to own and maintain the same or (ii) any action or proceeding, to the extent such action is not dismissed within thirty (30) days, that seeks to limit or cancel, or challenge the validity of, any material Intellectual Property owned by such Grantor or such Grantor’s ownership interest therein is pending or, to the knowledge of such Grantor, threatened. (c) Each Grantor agrees that, should it (i) obtain an ownership or other interest in any Intellectual Property after the date hereof, or (ii) file any application for the registration or issuance of any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office or the Canadian Intellectual Property Office or in any similar office or agency within Canada (the items in clauses (i) and (ii), collectively, the “After-Acquired Intellectual Property”), then the provisions of this Agreement shall automatically apply thereto and any such After-Acquired Intellectual Property shall automatically become Intellectual Property subject to the terms and conditions of this Agreement. For the avoidance of doubt, a security interest shall not be granted in any Intellectual Property that constitutes an Excluded Asset.


 
-14- CAN_DMS: \149647507\7 ARTICLE IV Remedies SECTION 4.01. Remedies upon Default. Upon the occurrence and during the continuance of an Event of Default, each Grantor agrees to deliver, on demand, each item of Collateral to the Collateral Agent or any Person designated by the Collateral Agent, and it is agreed that the Collateral Agent (at the direction of the Required Purchasers) shall have the right to take any of or all the following actions at the same or different times: (a) with respect to any Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and conveyance of any of or all such Collateral by each Grantor to the Collateral Agent, for the benefit of the Secured Parties, or to license, whether on an exclusive or nonexclusive basis, any such Collateral throughout the world on such terms and conditions and in such manner as the Collateral Agent shall determine (other than in violation of any then-existing licensing arrangements or other agreement to the extent that waivers cannot be obtained), but in any event, on a revocable basis under terms whereby such license should terminate immediately upon cure of an Event of Default in connection with exercise of its remedies hereunder, and (b) subject to Section 2.04, with or without legal process and with or without prior notice or demand for performance, to take possession of the Collateral and the Pledged Collateral and without liability for trespass to enter any premises where the Collateral or the Pledged Collateral may be located for the purpose of taking possession of or removing the Collateral and the Pledged Collateral and, generally, to exercise any and all rights afforded to a secured party under the PPSA, the STA or other applicable law. 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 the applicable Grantor, and the applicable Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay and appraisal that the applicable Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent (at the direction of the Required Purchasers) may also realize upon the Collateral and enforce its rights, by: (a) appointing a receiver (which term as used in this security agreement includes an interim receiver and a receiver and manager) or agent of all or any part of the Collateral and removing or replacing from time to time any receiver or agent and/or (b) instituting proceedings in any court of competent jurisdiction for the appointment of a receiver of all or any part of the Collateral. Any receiver appointed by the Collateral Agent shall be vested with all rights of the Collateral Agent and all of the remedies which could have been exercised by the Collateral Agent in respect of the Grantors or the Collateral and such other powers and discretions as are granted in the instrument of appointment and any supplemental instruments. The choice of receiver and its remuneration shall be within the sole discretion of the Collateral Agent. Any receiver appointed by the Collateral Agent shall act as agent for the Collateral Agent and the Purchasers for the purposes of taking possession of the Collateral, but otherwise and for all other purposes (except as provided below), as agent for the Grantors. The receiver may sell, lease, or otherwise dispose of Collateral as agent for the Grantors or as agent for the Collateral Agent as the Collateral Agent may determine in its sole discretion. The Grantors agree to ratify and confirm all actions of the receiver acting as agent for the Grantors, and to release and indemnify the receiver in respect of all such actions. The


 
-15- CAN_DMS: \149647507\7 Collateral Agent, in appointing or refraining from appointing any receiver, shall not incur any liability to the receiver, the Grantors or any other Person and shall not be responsible for any misconduct or negligence of such Person. The Collateral Agent shall give the Grantors no less than ten (10) days’ prior written notice of the Collateral Agent’s intention to make any sale of Collateral. 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 (at the direction of the Required Purchasers) may (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 the Grantors (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 the Grantors 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 the Grantors 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 in accordance with any requirements under the PPSA or the STA or their equivalent in other jurisdictions. SECTION 4.02. Grant of License to Use Intellectual Property. For the exclusive purpose of enabling the Collateral Agent to exercise rights and remedies under this Agreement at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor shall, upon prior written request by the Collateral Agent (at the direction of the Required Purchasers) at any time during the continuance of an Event of Default, grant to the Collateral Agent a nonexclusive, non- transferable irrevocable, royalty-free, limited license (until the termination or cure of the Event of Default) to use any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Grantor, and wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof; provided, however, that nothing in this Section 4.02 shall require any Grantor to grant any license that is prohibited by any rule of law, statute or regulation, or is prohibited by, or constitutes a breach or default under or results in the termination of any contract, license, agreement, instrument or other document with respect to such Intellectual Property, or gives any third party any right of acceleration, modification, termination or cancellation in any such document, or otherwise unreasonably prejudices the value of such Intellectual Property; provided further that such licenses to be


 
-16- CAN_DMS: \149647507\7 granted hereunder with respect to Trademarks shall be subject to the Collateral Agent’s maintenance of quality standards with respect to the goods and services on which such Trademarks are used sufficient to preserve the validity of such Trademarks. For the avoidance of doubt, the use of such license by the Collateral Agent may be exercised solely during the continuation of an Event of Default and upon termination of the Event of Default; such license to the Intellectual Property shall automatically and immediately terminate and any Intellectual Property in the possession of the Collateral Agent shall be returned to the applicable Grantor. ARTICLE V Miscellaneous SECTION 5.01. Notices. All communications and notices hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in the Note Purchase Agreement. SECTION 5.02. Waivers; Amendment. (a) No failure or delay by the Collateral Agent or any other Secured Party in exercising any right or power hereunder or under any other Note Document shall operate as a waiver thereof nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Collateral Agent and the Secured Parties hereunder and under the other Note Documents are cumulative and are not exclusive of any rights or remedies that the Collateral Agent or the other Secured Parties would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any Note Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 5.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the purchase of a Note shall not be construed as a waiver of any Default hereunder, regardless of whether the Collateral Agent or any other Secured Party may have had notice or knowledge of such Default at the time. No notice or demand on any Note Party in any case shall entitle any Note Party to any other or further notice or demand in similar or other circumstances. (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Collateral Agent and the Grantors with respect to which such waiver, amendment or modification is to apply, subject to any consent required in accordance with the Note Purchase Agreement; provided that the Collateral Agent may, without the consent of any other Secured Party, consent to a departure by the any of Grantors from any covenant set forth herein to the extent such departure is consistent with the authority of the Collateral Agent or Collateral Agent set forth in the Note Purchase Agreement. SECTION 5.03. Collateral Agent’s Fees and Expenses; Indemnification. (a) Each Grantor agrees to reimburse the Collateral Agent and the Purchasers for any Collateral Agent Expenses and Purchasers’ Expenses incurred hereunder as provided in Sections 2.4 and 2.5 of the Note Purchase Agreement and to indemnify the Collateral Agent and the Purchasers in accordance with Section 13.2(a) of the Note Purchase Agreement; provided that each reference therein to the “Issuer” shall be deemed to be a reference to “the Grantors”, “each Grantor” or “any Grantor, as applicable. (b) The provisions of this Section 5.03 shall remain operative and in full force and effect regardless of the termination of this Agreement or any other Note Document, the consummation of the transactions contemplated hereby or thereby, the repayment of any of the Secured Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Note Document, or any investigation made by or on behalf of any Secured Party. All amounts due under this Section 5.03 shall be payable not later than twenty (20) Business Days after written demand therefor; provided, however, any


 
-17- CAN_DMS: \149647507\7 Indemnitee shall promptly refund an indemnification payment received hereunder to the extent that there is a final judicial determination that such Indemnitee was not entitled to indemnification with respect to such payment pursuant to this Section 5.03. Any such amounts payable as provided hereunder shall be additional Secured Obligations. SECTION 5.04. Successors and Assigns. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the permitted successors and assigns of such party, and all covenants, promises and agreements by or on behalf of the Grantors or the Collateral Agent that are contained in this Agreement shall bind and inure to the benefit of their respective successors and assigns. SECTION 5.05. Survival of Agreement. All covenants, agreements, representations and warranties made by the Grantors in this Agreement or any other Note Document and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Note Document shall be considered to have been relied upon by the Secured Parties and shall survive the execution and delivery of the Note Documents and the purchase of any Notes, regardless of any investigation made by or on behalf of any Secured Party and notwithstanding that the Collateral Agent, the Purchasers or any other Secured Party may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended under the Note Purchase Agreement or any other Note Document, and shall continue in full force and effect until the Termination Date has occurred, in each case, in accordance with and subject to the limitations set forth in the Note Purchase Agreement. SECTION 5.06. Counterparts; Effectiveness; Several Agreement. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually signed counterpart of this Agreement. This Agreement shall become effective when a counterpart hereof executed on behalf of each of the Grantors and shall have been delivered to the Collateral Agent and a counterpart hereof shall have been executed on behalf of the Collateral Agent, and thereafter shall be binding upon the Grantors and the Collateral Agent and their respective permitted successors and assigns, and shall inure to the benefit of the Grantors, the Collateral Agent and the other Secured Parties and their respective successors and assigns, except that the Grantors shall not have the right to assign or transfer its rights or obligations hereunder or any interest herein (and any such assignment or transfer shall be void) except as expressly provided in this Agreement and the Note Purchase Agreement. SECTION 5.07. Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. SECTION 5.08. Right of Set-off. If an Event of Default under the Note Purchase Agreement shall have occurred and be continuing, each Purchaser and its respective Affiliates are hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency, but not withholding or payroll accounts, employee benefits accounts, de minimis accounts or other accounts used exclusively for taxes or fiduciary or trust purposes) at any time held and other obligations (in whatever currency) at any time owing by such Purchaser or any such Affiliate to or for the credit or the account of each Grantor against any of and all the obligations of such Grantor then due and owing under this Agreement held by such Purchaser, irrespective of whether or not such Purchaser shall have made any demand under this Agreement and although (i) such obligations may be contingent or unmatured and (ii)


 
-18- CAN_DMS: \149647507\7 such obligations are owed to a branch or office of such Purchaser different from the branch or office holding such deposit or obligated on such Debt. The applicable Purchaser shall notify the applicable Grantor and the Collateral Agent of such setoff and application; provided that any failure to give or any delay in giving such notice shall not affect the validity of any such setoff and application under this Section 5.08. The rights of each Purchaser and its Affiliates under this Section 5.08 are in addition to other rights and remedies (including other rights of setoff) that such Purchaser and its Affiliates may have. SECTION 5.09. Governing Law; Jurisdiction; Consent to Service of Process; Appointment of Service of Process Agent. (a) This Agreement shall be construed in accordance with and governed by the laws of the province of Ontario and the federal laws of Canada applicable therein. (b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the courts of the province of Ontario, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in the courts of Ontario. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Collateral Agent or any Purchaser may otherwise have to bring any action or proceeding relating to this Agreement against each Grantor or its respective properties in the courts of any jurisdiction. (c) Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (b) of this Section 5.09. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. (d) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 5.01. NOTHING IN ANY THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. (e) THE GRANTORS HEREBY IRREVOCABLY DESIGNATE, APPOINT AND EMPOWER BIRD CANADA INC. AS ITS AUTHORIZED DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS THAT MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING AND THE ISSUER HEREBY ACCEPTS SUCH DESIGNATION AND APPOINTMENT. SECTION 5.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER NOTE DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT 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 AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS


 
-19- CAN_DMS: \149647507\7 AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.10. SECTION 5.11. Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or to be taken into consideration in interpreting, this Agreement. SECTION 5.12. Security Interest Absolute. To the extent permitted by Law, all rights of the Collateral Agent hereunder, the Security Interest, the grant of a security interest in the Pledged Collateral and all obligations of the Grantors hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Note Purchase Agreement, any other Note Document, any agreement with respect to any of the Secured Obligations or any other agreement or instrument relating to any of the foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Secured Obligations, or any other amendment or waiver of or any consent to any departure from the Note Purchase Agreement, any other Note Document or any other agreement or instrument, (c) any exchange, release or non-perfection of any Lien on other collateral, or any release or amendment or waiver of or consent under or departure from any guarantee securing or guaranteeing all or any of the Secured Obligations or (d) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Grantors in respect of the Secured Obligations or this Agreement other than payment of the Secured Obligations in full. SECTION 5.13. Termination or Release. (a) This Agreement, the Security Interest and all other security interests granted hereby shall terminate automatically upon the occurrence of the Termination Date. (b) In connection with any termination or release pursuant to paragraph (a) of this Section, the Collateral Agent shall execute and deliver to any Note Party, at such Note Party’s expense, all documents that such Note Party shall reasonably request to evidence such termination or release so long as the applicable Note Party shall have provided the Collateral Agent such certificates or documents required by the Note Purchase Agreement in order to demonstrate compliance with this Section 5.13. Any execution and delivery of documents by the Collateral Agent pursuant to this Section shall be without recourse to or warranty by the Collateral Agent or any other Secured Party. SECTION 5.14. Collateral Agent Appointed Attorney-in-Fact. Each Grantor hereby makes, constitutes and appoints the Collateral Agent (and all officers, employees or agents designated by the Collateral Agent) the attorney-in-fact of the Grantors for the purpose of carrying out the provisions of this Agreement and taking any action and executing any instrument that the Collateral Agent may deem necessary or advisable to accomplish the purposes hereof at any time after and during the continuance of an Event of Default, which appointment is irrevocable (until termination of this Agreement in accordance with Section 5.13) and coupled with an interest. Without limiting the generality of the foregoing, the Collateral Agent shall have the right, but only upon the occurrence and during the continuance of an Event of Default, with full power of substitution either in the Collateral Agent’s name or in the name of each Grantor: (a) to receive, indorse, assign and/or deliver any and all notes, acceptances, cheques, drafts, money orders or other evidences of payment relating to the Collateral or any part thereof; (b) to demand, collect, receive payment of, give receipt for and give discharges and releases of all or any of the Collateral; (c) to sign the name of each Grantor on any invoice or bill of lading relating to any of the Collateral; (d) to send verifications of accounts receivable to any Account Debtor; (e) to commence and prosecute any and all suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect or otherwise realize on all or any of the Collateral or to enforce any rights in respect of any Collateral; (f) to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to all or any of the Collateral; (g) to the extent the Notes have been accelerated pursuant to the Note Purchase Agreement, to


 
-20- CAN_DMS: \149647507\7 notify, or to require the Grantors to notify, Account Debtors to make payment directly to the Collateral Agent; (h) to use, sell, assign, transfer, pledge, make any agreement with respect to or otherwise deal with all or any of the Collateral, and to do all other acts and things necessary to carry out the purposes of this Agreement, as fully and completely as though the Collateral Agent were the absolute owner of the Collateral for all purposes, and (i) to make, settle and adjust claims in respect of Collateral under policies of insurance, indorsing the name of each Grantor on any cheque, draft, instrument or other item of payment for the proceeds of such policies of insurance and for making all determinations and decisions with respect thereto; provided that nothing herein contained shall be construed as requiring or obligating the Collateral Agent to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Collateral Agent, or to present or file any claim or notice, or to take any action with respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any property covered thereby. The Collateral Agent and the other Secured Parties shall be accountable only for amounts actually received as a result of the exercise of the powers granted to them herein, and neither they nor their officers, directors, employees or agents shall be responsible to the Grantors for any act or failure to act hereunder, except for their own gross negligence, bad faith or willful misconduct or that of any of their controlled Affiliates, directors, officers, employees, counsel, agents or attorneys-in-fact. The provisions of Exhibit C of the Note Purchase Agreement, including the rights, privileges, protections, benefits, indemnities and immunities of the Collateral Agent are incorporated herein, mutatis mutandis, as if a part hereof, and shall also apply to the Collateral Agent acting under or in connection with this Agreement. If the Collateral Agent has a right to take or omit to take any action hereunder, it shall exercise such right if so instructed by the Required Purchasers. With respect to any discretion, consent, approval or similar such action to be made, taken, omitted to be taken or determined by the Collateral Agent under this Agreement (each an “Agent Determination”), such Agent Determination shall be made by the Collateral Agent at the direction of the Required Purchasers. SECTION 5.15. Further Assurances. Each Grantor shall from time to time, whether before or after the pledge and security interest has become enforceable, do all acts and things and execute and deliver all transfers, assignments and agreements as the Collateral Agent (at the direction of the Required Purchasers) may reasonably require for (a) protecting the Collateral, (b) perfecting the Collateral and the security interest, (c) obtaining control of the Collateral, (d) exercising all powers, authorities and discretions conferred upon the Collateral Agent, and (e) otherwise enabling the Collateral Agent to obtain the full benefits of this security agreement and the rights and powers herein granted. Each Grantor shall, from time to time after the pledge and security interest has become enforceable, do all acts and things and execute and deliver all transfers, assignments and agreements as the Collateral Agent (at the direction of the Required Purchasers) may require for facilitating the sale or other disposition of the Collateral in connection with its realization. SECTION 5.16. Judgment Currency. (a) If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due to a Secured Party in any currency (the “Original Currency”) into another currency (the “Other Currency”), the parties agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which, in accordance with normal banking procedures, such Secured Party could purchase the Original Currency with the Other Currency on the Business Day preceding the day on which final judgment is given or, if permitted by applicable law, on the day on which the judgment is paid or satisfied. (b) The obligations of a Grantor in respect of any sum due in the Original Currency from it to any Secured Party under this Agreement shall, notwithstanding any judgment in any Other Currency, be discharged only to the extent that on the Business Day following receipt by such Secured Party of any sum adjudged to be so due in the Other Currency, such Secured Party may, in accordance with normal banking procedures, purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to such Secured Party in the Original Currency,


 
-21- CAN_DMS: \149647507\7 such Grantor agrees, as a separate obligation and notwithstanding the judgment, to indemnify such Secured Party against any loss, and, if the amount of the Original Currency so purchased exceeds the sum originally due to such Secured Party in the Original Currency, such Secured Party shall remit such excess such Grantor. SECTION 5.17. Amalgamation. If any Grantor amalgamates with any other corporation or corporations, it is the intention of the parties that the Security Interest will (a) extend to all of the property, assets and interests that (i) any of the amalgamating corporations own, or (ii) the amalgamated corporation thereafter acquires, and (b) secure the payment and performance of all debts, liabilities and obligations of any of the amalgamating corporations and the amalgamated corporation to the Collateral Agent, however or wherever incurred and whether as principal, guarantor or surety and whether incurred prior to, at the time of, or subsequent to, the amalgamation. The Security Interest will attach to the property, assets and interests of the amalgamating corporations not previously subject to this Agreement at the time of amalgamation and to any property, assets or interests thereafter owned or acquired by the amalgamated corporation when such property, assets or interests become owned or are acquired. Upon any such amalgamation, the defined term “Grantor” shall include each of the amalgamating corporations and the amalgamated corporation, the defined term Collateral shall include all of the property, assets and interests described in (a) above, and the defined term Obligations shall include the obligations described in (b) above. [Remainder of Page Intentionally Left Blank]


 
[Signature Page to Pledge and Collateral Agreement] CAN_DMS: \149647507\7 IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written. BIRD CANADA INC. By: /s/ Stewart Lyons Name: Stewart Lyons Title: Chief Executive Officer


 
[Signature Page to Pledge and Collateral Agreement] CAN_DMS: \149647507\7 1393631 B.C. UNLIMITED LIABILITY COMPANY By: /s/ Shane Torchiana Name: Shane Torchiana Title: Chief Executive Officer


 
[Signature Page to Pledge and Collateral Agreement] CAN_DMS: \149647507\7 U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Collateral Agent By: /s/ Brandon Bonfig Name: Brandon Bonfig Title: Vice President


 
CAN_DMS: \149647507\7 Form of Schedule I to the Pledge and Collateral Agreement PLEDGED EQUITY INTERESTS Holder Issuer Class of Stock Stock Certificate No. No. of Shares Percentage of Total Owned Percentage of Issuer’s Stock Pledged NIL NIL PLEDGED DEBT SECURITIES 1. NIL


 
CAN_DMS: \149647507\7 Form of Schedule II to the Pledge and Collateral Agreement INTELLECTUAL PROPERTY COPYRIGHTS None PATENTS None TRADEMARKS None


 
CAN_DMS: \149647507\7 Schedule III to the Pledge and Collateral Agreement Type of Organization, Jurisdiction of Organization, Registration. No., and Chief Executive Office Address Grantor Type of Organization Jurisdiction of Organization Registration No. Chief Executive Office Address Bird Canada Inc. Corporation Ontario ON - 002699331 161 Bay Street, Suite 2300, Toronto, Ontario M5J 2S1 1393631 B.C. Unlimited Liability Company Corporation British Columbia BC1393631 Suite 2600, Three Bentall Centre, 595 Burrard Street, P.O. Box 49314 Vancouver, B.C. V7X 1L3


 
CAN_DMS: \149647507\7 Exhibit I to the Pledge and Collateral Agreement INTELLECTUAL PROPERTY SECURITY AGREEMENT, dated as of [_], 20[_] (this “Agreement”), among Bird Canada Inc., an Ontario company and 1393631 B.C. Unlimited Liability Company, a British Columbia unlimited liability company (collectively, the “Grantors” and each a “Grantor”) and U.S. Bank Trust Company, National Association, as collateral agent for the Purchasers (the “Collateral Agent”). Reference is made to (a) the Note Purchase Agreement dated as of December 30, 2022 (as amended, supplemented or modified from time to time, the “Note Purchase Agreement”) among Bird Global, Inc. (“Issuer”), the several purchasers from time to time party thereto (the “Purchasers”) and the Collateral Agent and (b) the Pledge and Collateral Agreement dated as of December 30, 2022 (as amended, restated, supplemented or otherwise modified from time to time, the “Collateral Agreement”) among the Grantors and the Collateral Agent. The Purchasers have agreed to purchase Notes from the Issuer subject to the terms and conditions set forth in the Note Purchase Agreement. Each Grantor is an Affiliate of the Issuer and is willing to execute and deliver this Agreement in order to induce the Purchasers to purchase additional Notes and as consideration for Notes previously purchased. Accordingly, the parties hereto agree as follows: SECTION 1. Terms. Capitalized terms used in this Agreement and not otherwise defined herein have the meanings specified in the Collateral Agreement. The rules of construction specified in Section 1 of the Collateral Agreement also apply to this Agreement. SECTION 2. Grant of Security Interest. As security for the payment or performance, as the case may be, in full of the Secured Obligations, each Grantor hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title and interest in, to and under the Intellectual Property on Schedule I attached hereto (collectively, the “Intellectual Property Collateral”). This Agreement is not to be construed as an assignment of any Copyright. SECTION 3. Collateral Agreement. Each Grantor hereby acknowledges and affirms that the rights and remedies of the Collateral Agent with respect to the Intellectual Property Collateral are more fully set forth in the Collateral Agreement, the terms and provisions of which are hereby incorporated herein by reference as if fully set forth herein. In the event of any conflict between the terms of this Agreement and the Collateral Agreement, the terms of the Collateral Agreement shall govern. SECTION 4. Termination. Subject to Section 5.13 of the Collateral Agreement, upon the occurrence of the Termination Date, the security interest granted herein shall terminate and the Collateral Agent shall execute, acknowledge, and deliver to the Grantors all instruments in writing in recordable form to evidence and release the collateral pledge, grant, lien and security interest in the Intellectual Property Collateral under this Agreement. SECTION 5. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually signed counterpart of this Agreement. SECTION 6. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the province of Ontario and the federal laws of Canada applicable therein.


 
-2- CAN_DMS: \149647507\7 [Remainder of Page Intentionally Left Blank]


 
[Signature Page to Intellectual Property Security Agreement] CAN_DMS: \149647507\7 IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written. BIRD CANADA INC. By Name: Title: [Signature pages continue.]


 
-2- CAN_DMS: \149647507\7 1393631 B.C. UNLIMITED LIABILITY COMPANY By Name: Title: [Signature pages continue.]


 
-3- CAN_DMS: \149647507\7 U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Collateral Agent By: Name: Title:


 
CAN_DMS: \149647507\7 Schedule I


 

EXECUTION VERSION 1 US-DOCS\137534636.17 VOTING AGREEMENT THIS VOTING AGREEMENT (this “Agreement”), dated as of December 30, 2022, and effective from and after the Closing Date (as defined in the Share Purchase Agreement (as defined below)) (the “Effective Date”), is made by and among Bird Global, Inc., a Delaware corporation (the “Company”), MKB Partners Fund II, Limited Partnership and MKB Partners Fund II International, Limited Partnership (“MKB”), Relay Ventures Fund III L.P. and Relay Ventures Parallel Fund III L.P. (“Relay”), Alate I LP (“Alate”), and Obelysk Transport L.P. and John Bitove (“Obelysk” and, together with MKB, Relay and Alate, each an “Investor” and, collectively, the “Investors”) and Travis VanderZanden (together with transferees of his shares of Class X Common Stock received in a Permitted Transfer (as defined in the Restated Charter (as defined below)), the “Founder Stockholders” and, together collectively with the Investors, the “Stockholders”). RECITALS WHEREAS, on the date hereof, the Investors entered into that certain Share Purchase Agreement (the “Share Purchase Agreement”) with (a) 1393631 B.C., a British Columbia ULC (“Purchaser”), (b) the Company, (c) Bird Canada Inc., an Ontario corporation, (d) the Investors, (e) 2136305 Ontario Inc. and Stewart Lyons (“Lyons”), (f) JJ Bitove (“Bitove”), (g) Austin Spademan (“Spademan”), (h) Ryan Lausman (“Lausman”) and (i) John Bitove, solely in his capacity as Sellers’ Representative (as defined in the Share Purchase Agreement), providing for the sale by each Investor, Lyons, Bitove, Spademan and Lausman to Purchaser of all of the Company Equity Interests (as defined in the Share Purchase Agreement) held by such Investor, Lyons, Bitove, Spademan and Lausman in exchange for an amount equal to the Closing Consideration (as defined in the Share Purchase Agreement), as adjusted in accordance with the Share Purchase Agreement. WHEREAS, concurrently with the execution of this Agreement, the Company and the Investors are entering into a Note Purchase Agreement (the “Note Purchase Agreement”) providing for the sale of Notes (as defined in the Notes Purchase Agreement), which Notes shall be convertible into shares of Class A common stock, having a par value of $0.0001 per share, of the Company (the “Class A Common Stock”), and in connection with the Note Purchase Agreement and the Share Purchase Agreement, the Company desires to provide the Investors with the right, among other rights, to designate the election of certain members of the board of directors of the Company (the “Board”) in accordance with the terms of this Agreement. WHEREAS, the Amended and Restated Certificate of Incorporation of the Company (the “Restated Certificate”) provides that (a) the holders of record of shares of Class X common stock, having a par value of $0.0001 per share, of the Company (the “Class X Common Stock”), with respect to all matters on which stockholders of the Company generally are entitled to vote, shall be entitled to twenty votes for each share of Class X Common Stock held by them and (b) the holders of record of Class A Common Stock, with respect to all matters on which stockholders of the Company generally are entitled to vote, shall be entitled to one vote for each share of Class A Common Stock held by them.


 
2 US-DOCS\137534636.17 NOW, THEREFORE, the parties agree as follows: 1. Voting Provisions Regarding the Board. 1.1 Size of the Board. For so long as the Investors and their Affiliates (as defined below) collectively continue to beneficially own, directly or indirectly, Notes and/or shares of Class A Common Stock representing at least 9,860,916 shares of Class A Common Stock (assuming conversion of all of the Notes into shares of Class A Common Stock), which number is subject to appropriate adjustment for any stock splits, stock dividends, combinations, recapitalizations and the like, the Company and each Stockholder shall take all actions as necessary and within their control to ensure that the size of the Board shall be comprised of no more than nine (9) directors. 1.2 Board Composition. For so long as the Investors and their Affiliates collectively continue to beneficially own, directly or indirectly, Notes and/or shares of Class A Common Stock representing at least the following numbers of shares of Class A Common Stock (assuming conversion of all of the Notes into shares of Class A Common Stock), in each case subject to appropriate adjustment for any stock splits, stock dividends, combinations, recapitalizations and the like: (A) greater than or equal to 49,304,578 (the “25% Threshold”), (B) greater than or equal to 39,443,662 (the “20% Threshold”), (C) greater than or equal to 29,582,747 (the “15% Threshold”), (D) greater than or equal to 19,721,831 (the “10% Threshold”) or (E) greater than or equal to 9,860,916 (the “Required Threshold” and, collectively with the 25% Threshold, the 20% Threshold, the 15% Threshold and the 10% Threshold, the “Designation Thresholds”), Investors holding a majority of the voting rights then held by the Investors (assuming conversion of all of the Notes into shares of Class A Common Stock) (the “Investor Majority”) shall have the right, but not the obligation, with respect to each applicable Designation Threshold: (a) to have, at all times, the number of Investor Designees (as defined below) set forth in Sections 1.2(a)(i) to 1.2(a)(v) with respect to each Designation Threshold below (such number, as applicable, the “Designated Number”) be members of the Board: (i) 25% Threshold: five (5) Investor Designees; (ii) 20% Threshold: four (4) Investor Designees; (iii) 15% Threshold: three (3) Investor Designees; (iv) 10% Threshold: two (2) Investor Designees; and (v) Required Threshold: one (1) Investor Designee; and (b) to designate for election to the Board, and the Company shall include such designees as nominees for election to the Board at all of the Company’s applicable annual or special meetings of stockholders of the Company (or consents


 
3 US-DOCS\137534636.17 in lieu of a meeting) at which directors of the Company are to be elected or removed, other than as set forth below, subject to satisfaction of all qualification and legal requirements regarding service as a member of the Board in accordance with Section 1.6 and Section 3, the applicable number of individuals with respect to such Designation Threshold (any such designee, an “Investor Designee”), with at least one Investor Designee (to the extent the Investors have the right, but not the obligation, to designate at least three (3) Investor Designees) designated for each class of director of the Company to the extent practicable under the Restated Certificate and applicable stock exchange rules. For purposes of this Agreement, an individual, firm, corporation, partnership, association, limited liability company, trust or any other entity (collectively, a “Person”) shall be deemed an “Affiliate” of another Person (a) who, directly or indirectly, controls, is controlled by or is under common control with such Person, including, without limitation, any general partner, managing member, officer, director or trustee of such Person, or any venture capital fund or registered investment company now or hereafter existing that is controlled by one or more general partners, managing members or investment advisers of, or shares the same management company or investment adviser with, such Person and (b) who is a natural person, who is a spouse, child (natural or adopted), or any other direct lineal descendant of such Person (or his or her spouse) (all of the foregoing collectively referred to as “family members”), or any custodian or trustee of any trust, partnership or limited liability company for the benefit of, or the ownership interests of which are owned wholly by such Person or any such family members. 1.3 Board Committee Composition. Subject to applicable law and stock exchange rules, including requisite independence requirements applicable to any Board committee, for so long as the Investors and their Affiliates collectively continue to beneficially own, directly or indirectly, at least the Required Threshold, the Investor Majority shall have the right but not the obligation to designate one (1) Investor Designee to serve on each of the Audit Committee, Compensation Committee and Nominating and Corporate Governance Committee (to the extent not prohibited by applicable law or applicable stock exchange rules with respect to companies that are not “controlled companies” under applicable stock exchange rules). 1.4 Resignation, Removal of Board Members. (a) If the number of Investor Designees is decreased pursuant to Section 1.2, then the corresponding number of Investor Designees shall immediately offer to tender their resignations for consideration by the Board and, if such resignations are requested by the Board, such Investor Designees shall resign within thirty (30) days from the date the resignation is requested by the Board, subject to the proviso in the following sentence. In the event that a majority of the Board requests such resignations pursuant to this Section 1.4(a), the Company and the Stockholders shall immediately take any and all actions reasonably necessary or appropriate and within their control to cooperate in ensuring the removal of such individuals upon receipt of their resignations or such later date as the Board may request; provided that notwithstanding anything to the contrary herein, an Investor Designee may resign at any time regardless of the period of time left in his or her then current term.


 
4 US-DOCS\137534636.17 (b) Except as provided above, the Investor Majority shall have the sole and exclusive right to (i) no more frequently than once in each 6-month period, except for cause, remove such Stockholder’s designees to the Board, (ii) appoint and/or designate an Investor Designee to fill vacancies on the Board pursuant to Section 1.2 that are created by reason of death, removal or resignation or non-election of any Investor Designees, subject to Sections 1.4(a) and 1.6 and (iii) direct the other Stockholders to vote all their Shares immediately for the removal or appointment of such Stockholder’s designee to the Board. (c) For purposes of this Agreement, the term “Shares” shall mean and include any securities of the Company that the holders of which are entitled to vote for members of the Board, including without limitation, all shares of Class A Common Stock and Class X Common Stock (together with the Class A Common Stock, “Common Stock”), by whatever name called, now owned or subsequently acquired by a Stockholder, however acquired, whether through stock splits, stock dividends, combinations, recapitalizations and the like. 1.5 No Liability for Election of Recommended Directors. No Investor, nor any Affiliate of any Investor, shall have any liability as a result of designating a person for election as a director for any act or omission by such designated person in his or her capacity as a director of the Company, nor shall any Stockholder have any liability as a result of voting for any such designee in accordance with the provisions of this Agreement. 1.6 Qualification. All Investor Designees must satisfy the applicable legal requirements, rule or regulation of the SEC and stock exchange rules regarding service as a Director. 1.7 Necessary Actions. The Company and each of the Stockholders shall take all actions necessary and within their control to give effect to the provisions contained in this Section 1, including, without limitation, (i) in the case of the Company, soliciting proxies to vote for each Investor Designee designated by the Investor Majority and otherwise causing each Investor Designee designated by the Investor Majority to be included as the only director in the slate of nominees recommended by the Company and elected as a director of the Company with respect to a director seat for which such Investor Designee is eligible to be elected, in accordance with the Company’s organizational documents and applicable stock exchange rules, and (ii) in the case of the Stockholders, voting the shares of Common Stock held directly or indirectly by such Stockholders (whether at a meeting or by consent) and any of their respective Affiliates, to cause the nomination, election, removal or replacement of the Investor Designees designated by the Stockholders, in each case as provided for herein and otherwise to cause the Issuer to comply with its obligations hereunder. No Person shall take any action that would be inconsistent with or otherwise circumvent the provisions of this Agreement; provided that the Investor Majority may, in its sole discretion, elect not to designate any individual for election to the Board as an Investor Designee. Notwithstanding the foregoing, if the Founder Stockholders do not beneficially own, directly or indirectly, a number of shares of voting stock of the Company representing a majority of the voting power of all the then outstanding shares of voting stock of the Company entitled to vote at an election of directors, the Founder Stockholders shall only be required to take all actions as are reasonably necessary and within their control to give effect to the provisions contained in this Section 1.


 
5 US-DOCS\137534636.17 1.8 Controlled Company. (a) The Stockholders acknowledge and agree that, (i) by virtue of this Section 1, they are acting as a “group” within the meaning of the applicable stock exchange rules as of the date hereof, and (ii) by virtue of the combined voting power of all classes and series of Common Stock then entitled to vote generally in the election of directors, according to each class’ or series’ respective votes per share, voting together as a single class of Common Stock held by the Stockholders, the Company shall qualify as a “controlled company” within the meaning of applicable stock exchange rules as of the Closing Date (as defined in the Share Purchase Agreement). (b) So long as the Company qualifies as a “controlled company” for purposes of applicable stock exchange rules, the Company may elect to be a “controlled company” for purposes of applicable stock exchange rules, and will disclose in its annual meeting proxy statement that it is a “controlled company” and the basis for that determination. If the Company ceases to qualify as a “controlled company” for purposes of applicable stock exchange rules, the Stockholders and the Company will take whatever action may be reasonably necessary and within their control in relation to such party, if any, to cause the Company to comply with applicable stock exchange rules as then in effect within the timeframe for compliance available under such rules. 2. Remedies. 2.1 Covenants. Subject to the Company and Founder Stockholders’ obligation to take all actions necessary and within their control to give effect to the provisions herein, the Company and the Founder Stockholders otherwise agree to use its reasonable best efforts, within the requirements of applicable law, to ensure that the rights granted under this Agreement are effective and that the parties enjoy the benefits of this Agreement. Such actions include, without limitation, the use of the Company’s reasonable best efforts to cause the nomination and election of the directors as provided in this Agreement. 2.2 Specific Enforcement. Each party acknowledges and agrees that each party hereto will be irreparably damaged in the event any of the provisions of this Agreement are not performed by the parties in accordance with their specific terms or are otherwise breached. Accordingly, it is agreed that each of the Company and the Stockholders shall be entitled to an injunction to prevent breaches of this Agreement, and to specific enforcement of this Agreement and its terms and provisions in any action instituted in any court of the United States or any state having subject matter jurisdiction. 2.3 Remedies Cumulative. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative. 3. “Bad Actor” Matters. 3.1 Definitions. For purposes of this Agreement:


 
6 US-DOCS\137534636.17 (a) “Company Covered Person” means, with respect to the Company as an “issuer” for purposes of Rule 506 promulgated under the Securities Act , any Person listed in the first paragraph of Rule 506(d)(1). (b) “Disqualified Designee” means any director designee to whom any Disqualification Event is applicable, except for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. (c) “Disqualification Event” means a “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) promulgated under the Securities Act. (d) “Rule 506(d) Related Party” means, with respect to any Person, any other Person that is a beneficial owner of such first Person’s securities for purposes of Rule 506(d) under the Securities Act. (e) “Securities Act” means the Securities Act of 1933, as amended. 3.2 Representations. (a) Each Person with the right to designate or participate in the designation of a director as specified above hereby represents and warrants to the Company that, to such Person’s knowledge, none of the Disqualification Events is applicable to such Person’s initial designee named above except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Each Person with the right to designate or participate in the designation of a director pursuant to this Agreement hereby represents that (i) such Person has exercised reasonable care to determine whether any Disqualification Event is applicable to such Person, any director designee designated by such Person pursuant to this Agreement or any of such Person’s Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable and (ii) no Disqualification Event is applicable to such Person, any Board member designated by such Person pursuant to this Agreement or any of such Person’s Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Notwithstanding anything to the contrary in this Agreement, no Stockholder makes any representation regarding any Person that may be deemed to be a beneficial owner of the Company’s voting equity securities held by such Stockholder solely by virtue of that Person being or becoming a party to (x) this Agreement, as may be subsequently amended, or (y) any other contract or written agreement to which the Company and such Stockholder are parties regarding (1) the voting power, which includes the power to vote or to direct the voting of, such security; and/or (2) the investment power, which includes the power to dispose, or to direct the disposition of, such security. (b) The Company hereby represents and warrants to the Stockholders that no Disqualification Event is applicable to the Company or, to the Company’s knowledge, any Company Covered Person, except for a Disqualification Event as to which Rule 506(d)(2)(ii–iv) or (d)(3) is applicable.


 
7 US-DOCS\137534636.17 3.3 Covenants. Each Person with the right to designate or participate in the designation of a director pursuant to this Agreement covenants and agrees (i) not to designate or participate in the designation of any director designee who, to such Person’s knowledge, is a Disqualified Designee, (ii) to exercise reasonable care to determine whether any director designee designated by such person is a Disqualified Designee, (iii) that in the event such Person becomes aware that any individual previously designated by any such Person is or has become a Disqualified Designee, such Person shall as promptly as practicable take such actions as are reasonably necessary and within its control to remove such Disqualified Designee from the Board and designate a replacement designee who is not a Disqualified Designee, and (iv) to notify the Company promptly in writing in the event a Disqualification Event becomes applicable to such Person or any of its Rule 506(d) Related Parties, or, to such Person’s knowledge, to such Person’s initial designee named in Section 1, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. 4. Conversion of Class X Common Stock. The Founder Stockholders covenant and agree that, upon the conversion of all or a portion of the Notes into Class A Common Stock in accordance with their terms and, pursuant to which, immediately following such conversion, the Investors collectively beneficially own, directly or indirectly (but, for the avoidance of doubt, excluding from such calculation any shares of Class A Common Stock issuable in respect of Notes that have not converted as of such time), at least 88,960,960 shares of Class A Common Stock, subject to appropriate adjustment for any stock splits, stock dividends, combinations, recapitalizations and the like, the Founder Stockholders shall voluntarily convert all of their shares of Class X Common Stock into shares of Class A Common Stock in accordance with the Restated Certificate. 5. Term. This Agreement shall be effective as of the date hereof and shall continue in effect until, and shall automatically terminate upon the earliest to occur of (a) the date on which the Investors and their Affiliates cease to hold the Required Threshold; and (b) termination of this Agreement in accordance with Subsection 6.7 below. 6. Miscellaneous. 6.1 Transfers. Each transferee or assignee of any shares of Class X Common Stock pursuant to a Permitted Transfer subject to this Agreement shall continue to be subject to the terms hereof, and, as a condition precedent to the Company’s recognition of such transfer, each transferee or assignee shall agree in writing to be subject to each of the terms of this Agreement by executing and delivering an Adoption Agreement substantially in the form attached hereto as Exhibit A. Upon the execution and delivery of an Adoption Agreement by any transferee, such transferee shall be deemed to be a party hereto as if such transferee were the transferor and such transferee’s signature appeared on the signature pages of this Agreement and shall be deemed to be an Investor and Stockholder or Founder Stockholder and Stockholder, as applicable. The Company shall not permit the transfer of the Shares subject to this Agreement on its books or issue a new certificate representing any such Shares unless and until such transferee shall have complied with the terms of this Subsection 6.1.


 
8 US-DOCS\137534636.17 6.2 Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. 6.3 Governing Law. This Agreement and all claims or causes of action (whether in contract or tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement and/or as an inducement to enter into this Agreement) shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to conflict-of-laws principles that might require the application of the laws of any other jurisdiction. 6.4 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. 6.5 Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. 6.6 Notices. (a) All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or (a) personal delivery to the party to be notified, (b) when sent, if sent by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after the business day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their address as set forth on Schedule A or Schedule B hereto, or to such address or email address as subsequently modified by written notice given in accordance with this Subsection 6.6. If notice is given to the Company, it shall be sent to Bird Global, Inc., Attn: Lisa Murison, Email: lisa.murison@bird.co; and if notice is given to the Investors, a copy shall also be given to the Sellers’ Representative, John Bitove, TD Canada Trust Tower Brookfield Place, 161 Bay Street, Suite 2300, P.O. Box 222, Toronto ON M5J 2S1, bitove@obelysk.com. (b) Consent to Electronic Notice. Each Investor and Founder Stockholder consents to the delivery of any stockholder notice pursuant to the Delaware General


 
9 US-DOCS\137534636.17 Corporation Law, as amended or superseded from time to time (the “DGCL”), by electronic transmission pursuant to Section 232 of the DGCL (or any successor thereto) at the email address set forth below such Investor’s or Founder Stockholder’s name on the Schedules hereto, as updated from time to time by notice to the Company, or as on the books of the Company. Each Investor, and Founder Stockholder agrees to promptly notify the Company of any change in its email address, and that failure to do so shall not affect the foregoing. 6.7 Consent Required to Amend, Modify, Terminate or Waive. This Agreement may be amended, modified or terminated (other than pursuant to Section 7) and the observance of any term hereof may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a written instrument executed by (a) the Company; (b) the Founder Stockholders holding a majority of the Shares then held by the Founder Stockholders who are then providing services to the Company as officers, employees or consultants; and (c) the Investor Majority. Notwithstanding the foregoing: (a) this Agreement may not be amended, modified or terminated and the observance of any term of this Agreement may not be waived with respect to any Investor or Founder Stockholder without the written consent of such Investor or Founder Stockholder unless such amendment, modification, termination or waiver applies to all Investors or Founder Stockholders, as the case may be, in the same fashion; (b) the consent of the Founder Stockholders shall not be required for any amendment, modification, termination or waiver if such amendment, modification, termination, or waiver either (A) is not directly applicable to the rights of the Founder Stockholders hereunder; or (B) does not adversely affect the rights of the Founder Stockholders in a manner that is different than the effect on the rights of the other parties hereto; and (c) any provision hereof may be waived by the waiving party on such party’s own behalf, without the consent of any other party. The Company shall give prompt written notice of any amendment, modification, termination, or waiver hereunder to any party that did not consent in writing thereto. Any amendment, modification, termination, or waiver effected in accordance with this Subsection 6.7 shall be binding on each party and all of such party’s successors and permitted assigns, whether or not any such party, successor or assignee entered into or approved such amendment, modification, termination or waiver. For purposes of this Subsection 6.7, the requirement of a written instrument may be satisfied in the form of an action by written consent of the Stockholders circulated by the Company and executed by the Stockholder parties specified, whether or not such action by written consent makes explicit reference to the terms of this Agreement. 6.8 Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default previously or thereafter occurring. Any waiver, permit,


 
10 US-DOCS\137534636.17 consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing (email being sufficient) and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative. 6.9 Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. 6.10 Entire Agreement. This Agreement (including the Exhibits hereto), constitute the full and entire understanding and agreement between the parties with respect to the subject matter hereof, and supersedes any other written or oral agreement relating to the subject matter hereof existing between the parties. 6.11 Manner of Voting. The voting of Shares pursuant to this Agreement may be effected in person, by proxy, by written consent or in any other manner permitted by applicable law. For the avoidance of doubt, voting of the Shares pursuant to the Agreement need not make explicit reference to the terms of this Agreement. 6.12 Further Assurances. At any time or from time to time after the date hereof, the parties agree to cooperate with each other, and at the request of any other party, to execute and deliver any further instruments or documents and to take all such further action as the other party may reasonably request in order to carry out the intent of the parties hereunder. 6.13 Dispute Resolution The parties hereby irrevocably submit to the exclusive jurisdiction of the Chancery Court of the State of Delaware (or, if the Chancery Court of the State of Delaware declines to accept jurisdiction, the Superior Court of the State of Delaware, or the United States District Court for the District of Delaware) over all claims, disputes or causes of action (whether in contract or tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action, whether in contract or tort or otherwise, based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement) and each party hereby irrevocably agrees that all suits, claims, actions and proceedings in respect of any such claim, dispute or cause of action, or any suit, action or proceeding related thereto (whether in contract or tort or otherwise) shall be heard and determined in such courts. The parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection that they may now or hereafter have to the laying of venue of any such suit, action or proceeding brought in such court or any defense of inconvenient forum for the maintenance of any such suit, action or proceeding. Each of the parties agrees that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment or in any other manner provided by applicable law. Each of the parties hereby consents to process being served by any party to this Agreement in any suit, action or proceeding by the delivery of a copy thereof in accordance with the provisions of Section 6.6. The consents to jurisdiction and service of process set forth in this Section 6.13 shall not constitute general consents to service of process in the


 
11 US-DOCS\137534636.17 State of Delaware and shall have no effect for any purpose except as provided in this Section 6.13 and shall not be deemed to confer rights on any Person other than the parties to this Agreement. Each party will bear its own costs in respect of any disputes arising under this Agreement. 6.14 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY WHETHER ARISING IN CONTRACT OR IN TORT OR OTHERWISE. EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.14. [Signature Page Follows]


 
SIGNATURE PAGE TO VOTING AGREEMENT IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first written above. COMPANY: BIRD GLOBAL, INC. By: /s/ Shane Torchiana Name: Shane Torchiana Title: Chief Executive Officer and President FOUNDER STOCKHOLDER: /s/ Travis VanderZanden TRAVIS VANDERZANDEN


 
SIGNATURE PAGE TO VOTING AGREEMENT IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first written above. INVESTORS: ALATE I LP, by its General Partner, ALATE I GP INC. By: /s/ Jay Jiang Name: Jay Jiang Title: Authorized Signatory By: /s/ Jeannette Wiltse Name: Jeannette Wiltse Title: Authorized Signatory


 
SIGNATURE PAGE TO VOTING AGREEMENT MKB PARTNERS FUND II, LIMITED PARTNERSHIP, by its general partner, MKB PARTNERS FUND II GP INC. By: /s/ Antonio Occhionero Name: Antonio Occhionero Title: Authorized Signatory MKB PARTNERS FUND II INTERNATIONAL, LIMITED PARTNERSHIP, by its general partner, MKB PARTNERS FUND II GP INC. By: /s/ Antonio Occhionero Name: Antonio Occhionero Title: Authorized Signatory


 
SIGNATURE PAGE TO VOTING AGREEMENT OBELYSK TRANSPORT L.P., by its general partner, OBELYSK TRANSPORT GP INC. By: /s/ John Bitove Name: John Bitove Title: President /s/ John Bitove JOHN BITOVE


 
SIGNATURE PAGE TO VOTING AGREEMENT RELAY VENTURES FUND III L.P, by its general partner, RELAY VENTURES FUND III GP INC. By: /s/ Kevin Talbot Name: Kevin Talbot Title: Director By: /s/ Jeanette Wiltse Name: Jeannette Wiltse Title: Director RELAY VENTURES PARALLEL FUND III L.P., by its general partner, RELAY VENTURES FUND III GP INC. By: /s/ Kevin Talbot Name: Kevin Talbot Title: Director By: /s/ Jeannette Wiltse Name: Jeannette Wiltse Title: Director


 
US-DOCS\137534636.17 SCHEDULE A INVESTORS Name and Address Alate I LP 446 Spadina Road, Suite 303, Toronto, ON M5P 3M2 courtney@alatepartners.com Jeannette@relayventures.com MKB Partners Fund II, Limited Partnership and MKB Partners Fund II International, Limited Partnership 1 Place Ville Marie, Suite 3670, Montreal, QC H3B 3P2 a.occhionero@mkbandco.com Obelysk Transport L.P. and John Bitove TD Canada Trust Tower Brookfield Place, 161 Bay Street, Suite 2300, P.O. Box 222, Toronto ON M5J 2S1 bitove@obelysk.com Relay Ventures Fund III L.P. and Relay Ventures Parallel Fund III L.P. 446 Spadina Road, Suite 303, Toronto, ON M5P 3M2 Kevin@relayventures.com Jeannette@relayventures.com


 
ActiveUS 177081161v.7 US-DOCS\137534636.17 SCHEDULE B FOUNDER STOCKHOLDERS Name and Address Travis VanderZanden c/o Bird Global, Inc. 392 NE 191st Street #20388 Miami, Florida 33179 travis@bird.co


 
ActiveUS 177081161v.7 US-DOCS\137534636.17 EXHIBIT A ADOPTION AGREEMENT This Adoption Agreement (“Adoption Agreement”) is executed on ___________________, 20__, by the undersigned (the “Holder”) pursuant to the terms of that certain Voting Agreement dated as of [ ˜ ], 2022, by and among the Company and certain of its Stockholders, as such Agreement may be amended or amended and restated hereafter (the “Agreement”). Capitalized terms used but not defined in this Adoption Agreement shall have the respective meanings ascribed to such terms in the Agreement. By the execution of this Adoption Agreement, the Holder agrees as follows. 1.1 Acknowledgement. Holder acknowledges that Holder is acquiring certain shares of Class X Common Stock (the “Stock”) as a result of a Permitted Transfer (as defined in the Restated Charter). 1.2 Agreement. Holder hereby (a) agrees that the Shares shall be bound by and subject to the terms of the Agreement and (b) adopts the Agreement with the same force and effect as if Holder were originally a party thereto. 1.3 Notice. Any notice required or permitted by the Agreement shall be given to Holder at the address or facsimile number listed below Holder’s signature hereto. HOLDER: ACCEPTED AND AGREED: By: BIRD GLOBAL, INC. Name and Title of Signatory: ____________ Address: By: Title: Email Address:


 

Execution Version US-DOCS\137537505.8 AMENDMENT NO. 8 TO LOAN AND SECURITY AGREEMENT AMENDMENT NO. 8 TO LOAN AND SECURITY AGREEMENT, dated as of December 30, 2022 (this “Agreement”), by and among each of the Lenders signatory hereto, the Borrower (as defined below), the Holdco Guarantor (as defined below), and Midcap Financial Trust, in its capacity as Administrative Agent. WHEREAS, reference is hereby made to the Loan and Security Agreement, dated as of April 27, 2021 (as amended by the First Amendment to Loan and Security Agreement dated as of June 10, 2021, the Amendment No. 2 to Loan and Security Agreement dated as of October 12, 2021, the Amendment No. 3 to Loan and Security Agreement dated as of April 8, 2022, the Amendment No. 4 to Loan and Security Agreement dated as of April 22, 2022, the Fifth Amendment to Loan and Security Agreement dated July 1, 2022, Amendment No. 6 to Loan and Security Agreement dated as of October 7, 2022, and Amendment No. 7 to Loan and Security Agreement dated as of December 19, 2022, and as further amended, restated, amended and restated, supplemented, or otherwise modified from time to time prior to the date hereof, the “Loan Agreement”), by and among Bird US Opco, LLC, a Delaware limited liability company (the “Borrower”), Bird US Holdco, LLC, a Delaware limited liability company (“Holdco Guarantor”), the Lenders from time to time party thereto, and the Administrative Agent; WHEREAS, (x) the Borrower desires to amend certain terms of the Loan Agreement and (y) the Lenders under the Loan Agreement as in effect immediately prior to the effectiveness of this Agreement (the “Existing Lenders”), have agreed to such amendments and to become bound by the terms of the Loan Agreement (as amended hereby) as Lenders; and WHEREAS, in accordance with Section 14.01 of the Loan Agreement, the Existing Lenders, the Administrative Agent, the Borrower, the Holdco Guarantor and the other Persons party hereto have agreed to amend the Loan Agreement as more fully set forth herein. NOW, THEREFORE, the parties hereto agree as follows: Section 1. Defined Terms; References. (a) Unless otherwise specifically defined herein, each term used herein which is defined in the Loan Agreement has the meaning assigned to such term in the Amended Loan Agreement (as defined below). The rules of construction and other interpretive provisions specified in Section 1.02 of the Amended Loan Agreement shall apply to this Agreement, including terms defined in the preamble and recitals hereto. (b) As used in this Agreement, the following terms have the meanings specified below: “Amended Loan Agreement” shall mean the Loan Agreement, as amended by this Agreement. “Amendment No. 8 Effective Date” shall have the meaning provided in Section 9 hereof. Section 2. Amendment. (a) Amended Loan Agreement. Pursuant to Section 14.01 of the Loan Agreement: 2 US-DOCS\137537505.8 (i) Each of the parties hereto agrees that, effective on the Amendment No. 8 Effective Date, the Loan Agreement (including the Schedules thereto) shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text and stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text and double-underlined text) as set forth in the pages of the Loan Agreement attached as Exhibit A hereto. (ii) Each of the parties hereto agrees that Exhibit B hereto sets forth a clean copy of the Amended Loan Agreement (including the Schedules thereto). (b) Exhibits. Each of the parties hereto agrees that, effective on the Amendment No. 8 Effective Date, Exhibit F to the Loan Agreement is hereby amended and restated by deleting such exhibit in its entirety and replacing such exhibit with the exhibit set forth on Exhibit C hereto. Section 3. Termination of Parent Pledge. On the Amendment No. 8 Effective Date, the Parent Pledge (as defined in the Loan Agreement) shall, without further action, automatically terminate and be of no further force or effect, except for those provisions of the Parent Pledge that by their terms expressly survive such termination. All security interest in and liens on any and all properties and assets of Parent, whether personal, real or mixed, tangible or intangible, granted by, pledged, held, or arising under the Parent Pledge shall be, without further action, released, discharged, and terminated. Parent (or its designee) is authorized to file such UCC termination statements and re-assignments or releases of trademarks, copyrights, and patents as are necessary to release, as of record, the security interests previously recorded by the Collateral Agent (as defined in the Parent Pledge) as Parent may reasonably deem necessary in connection with the termination of the security interests and liens set forth in in this Section 3. Section 4. Termination of the Side Letter. On the Amendment No. 8 Effective Date, the Lender Side Letter (as defined in the Loan Agreement) shall, without further action from the Administrative Agent or any of the Lenders signatory thereto, automatically terminate in whole in accordance with Section 4.4(b) thereof, and the parties thereto hereby agree that they shall not have any continuing rights or obligations thereunder from and after the Amendment No. 8 Effective Date. Section 5. Commitment. On or after January 1, 2024, the Lenders, in their sole discretion, may direct the Administrative Agent to deliver a written notice (the “Commitment Notice”) to the Borrower (which notice may be via e-mail) to extend additional Commitments under the Loan Agreement to the Borrower. Upon the Borrower’s receipt of the Commitment Notice, (i) Schedule I to the Amended Loan Agreement shall automatically be amended to include the dollar amount of the additional Commitments set forth in the Commitment Notice and (ii) the defined term “Commitment Termination Date” in the Amended Loan Agreement shall automatically, without further action of any party, be amended to be July 12, 2024. Section 6. Effect of Agreement; Reaffirmation; Etc. Except as expressly set forth herein or in the Amended Loan Agreement, this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the Loan Agreement or under any other Transaction Document and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Loan Agreement or any other provision of the Loan Agreement or of any other Transaction Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Without limiting the foregoing, after giving effect to this Agreement, (i) each Credit Party acknowledges and agrees that (x) each Transaction Document to which it is a party is hereby confirmed and ratified and shall remain in full force and effect according to its respective terms (in the case of the Loan Agreement,


 
3 US-DOCS\137537505.8 as amended hereby) and (y) each applicable Transaction Document to which it is a party, and all of the Collateral, does and in each case shall continue to, secure the payment and performance of all Borrower Obligations on the terms and conditions set forth therein, and hereby ratifies the security interests granted by it pursuant thereto and (ii) the Holdco Guarantor hereby confirms, reaffirms, and ratifies its continuing unconditional obligations as a guarantor under the Holdco Guarantee to which it is a party on the terms and conditions set forth in the Holdco Guarantee. The parties hereto acknowledge and agree that the amendment of the Loan Agreement pursuant to this Agreement and all other Transaction Documents amended and/or executed and delivered in connection herewith shall not constitute a novation of the Loan Agreement and any such other Transaction Documents as in effect prior to the Amendment No. 8 Effective Date. Section 7. Representations of Credit Parties. Each of the Credit Parties hereby represents and warrants that: (a) the representations and warranties set forth in Section 7.01 of the Amended Loan Agreement shall be true and correct in all material respects on and as of the Amendment No. 8 Effective Date (after giving effect to this Agreement), with the same effect as though made on and as of such date (and deeming (x) this Agreement to be a “Transaction Document” and (y) references to “this Agreement” in Section 7.01 of the Amended Loan Agreement to mean the Amended Loan Agreement, in each case, for purposes of each such representation and warranty), it being understood and agreed that (i) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (ii) any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects (after giving effect to such qualification therein) on and as of the Amendment No. 8 Effective Date; and (b) no Potential Event of Default or Event of Default has occurred and is continuing or would result from the entry into of this Agreement. Section 8. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts) (including by facsimile or other electronic transmission (i.e., a “pdf” or “tif”)), each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile or electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Section 9. Conditions to Effectiveness of this Agreement on the Amendment No. 8 Effective Date. This Agreement shall become effective on the date (the “Amendment No. 8 Effective Date”) when each of the following conditions shall have been satisfied (or waived, as applicable) and, in connection with the foregoing, the execution (which may include telecopy or electronic transmission of a signed signature page of this Agreement) of this Agreement: 4 US-DOCS\137537505.8 (a) Amendment Documents. The Administrative Agent and the Lenders shall have received copies of this Agreement, the Amendment No. 4 to Lease Agreement, the Intercreditor Agreement, the Third Amended and Restated EMEA Guaranty and Pledge Agreement by Bird Rides International Holding, Inc. in favor of the Beneficiaries (as defined therein) (the “Amended EMEA Guaranty”), and the Note Documents (together, the “Amendment Documents”), in each case, executed and delivered by each party thereto. (b) Organizational Documents; Incumbency. The Administrative Agent and the Lenders shall have received (i) true, correct and complete copies of the organizational documents of the Bird Parties or a certification that there has not been any change to such organizational documents since December 19, 2022; (ii) signature and incumbency certificates of the officers of each of the Bird Parties executing the Amendment Documents to which it is a party or certification that there has not been any change to the signature or incumbency of such officers since December 19, 2022; (iii) resolutions of the Board of Directors or similar governing body of each of the Bird Parties approving and authorizing the execution, delivery and performance of this Agreement and the other Amendment Documents to which it is a party or by which it or its assets may be bound as of the Amendment No. 8 Effective Date, certified as of the Amendment No. 8 Effective Date by a Responsible Officer as being in full force and effect without modification or amendment; and (iv) a good standing certificate from the applicable Governmental Authority of each of the Bird Parties’ jurisdiction of incorporation, organization or formation dated a recent date prior to the Amendment No. 8 Effective Date. (c) Transaction Costs. The Borrower shall have delivered to the Existing Lenders the Borrower’s reasonable best estimate of the fees, costs, and expenses payable by the Parent or the Borrower on or before the Amendment No. 8 Effective Date in connection with the transactions contemplated by the Amendment Documents, and the Borrower shall have paid all fees and expenses of the Administrative Agent and the Existing Lenders incurred in connection with this Agreement (including, for the avoidance of doubt, all legal and advisor fees, including but not limited to the legal fees of Paul, Weiss, Rifkind Wharton and Garrison LLP). (d) Organizational Documents; Incumbency of Bird Rides International Holding, Inc. The Administrative Agent and the Lenders shall have received (i) true, correct and complete copies of the organizational documents of Bird Rides International Holding, Inc. or a certification that there has not been any change to such organizational documents since December 19, 2022; (ii) signature and incumbency certificates of the officers of Bird Rides International Holding, Inc. or certification that there has not been any change to the signature or incumbency of such officers since December 19, 2022; (iii) resolutions of the Board of Directors or similar governing body of Bird Rides International Holding, Inc. approving and authorizing the execution, delivery and performance of the Amendment Documents to which it is a party or by which it or its assets may be bound as of the Amendment No. 8 Effective Date, certified as of the Amendment No. 8 Effective Date by a Responsible Officer as being in full force and effect without modification or amendment; and (iv) a good standing certificate from the applicable Governmental Authority of Bird Rides International Holding, Inc.’s jurisdiction of incorporation, organization or formation dated a recent date prior to the Amendment No. 8 Effective Date. (e) Opinions of Counsel. Lenders and their respective counsel shall have received an executed copy of a favorable written opinion, dated as of the Amendment No. 8 Effective Date, of Latham & Watkins LLP, counsel to the Bird Parties, covering corporate, enforceability and security interest matters with respect to this Agreement, the Amended EMEA Guaranty, and Amendment No. 4 to Lease Agreement in form and substance satisfactory to the Lenders (and each Bird Party instructs such counsel to deliver such opinions to the Administrative Agent and the Lenders).


 
5 US-DOCS\137537505.8 (f) Liens. The Administrative Agent and the Lenders shall have received the results of a recent search, by a Person satisfactory to the Lenders, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of the Bird Parties, together with copies of all such filings disclosed by such search. (g) Amendment No. 8 Effective Date Certificate. The Bird Parties shall have delivered to the Administrative Agent and the Lenders an executed certificate in the form of an amended Exhibit F to the Loan Agreement, as set forth in Exhibit C hereto, together with all attachments thereto. (h) Due Diligence. Other than changes occurring in the ordinary course of business, no information or materials are or should have been available to the Bird Parties as of the Amendment No. 8 Effective Date that are materially inconsistent with the materials previously provided to the Lenders for their due diligence review of the Bird Parties and their respective businesses. (i) No Material Adverse Change. Since December 15, 2022, no event, circumstance, or change shall have occurred that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect. (j) KYC; Beneficial Ownership. The Administrative Agent and the Lenders shall have received from the Bird Parties all documentation and information required under the applicable “know your customer” requirements of the Anti-Terrorism Laws. (k) Prepayment of Loans. (i) On or prior to the Amendment No. 8 Effective Date, the Borrower shall have made a voluntary prepayment of the Class A Loans (as defined in the Loan Agreement immediately prior to the Amendment No. 8 Effective Date) pursuant to Section 2.02(e) of the Loan Agreement in an aggregate principal amount of not less than $1,000,000 (the “Prepayment”). Notwithstanding anything to the contrary in Section 2.2(e) of the Loan Agreement, any accrued and unpaid Interest and Fees in respect of the Prepayment shall be payable in accordance with the Priority of Payments, rather than paid together with the Prepayment on or prior to the Amendment No. 8 Effective Date. (ii) Prior to or substantially concurrently with the occurrence of the Amendment No. 8 Effective Date, the Borrower shall have prepaid the Class B Loans (as defined in the Loan Agreement immediately prior to the Amendment No. 8 Effective Date). (l) Equity Documentation. (i) Prior to or substantially concurrently with the occurrence of the Amendment No. 8 Effective Date, the issuance of the Notes (as defined in the Amended Loan Agreement) to the Cash Consideration Purchasers (as defined in the Note Purchase Agreement (as defined in the Amended Loan Agreement)) and receipt by Bird Global (as defined in the Amended Loan Agreement) of the proceeds thereof shall have been consummated in all material respects in accordance with the Note Purchase Agreement (as defined in the Amended Loan Agreement), as confirmed to the Administrative Agent (or its representatives) in writing (which may be by email) by representatives of Bird Global, Inc. (ii) Prior to or substantially concurrently with the occurrence of the Amendment No. 8 Effective Date, Bird Global, Inc. shall have entered, as confirmed to the Administrative Agent (or its representatives) in writing (which may be by email) by 6 US-DOCS\137537505.8 representatives of Bird Global, Inc., into the Share Purchase Agreement (the “Share Purchase Agreement”), by and among Bird Global, Inc., the Purchaser thereunder (which shall be a wholly-owned Subsidiary of Bird Global, Inc.), Bird Canada, Inc., and the Sellers party thereto, which provides for the acquisition by the Purchaser of all the equity interests in Bird Canada, Inc. held by the Sellers and provides that the closing of the transaction contemplated by the Share Purchase Agreement shall occur automatically on January 3, 2023 and not be subject to the satisfaction of any additional conditions precedent other than the passage of time. (m) Intercreditor Agreement. Prior to or substantially concurrently with the occurrence of the Amendment No. 8 Effective Date, the Administrative Agent, the purchasers from time to time party to the Note Purchase Agreement (as defined in the Amended Credit Agreement), and the Note Collateral Agent (as defined in the Amended Credit Agreement) shall have entered into the Intercreditor Agreement (as defined in the Amended Loan Agreement) and the Borrower, the Holdco Guarantor, Bird Rides, Inc., Bird Rides International Holding, Inc., Bird Global, Inc., 1393631 B.C. Unlimited Liability Company, and Bird Canada Inc. shall have acknowledged such Intercreditor Agreement, and the conditions precedent (if any) to the Intercreditor Agreement shall have been satisfied (or waived) in accordance with its terms. Section 10. No Novation. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Loan Agreement or instruments securing the same, which shall remain in full force and effect, except to any extent modified hereby or by instruments executed concurrently herewith. Nothing implied in this Agreement or in any other document contemplated hereby shall discharge or release the Lien or priority of any Transaction Document or any other security therefor or otherwise be construed as a release or other discharge of any of the Credit Parties under any Transaction Document from any of its obligations and liabilities as a borrower, guarantor or pledgor under any of the Transaction Documents, except, in each case, to any extent modified hereby. Section 11. Miscellaneous. Sections 14.07, 14.10 and 14.11 of the Loan Agreement are incorporated herein by reference and apply mutatis mutandis. Section 12. Transaction Document. This Agreement is a Transaction Document and all references to a “Transaction Document” in the Amended Loan Agreement or any other Transaction Document (including any such reference in any representation or warranty in the Amended Loan Agreement or any other Transaction Document) shall be deemed to include this Agreement. [signature pages follow]


 
[Signature Page to Amendment No. 8] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. BIRD US OPCO, LLC, as Borrower By: /s/ Shane Torchiana Name: Shane Torchiana Title: Chief Executive Officer BIRD US HOLDCO, LLC, as Holdco Guarantor By: /s/ Shane Torchiana Name: Shane Torchiana Title: Chief Executive Officer [Signature Page to Amendment No. 8] BIRD CANADA INC., solely with respect to Section 4 By: /s/ Stewart Lyons Name: Stewart Lyons Title: Chief Executive Officer


 
[Signature Page to Amendment No. 8] MIDCAP FINANCIAL TRUST, as Administrative Agent By: Apollo Capital Management, L.P., its investment manager By: Apollo Capital Management, GP, LLC, its general partner By: /s/ Maurice Amsellem Name: Maurice Amsellem Title: Authorized Signatory [Signature Page to Amendment No. 8] MIDCAP FUNDING V TRUST, as a Lender By: Apollo Capital Management, L.P., its investment manager By: Apollo Capital Management, GP, LLC, its general partner By: /s/ Maurice Amsellem Name: Maurice Amsellem Title: Authorized Signatory


 
[Signature Page to Amendment No. 8] MIDCAP FINANCIAL INVESTMENT CORPORATION (formerly known as Apollo Investment Corporation), as a Lender By: /s/ Kristin Hester Name: Kristin Hester Title: Chief Legal Officer US-DOCS\137537506.9 Exhibit A Amended Loan Agreement [See attached.]


 
EXHIBIT A Conformed through: First Amendment to Loan and Security Agreement dated as of June 10, 2021 Amendment No. 2 to Loan and Security Agreement dated as of October 12, 2021 Amendment No. 3 to Loan and Security Agreement dated as of April 8, 2022 Amendment No. 4 to Loan and Security Agreement dated as of April 22, 2022 Amendment No. 5 to Loan and Security Agreement dated as of July 1, 2022 Amendment No. 6 to Loan and Security Agreement dated as of October 7, 2022 Amendment No. 7 to Loan and Security Agreement dated as of December 19, 2022 Amendment No. 8 to Loan and Security Agreement dated as of December 30, 2022 LOAN AND SECURITY AGREEMENT Dated as of April 27, 2021 by and among BIRD US OPCO, LLC, as Borrower, BIRD US HOLDCO, LLC, as Holdco Guarantor, THE PERSONS FROM TIME TO TIME PARTY HERETO, as Lenders, and MIDCAP FINANCIAL TRUST, as Administrative Agent TABLE OF CONTENTS Page -i- US-DOCS\137537506.4 US-DOCS\137537506.9 ARTICLE I DEFINITIONS .......................................................................................................... 1 SECTION 1.01. Certain Defined Terms ............................................................................ 1 SECTION 1.02. Other Interpretative Matters .................................................................. 19 ARTICLE II TERMS OF THE LOANS ..................................................................................... 20 SECTION 2.01. Loans ..................................................................................................... 20 SECTION 2.02. Making of Loans; Repayment of Loans ................................................ 20 SECTION 2.03. Interest and Fees .................................................................................... 21 SECTION 2.04. Records of Loans .................................................................................. 21 ARTICLE III ACCOUNTS AND COLLECTIONS ................................................................... 21 SECTION 3.01. Collection Account ............................................................................... 21 SECTION 3.02. [Reserved] ............................................................................................. 22 SECTION 3.03. Collections ............................................................................................ 22 ARTICLE IV SETTLEMENT PROCEDURES AND PAYMENT PROVISIONS ................... 22 SECTION 4.01. Priority of Payments .............................................................................. 22 SECTION 4.02. Payments and Computations, Etc. ......................................................... 23 ARTICLE V INCREASED COSTS; FUNDING LOSSES; TAXES; ILLEGALITY; SECURITY INTEREST .................................................................................................. 23 SECTION 5.01. Increased Costs ..................................................................................... 23 SECTION 5.02. Adjusted Term SOFR............................................................................ 25 SECTION 5.03. Taxes ..................................................................................................... 26 ARTICLE VI CONDITIONS TO EFFECTIVENESS AND CREDIT EXTENSIONS ............. 29 SECTION 6.01. Conditions Precedent to Effectiveness of this Agreement .................... 29 SECTION 6.02. Conditions Precedent to Each Credit Extension ................................... 31 ARTICLE VII REPRESENTATIONS AND WARRANTIES ................................................... 33 SECTION 7.01. Representations and Warranties of the Credit Parties ........................... 33 ARTICLE VIII COVENANTS .................................................................................................... 38 SECTION 8.01. Covenants of the Credit Parties ............................................................. 38 SECTION 8.02. Separate Existence of the Credit Parties ............................................... 44 ARTICLE IX SECURITY INTEREST ....................................................................................... 46 SECTION 9.01. Security Interest .................................................................................... 46 ARTICLE X EVENTS OF DEFAULT ....................................................................................... 47 SECTION 10.01. Events of Default ................................................................................ 47


 
TABLE OF CONTENTS (continued) Page -ii- US-DOCS\137537506.9 SECTION 10.02. Scooter IP ............................................................................................ 50 ARTICLE XI THE ADMINISTRATIVE AGENT ..................................................................... 51 SECTION 11.01. Appointment and Authorization .......................................................... 51 SECTION 11.02. The Administrative Agent and Affiliates. ........................................... 51 SECTION 11.03. Action by the Administrative Agent ................................................... 51 SECTION 11.04. Consultation with Experts ................................................................... 51 SECTION 11.05. Liability of the Administrative Agent ................................................. 51 SECTION 11.06. Indemnification ................................................................................... 52 SECTION 11.07. Right to Request and Act on Instructions ........................................... 52 SECTION 11.08. Credit Decision ................................................................................... 52 SECTION 11.09. Collateral Matters ................................................................................ 53 SECTION 11.10. Agency for Perfection ......................................................................... 53 SECTION 11.11. Notice of Default ................................................................................. 53 SECTION 11.12. Assignment by the Administrative Agent; Resignation of the Administrative Agent; Successor the Administrative Agent ................ 53 SECTION 11.13. Payment and Sharing of Payment ....................................................... 54 SECTION 11.14. Loan Payments .................................................................................... 55 SECTION 11.15. Return of Payments ............................................................................. 55 SECTION 11.16. Sharing of Payments ........................................................................... 55 SECTION 11.17. Right to Perform, Preserve, and Protect .............................................. 55 ARTICLE XII [RESERVED] ...................................................................................................... 56 ARTICLE XIII INDEMNIFICATION ........................................................................................ 56 SECTION 13.01. Indemnities by the Borrower ............................................................... 56 ARTICLE XIV MISCELLANEOUS .......................................................................................... 57 SECTION 14.01. Amendments, Etc. ............................................................................... 57 SECTION 14.02. Notices, Etc. ........................................................................................ 57 SECTION 14.03. Assignability; Addition of Lenders ..................................................... 57 SECTION 14.04. Costs and Expenses ............................................................................. 60 SECTION 14.05. Invoices for Indemnified Amounts ..................................................... 60 SECTION 14.06. Confidentiality .................................................................................... 60 Deleted: 59 TABLE OF CONTENTS (continued) Page -iii- US-DOCS\137537506.9 SECTION 14.07. GOVERNING LAW ........................................................................... 61 SECTION 14.08. Execution in Counterparts ................................................................... 61 SECTION 14.09. Integration; Binding Effect; Survival of Termination ......................... 62 SECTION 14.10. CONSENT TO JURISDICTION ........................................................ 62 SECTION 14.11. WAIVER OF JURY TRIAL ............................................................... 63 SECTION 14.12. Ratable Payments ................................................................................ 63 SECTION 14.13. Limitation of Liability ......................................................................... 63 SECTION 14.14. Intent of the Parties ............................................................................. 64 SECTION 14.15. USA Patriot Act .................................................................................. 64 SECTION 14.16. Right of Setoff ..................................................................................... 64 SECTION 14.17. Severability ......................................................................................... 64 SECTION 14.18. Mutual Negotiations ............................................................................ 64 SECTION 14.19. Captions and Cross References ........................................................... 64 SCHEDULES SCHEDULE I – Commitments SCHEDULE II – Amortization Schedule SCHEDULE III – [Reserved] SCHEDULE IV – Accounts SCHEDULE V – Notice Addresses SCHEDULE VI - Scooter Cost SCHEDULE VII - Post-Closing Covenants EXHIBITS EXHIBIT A – Form of Loan Request EXHIBIT B – Form of Payment Date Certificate EXHIBIT C – Form of Assignment and Acceptance Agreement EXHIBIT D – Form of Payment Notification EXHIBIT E – Form of Solvency Certificate EXHIBIT F – Form of Closing Date Certificates EXHIBIT G – U.S. Tax Compliance Certificates EXHIBIT H – Form of Data Tape EXHIBIT I – Scope of AUP Reports Deleted: 62


 
US-DOCS\137537506.9 This LOAN AND SECURITY AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”) is entered into as of April 27, 2021 by and among the following parties: (i) Bird US Opco, LLC (the “Borrower”); (ii) Bird US Holdco, LLC (the “Holdco Guarantor” and together with the Borrower, the “Credit Parties” and individually, a “Credit Party”); (ii) the Persons from time to time party hereto as Lenders; and (iii) MidCap Financial Trust (“MidCap”), as Administrative Agent. PRELIMINARY STATEMENTS The Borrower has acquired and will acquire from time to time certain electronic scooter vehicles (such vehicles owned by the Borrower from time to time, “Scooters”) from Bird Rides, Inc. (the “Parent”) pursuant to the Contribution Agreements. The Borrower has requested that the Lenders make Loans from time to time to the Borrower, on the terms, and subject to the conditions set forth herein, secured by, among other things, the Scooters. In consideration of the mutual agreements, provisions and covenants contained herein, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE I DEFINITIONS SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined): “Account Bank” means, with respect to the Collection Account, the bank listed on Schedule IV hereof. “Account Control Agreement” means each agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and the Account Bank, governing the terms of the Collection Account that (i) provides the Administrative Agent with control within the meaning of the UCC over the account subject to such agreement and (ii) by its terms, may not be terminated or canceled by the related Account Bank without the written consent of the Administrative Agent or upon no less than thirty (30) days prior written notice to the Administrative Agent, as the same may be amended, restated, supplemented or otherwise modified from time to time. “Adjusted Term SOFR” means a per annum rate of interest equal to the greater of (a) 1.00% and (b) the sum of (x) Term SOFR plus (y) 0.1% (10 basis points). “Administrative Agent” means MidCap, in its capacity as contractual representative for the Lenders, and any successor thereto in such capacity appointed pursuant to Article XI or Section 14.03(f). 2 US-DOCS\137537506.9 “Administrative Agent Fee” means a fee as set forth in the Fee Letter between the Borrower and the Administrative Agent, due in accordance with the terms thereof, and paid in accordance with the Priority of Payments. “Advance Rate” means, with respect to each Scooter and as of any date of determination, (a) on any day prior to but excluding the Amendment No. 2 Initial Funding Date, 70%, (b) from and after the Amendment No. 2 Initial Funding Date until and including December 31, 2021, 97.50%, (c) from and after January 1, 2022 until and including the date which is the first anniversary of the Amendment No. 2 Initial Funding Date, 90%, and (d) from and after the day after the date which is the first anniversary of the Amendment No. 2 Initial Funding Date, 80%. “Adverse Claim” means any ownership interest or claim, mortgage, deed of trust, pledge, lien, security interest, hypothecation, charge or other encumbrance or security arrangement of any nature whatsoever, whether voluntarily or involuntarily given, including, but not limited to, any conditional sale or title retention arrangement, and any assignment, deposit arrangement or lease intended as, or having the effect of, security and any filed financing statement or other notice of any of the foregoing (whether or not a lien or other encumbrance is created or exists at the time of the filing); it being understood that any of the foregoing in favor of, or assigned to, the Administrative Agent (for the benefit of the Secured Parties) shall not constitute an Adverse Claim. “Advisors” has the meaning set forth in Section 14.06(c). “Affected Person” means the Administrative Agent and each Lender. “Affiliate” means, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person. For purposes of this definition, control of a Person shall mean the power, direct or indirect, (x) to vote 25% or more of the securities having ordinary voting power for the election of directors or managers of such Person or (y) to direct or cause the direction of the management and policies of such Person, in either case whether by ownership of securities, contract, proxy or otherwise. “Aggregate Capital” means, at any time of determination, the aggregate principal amount of all Loans made hereunder as of such time. “Agreement” has the meaning set forth in the preamble to this Agreement. “Amendment No. 2” means that certain Amendment No. 2 to Loan and Security Agreement dated as of October 12, 2021, by and among the Borrower, the Holdco Guarantor, Midcap Financial Trust, in its capacity as Administrative Agent, and the Lenders signatory thereto. “Amendment No. 3” means that certain Amendment No. 3 to Loan and Security Agreement dated as of April 8, 2022, by and among the Borrower, the Holdco Guarantor, Midcap Financial Trust, in its capacity as Administrative Agent, and the Lenders signatory thereto. “Amendment No. 6” means that certain Amendment No. 6 to Loan and Security Agreement dated as of October 7, 2022, by and among the Borrower, the Holdco Guarantor, Midcap Financial Trust, in its capacity as Administrative Agent, and the Lenders signatory thereto. “Amendment No. 7” means that certain Amendment No. 7 to Loan and Security Agreement dated as of December 19, 2022, by and among the Borrower, the Holdco Guarantor, Midcap Financial Trust, in its capacity as Administrative Agent, and the Lenders signatory thereto.


 
3 US-DOCS\137537506.9 “Amendment No. 8” means that certain Amendment No. 8 to Loan and Security Agreement dated as of December 30, 2022, by and among the Borrower, the Holdco Guarantor, Midcap Financial Trust, in its capacity as Administrative Agent, and the Lenders signatory thereto. “Amendment No. 2 Effective Date” has the meaning given to such term in Amendment No. 2. “Amendment No. 3 Effective Date” has the meaning given to such term in Amendment No. 3. “Amendment No. 6 Effective Date” has the meaning given to such term in Amendment No. 6. “Amendment No. 7 Effective Date” has the meaning given to such term in Amendment No. 7. “Amendment No. 8 Effective Date” has the meaning given to such term in Amendment No. 8. “Amendment No. 2 Initial Funding Date” means November 5, 2021 i.e. the date of the first Credit Extension occurring on or after the Amendment No. 2 Effective Date and after the SPAC Transaction has been consummated. “Amendment No. 6 Signing Date” has the meaning given to such term in Amendment No. 6. “Amortization Amount” means, with respect to each Payment Date, the amount listed on Schedule II hereof corresponding to the immediately preceding month; provided, that (a) the Amortization Amount shall be $0 for the Payment Dates occurring in November 2021, December 2021, January 2022, February 2022, March 2022, and April 2022, and (b) the Amortization Amount shall be $5,000,000.00 for the Payment Date occurring in October 2022 and shall first be applied to any outstanding EMEA Loans and the excess, if any, shall be applied to any outstanding U.S. Loans (each as defined herein immediately prior to the Amendment No. 6 Effective Date). “Anti-Terrorism Laws” means any Applicable Law relating to terrorism financing, trade sanctions programs and embargoes, import/export licensing, money laundering or bribery, and any regulation, order, or directive promulgated, issued or enforced pursuant to such Applicable Laws, all as amended, supplemented or replaced from time to time. “Applicable Law” means, with respect to any Person, (x) all provisions of law, statute, treaty, constitution, ordinance, rule, regulation, ordinance, requirement, restriction, permit, executive order, certificate, decision, directive or order of any Governmental Authority applicable to such Person or any of its property and (y) all judgments, injunctions, orders, writs, decrees and awards of all courts and arbitrators in proceedings or actions in which such Person is a party or by which any of its property is bound. For the avoidance of doubt, FATCA shall constitute an “Applicable Law” for all purposes of this Agreement. “Applicable Margin” means 7.50% per annum. “Assignment and Acceptance Agreement” means an assignment and acceptance agreement entered into by a Lender, an Eligible Assignee and the Administrative Agent, and, if required, the Credit Parties, pursuant to which such Eligible Assignee may become a party to this Agreement, in substantially the form of Exhibit C hereto. “Attorney Costs” means and includes all fees, costs, expenses and disbursements of any law firm or other external counsel but excludes disbursements of internal counsel. 4 US-DOCS\137537506.9 “Bankruptcy Code” means the United States Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et seq.), as amended from time to time. “Base Rate” means the per annum rate of interest announced, from time to time, within Wells Fargo at its principal office in San Francisco as its “prime rate,” with the understanding that the “prime rate” is one of Wells Fargo’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as Wells Fargo may designate; provided, however, that the Administrative Agent may, upon prior written notice to Borrower, choose a reasonably comparable index or source to use as the basis for the Base Rate. “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230. “Bird Global” means Bird Global, Inc., a Delaware corporation. “Bird Party” means the Credit Parties and the Parent. “Bird Transaction Party” means the Credit Parties, the Parent, and Bird Rides International Holding, Inc. “Borrower” has the meaning set forth in the preamble to this Agreement. “Borrower Indemnified Amounts” has the meaning set forth in Section 13.01(a). “Borrower Indemnified Party” has the meaning set forth in Section 13.01(a). “Borrower Obligations” means all present and future indebtedness, reimbursement obligations, and other liabilities and obligations (howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or due or to become due) of the Borrower to any Lender, Borrower Indemnified Party and/or any Affected Person, arising under or in connection with this Agreement or any other Transaction Document or the transactions contemplated hereby or thereby, and shall include, without limitation, the principal amount of the Loans, all Interest on the Loans, all Fees and all other amounts due or to become due from the Borrower under the Transaction Documents (whether in respect of fees, costs, expenses, indemnifications or otherwise), including, without limitation, interest, fees and other obligations that accrue after the commencement of any Insolvency Proceeding with respect to the Borrower (in each case whether or not allowed as a claim in such proceeding). “Business Combination Agreement” means that certain Business Combination Agreement dated as of May 11, 2021, by and among Bird Rides, Inc., Bird Global, Inc., Switchback II Corporation, and Maverick Merger Sub Inc., as in effect on the Second Amendment Effective Date. “Business Day” means any day (other than a Saturday or Sunday) on which banks are not authorized or required to close in New York City, New York or San Francisco, California. “Capitalized Lease Obligations” shall mean, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) in accordance with GAAP. “Certificate of Beneficial Ownership” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.


 
5 US-DOCS\137537506.9 “Change in Control” means the occurrence of any of the following: (a) The Holdco Guarantor ceases to own, directly, 100% of the issued and outstanding equity interests of the Borrower free and clear of all Adverse Claims; (b) Parent ceases to own, directly or indirectly, 100% of the issued and outstanding equity interests of the Holdco Guarantor free and clear of all Adverse Claims; (c) at any time prior to the consummation of a Qualifying IPO, with respect to Parent, either (i) the Permitted Holders in the aggregate shall at any time cease to have, directly or indirectly, the power to vote or direct the voting of at least 50.1% of the Voting Stock of Parent or (ii) the acquisition of direct or indirect Control of Parent by any Person other than the Permitted Holders; or (d) at any time after the consummation of a Qualifying IPO (1) any Person (other than a Permitted Holder) or (2) Persons (other than one or more Permitted Holders) constituting a “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under such Exchange Act), directly or indirectly, of Equity Interests representing more than forty percent (40%) of the aggregate ordinary Voting Stock of Parent and the percentage of aggregate ordinary Voting Stock so held is greater than the percentage of the aggregate ordinary Voting Stock represented by the Equity Interests of Parent beneficially owned, directly or indirectly, in the aggregate by the Permitted Holders; unless, in the case of either clause (c) or clause (d) above, the Permitted Holders have, at such time, the right or the ability by voting power, contract or otherwise to elect or designate for election at least a majority of the board of directors of Parent. For the avoidance of doubt, the SPAC Transaction shall not constitute a Change in Control but shall constitute a Qualifying IPO. Notwithstanding anything to the contrary herein or any other Transaction Document, any transfer of the Equity Interests in Parent to (x) the Note Collateral Agent or its nominee, (y) the holders of the Notes, or (z) any Subsidiary or Affiliate of any holder of the Notes that is acceptable to the Administrative Agent in its reasonable discretion, in each case following the enforcement and exercise of rights and remedies by the Note Collateral Agent under the terms of the Note Documents of the pledge by Bird Global of the Equity Interests it owns in Parent shall not constitute a Change in Control. “Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided, that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to the agreements reached by the Basel Committee on Banking Supervision in “Basel III: A Global Regulatory Framework for More Resilient Banks and 6 US-DOCS\137537506.9 Banking Systems” (as amended, supplemented or otherwise modified or replaced from time to time), shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued. “Closing Date” means April 27, 2021. “Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time. “Collateral” has the meaning set forth in Section 9.01(a). “Collection Account” means the account established pursuant to Section 3.01 in the name of the Borrower and maintained at the Account Bank pursuant to an Account Control Agreement for the purpose of receiving Collections. “Collection Period” means each calendar month, provided that the first Collection Period shall begin on (and include) the Closing Date and end on (and include) May 31, 2021, and the last Collection Period shall end on (but exclude) the Final Payout Date. “Collections” means all amounts transferred to the Borrower pursuant to the Scooter Lease from time to time, and any other amounts received by the Borrower in respect of the Collateral or pursuant to the Transaction Documents, including, without limitation, any Insurance Proceeds in respect of the Collateral and, solely to the extent required by Section 8.01(z), refunds of tariffs in respect of any Scooters, and all capital contributions made to the Borrower. “Commitment” means, with respect to any Lender, the maximum aggregate amount which such Person is obligated to lend or pay hereunder on account of the Loans, as set forth on Schedule I or in such other agreement pursuant to which it became a Lender, as such amount may be modified in connection with any subsequent assignment pursuant to Section 14.03, and as such aggregate amount is reduced by any Loan funded by such Lender hereunder. If the context so requires, “Commitment” also refers to a Lender’s obligation to make Loans hereunder in accordance with this Agreement, as the context so requires. “Commitment Termination Date” means November 30, 2022. “Contribution Agreements” means, collectively, the Contribution Agreement dated the date hereof between Parent and Holdco Guarantor and the Contribution Agreement dated the date hereof between Holdco Guarantor and Borrower, in each case, contributing the Scooters and other assets described therein. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Cost” means, with respect to each Scooter, an amount listed on Schedule VI corresponding to the model of such Scooter. Schedule VI shall be updated from time to time by agreement between the Borrower and the Lenders, including prior to each Credit Extension, to reflect any change in invoiced costs or tariffs applicable to, or book value of, each model of Scooter. “Covered Taxes” has the meaning set forth in Section 5.01(a)(ii). “Credit Extension” means the making of a Loan.


 
7 US-DOCS\137537506.9 “Credit Parties” has the meaning set forth in the preamble to this Agreement. “Debt” of any Person shall mean, if and to the extent (other than with respect to clause (i)) the same would constitute indebtedness or a liability on a balance sheet prepared in accordance with GAAP, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets purchased by such Person, (d) all obligations of such Person issued or assumed as the deferred purchase price of property or services (other than such obligations accrued in the ordinary course), to the extent that the same would be required to be shown as a long term liability on a balance sheet prepared in accordance with GAAP, (e) all Capitalized Lease Obligations of such Person, (f) all net payments that such Person would have to make in the event of an early termination, on the date Debt of such Person is being determined, in respect of outstanding hedging agreements, (g) the principal component of all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit, (h) the principal component of all obligations of such Person in respect of bankers’ acceptances, and (i) any Guaranty by such Person of Debt described in clauses (a) to (h) above. “Disqualified Institutions” means (a) any Person that was identified by name in a written list provided by the Bird Parties to the Administrative Agent on or prior to the Amendment No. 2 Effective Date, 2021, (b) competitors of the Bird Parties identified in writing by name by the Bird Parties from time to time to the Administrative Agent, (c) any Affiliate of a competitor identified pursuant to clause (b) above identified in writing by name by the Bird Parties from time to time to the Administrative Agent, and (d) any Affiliate of a Person identified pursuant to clauses (a) or (b) above that is clearly identifiable as an Affiliate of such Person on the basis of such Person’s name, in each case of clauses (c) and (d), other than any Affiliate constituting an institutional lender, bona fide debt fund, or investment vehicle that is engaged in making, purchasing, holding, or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business which is managed, sponsored, or advised by any Person controlling, controlled by, or under common control with such competitor and for which no personnel involved with the investment of such competitor (x) makes (or has the right to make or participates with others in making) any investment decisions or (y) has access to information (other than information publicly available) relating to the Bird Parties; provided, that no Person that is a Lender at the time of such identification may be designated as a Disqualified Institution. “Dollars” and “$” each mean the lawful currency of the United States of America. “Effective Date” has the meaning set forth in Section 6.01 of this Agreement. “Eligible Assignee” means (a) any Lender or any of its Affiliates, (b) any Person managed by a Lender or any of its Affiliates and (c) any other financial or other institution; provided, that no Disqualified Institution shall be an Eligible Assignee. “Eligible Scooter” means, on any day, a Scooter (a) that is located in a Municipality in the United States; (b) to which the Borrower has good title, free and clear of Adverse Claims, except for Permitted Liens; (c) that is in good working order and eligible to be rented or deployed to customers (it being agreed that any Scooter that is in good working order and would otherwise be eligible for rent or deployment to customers but for the fact that it has either not been deployed or has been removed from the road by the Servicer, in each case in accordance with its customary practices for managing the seasonality of the fleet of Scooters shall nonetheless satisfy this clause (c)); (d) (x) on any day prior to the Amendment No. 2 Initial Funding Date, that is a Bird 2 model or newer, provided, that at any time, up to 25% of all Scooters may be Bird 0 or Bird 1 model scooters, and (y) on any day on or after the Amendment No. 2 Initial Funding Date, that is a Bird 0 model or newer; (e) for which Bird has all Government Approvals; and (f) 8 US-DOCS\137537506.9 from and after the date that is sixty (60) days after the Closing Date (or such later date as may be agreed by the Administrative Agent in its sole discretion), that is not an Excess Concentration Scooter. “EMEA Guaranty and Pledge Agreement” means that certain second amended and restated guaranty and pledge agreement dated the Amendment No. 6 Effective Date and made by Bird Rides International Holding, Inc. (the “EMEA Guarantor”) in favor of the Administrative Agent. “EMEA Guarantor Collateral” means “EMEA Guarantor Collateral” as defined in the EMEA Guaranty and Pledge Agreement. “EMEA Dutch Pledge” means that certain Deed of Pledge Over Registered Shares dated as of May 18, 2022 by Bird Rides International Holding, Inc. as pledgor, Bird Rides Europe B.V. as company and the Administrative Agent as pledgee. “Equity Interests” of any person shall mean any and all shares, interests, rights to purchase or otherwise acquire, warrants, options, participations or other equivalents of or interests in (however designated) equity or ownership of such person, including any preferred stock, any limited or general partnership interest and any limited liability company membership interest, and any securities or other rights or interests convertible into or exchangeable for any of the foregoing. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any rule or regulation issued thereunder. “ERISA Affiliate” means, with respect to any Person, any corporation, trade or business which together with the Person is a member of a controlled group of corporations or a controlled group of trades or businesses and would be deemed a “single employer” within the meaning of Sections 414(b), (c), (m) of the Code or Section 4001(b) of ERISA. “Event of Bankruptcy” shall be deemed to have occurred with respect to a Person if: (a) a case or other proceeding shall be commenced, without the application or consent of such Person, in any court, seeking the liquidation, reorganization, debt arrangement, dissolution, winding up, or composition or readjustment of debts of such Person, the appointment of a trustee, receiver, custodian, liquidator, assignee, sequestrator or the like for such Person or all or any substantial part of its assets, or any similar action with respect to such Person under any law relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts, and such case or proceeding shall continue undismissed, or unstayed and in effect, for a period of sixty (60) consecutive days; or an order for relief in respect of such Person shall be entered in an involuntary case under the federal bankruptcy laws or other similar laws now or hereafter in effect; or (b) such Person shall commence a voluntary case or other proceeding under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law now or hereafter in effect, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) for such Person or for any substantial part of its property, or shall make any general assignment for the benefit of creditors; or (c) the board of directors of such Person (if such Person is a corporation or similar entity) shall vote to implement any of the actions set forth in clause (b) above.


 
9 US-DOCS\137537506.9 “Event of Default” has the meaning set forth in Section 10.01. For the avoidance of doubt, any Event of Default that occurs shall be deemed to be continuing at all times thereafter unless and until waived in accordance with Section 14.01. “Excess Concentration Scooter” means each Scooter operated in a Municipality in which more than 20% of the Borrower’s scooters are located. “Exchange Act” means the Securities Exchange Act of 1934, as amended. “Excluded Taxes” means any of the following Taxes imposed on or with respect to an Affected Person or required to be withheld or deducted from a payment to an Affected Person: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i) imposed as a result of such Affected Person being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in the Loans or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires an interest in a Loan or its Commitment or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 5.03, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Affected Person’s failure to comply with Section 5.03(d) and (d) any Taxes imposed pursuant to FATCA. “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any applicable intergovernmental agreement entered into between the United States and any other Governmental Authority in connection with the implementation of the foregoing and any fiscal or regulatory legislation, rules or official practices adopted pursuant to any such intergovernmental agreement. “Federal Funds Rate” means, for any day, the rate of interest per annum (rounded upwards, if necessary, to the nearest whole multiple of 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided, however, that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day, and (b) if no such rate is so published on such next preceding Business Day, the Federal Funds Rate for such day shall be the average rate quoted to the Administrative Agent on such day on such transactions as determined by the Administrative Agent. “Fee Letter” has the meaning set forth in Section 2.03(a). “Fees” has the meaning set forth in Section 2.03(a). “Final Maturity Date” means (a) January 13, 2025 or (b) such earlier date on which the Loans and all other Borrower Obligations become due and payable pursuant to Section 10.01. “Final Payout Date” means the date on or after the Commitment Termination Date when all Borrower Obligations (other than unasserted or contingent indemnification claims) shall have been paid 10 US-DOCS\137537506.9 in full and all other amounts owing to the Lenders, the Administrative Agent, and any other Borrower Indemnified Party or Affected Person hereunder and under the other Transaction Documents have been paid in full other than unasserted or contingent indemnification claims. “Financial Officer” of any Person means, the chief executive officer, the chief financial officer, the chief accounting officer, the principal accounting officer, the controller, the treasurer or the assistant treasurer of such Person. “Foreign Lender” has the meaning set forth in Section 5.03(d)(i). “GAAP” means generally accepted accounting principles in the United States of America, consistently applied. “Government Approval” means, with respect to a Scooter, all permits, approvals, licenses, and/or requirements of any applicable governmental authority, if any, necessary for the operation of such Scooter. “Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank). “Guarantor Collateral” means “Guarantor Collateral” as defined in the Holdco Guarantee. “Guaranty” means, with respect to any Person, any obligation of such Person guarantying or in effect guarantying any Debt, liability or obligation of any other Person in any manner, whether directly or indirectly, including any such liability arising by virtue of partnership agreements, including any agreement to indemnify or hold harmless any other Person, any performance bond or other suretyship arrangement and any other form of assurance against loss, except endorsement of negotiable or other instruments for deposit or collection in the ordinary course of business. “Historical Financial Statements” means the audited financial statements of Parent for the fiscal year ended December 31, 2019 and the unaudited financial statements for Parent for the fiscal quarters ended March 31, 2020, June 30, 2020, September 30, 2020, and December 31, 2020. “Holdco Guarantee” means the Guarantee and Security Agreement dated as of the date hereof entered into by the Holdco Guarantor. “Holdco Guarantor” has the meaning set forth in the preamble to this Agreement. “Identified Impacted Scooters” has the meaning set forth in Section 8.01(y). “Impacted Scooter” has the meaning set forth in Section 8.01(y). “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Credit Parties under any Transaction Document and (b) to the extent not otherwise described in clause (a) above, Other Taxes. “Ineligible Scooter” means each Scooter that is not an Eligible Scooter.


 
11 US-DOCS\137537506.9 “Insolvency Proceeding” means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors or (b) any general assignment for the benefit of creditors of a Person, composition, marshaling of assets for creditors of a Person, or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors, in each of clauses (a) and (b) undertaken under U.S. Federal, state or foreign law, including the Bankruptcy Code. “Insurance Proceeds” means insurance proceeds from casualty policies. “Intended Tax Treatment” has the meaning set forth in Section 14.14. “Intercreditor Agreement” means the Subordination and Intercreditor Agreement, dated as of the Amendment No. 8 Effective Date, among the several purchasers from time to time party to the Note Purchase Agreement, the Note Collateral Agent, and the Administrative Agent, as the same may be amended, restated, supplemented, or otherwise modified from time to time, in each case as and to the extent permitted by this Agreement and the Intercreditor Agreement. “Interest” means, for any day during any Interest Period (or portion thereof), the amount of interest accrued on the Loans during such Interest Period (or portion thereof) in accordance with Section 2.03(a). “Interest Period” means each calendar month, provided that (i) the Interest Period with respect to the Payment Date in April 2022 shall be the period from the Payment Date in March 2022 to but excluding the Payment Date in April 2022, (ii) the Interest Period with respect to the Payment Date in May 2022 shall be the period from the Payment Date in April 2022 to and including April 30, 2022, and (iii) the last Interest Period shall end on (but exclude) the Final Payout Date. “Interest Rate” means, for any day in any Interest Period, the sum of (a) Adjusted Term SOFR plus (b) the Applicable Margin plus (c) for any day on which an Event of Default has occurred and is continuing, an additional default rate of interest equal to 2.00% per annum; provided, however, that no provision of this Agreement shall require the payment or permit the collection of Interest in excess of the maximum permitted by Applicable Law. “Investment Company Act” means the Investment Company Act of 1940, as amended or otherwise modified from time to time. “IRS” has the meaning set forth in Section 5.03(d)(i). “Lenders” means each Person that is or becomes a party to this Agreement in the capacity of a “Lender”. “Lien” means any lien, mortgage, security interest, tax lien, pledge, encumbrance, or conditional sale or title retention arrangement, or any other interest in property designed to secure the repayment of indebtedness, whether arising by agreement or under common law, any statute or other law, contract, or otherwise. “Loan” means any loan made by a Lender pursuant to Section 2.02. “Loan Commitment” means, at any time of determination prior to the termination of all Commitments hereunder, the aggregate Commitments of all Lenders at such time. 12 US-DOCS\137537506.9 “Loan Commitment Percentage” means, at any time of determination prior to the termination of all Commitments hereunder, with respect to any Lender, a fraction (expressed as a percentage), the numerator of which is its Commitment at such time and the denominator of which is the aggregate Commitments of all Lenders at such time. For the avoidance of doubt, the Loan Commitment Percentage with respect to any Lender to which all or a portion of any funded Loans is assigned but to which no portion of an unfunded Commitment is assigned shall be 0%. “Loan Request” means a letter in substantially the form of Exhibit A hereto executed and delivered by the Borrower to the Administrative Agent and the Lenders pursuant to Section 2.02(a). “LTC Percentage” means, as of any date, a fraction (expressed as a percentage), the numerator of which is the outstanding principal amount of the Loans on such date and the denominator of which is the Total Scooter Cost on such date. “Material Adverse Effect” means relative to any Person (provided that if no particular Person is specified, “Material Adverse Effect” shall be deemed to be relative to each of the Credit Parties and Parent individually) with respect to any event or circumstance, a material adverse effect on any of the following: (a) the assets, operations, business or financial condition of Parent and its Subsidiaries, taken as a whole; (b) the assets, operations, business or financial condition of the Holdco Guarantor and the Borrower (taken as a whole); (c) the ability of any Credit Party to perform its obligations (taken as a whole) under this Agreement, the Scooter Lease, the EMEA Guaranty and Pledge Agreement, the EMEA Dutch Pledge, the Parent Guaranty, or any other Transaction Document to which it is a party; (d) the validity or enforceability of this Agreement, the Scooter Lease, the EMEA Guaranty and Pledge Agreement, the EMEA Dutch Pledge, the Parent Guaranty, or any other Transaction Document; (e) the perfection, enforceability or priority of the Administrative Agent’s security interest in a material portion of the Collateral, Guarantor Collateral, or EMEA Guarantor Collateral; or (f) the rights and remedies of the Administrative Agent or the Lenders under the Transaction Documents taken as a whole or associated with their respective interest in the Collateral and Guarantor Collateral. “Maximum LTC Percentage” means (i) at any time prior to the Amendment No. 2 Initial Funding Date, 85%, (ii) from and after the Amendment No. 2 Initial Funding Date and prior to the first anniversary of the Amendment No. 2 Initial Funding Date, 100%, and (iii) from and after the first anniversary of the Amendment No. 2 Initial Funding Date, 90%. “Model” has the meaning set forth in Section 6.1(n). “Month” means each calendar month.


 
13 US-DOCS\137537506.9 “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which any Bird Transaction Party or any of their respective ERISA Affiliates (other than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code) is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions. “Municipality” means each city, municipality, town, or other locality for which Government Approvals are required to be obtained to operate Scooters. “Note Collateral Agent” has the meaning set forth in the definition of “Note Purchase Agreement”. “Note Documents” mean the Note Purchase Agreement, any Guarantee (as defined in the Note Purchase Agreement), and the other Note Documents (as defined in the Note Purchase Agreement). “Note Purchase Agreement” means the Note Purchase Agreement, dated as of December 30, 2022, by and among Bird Global, as issuer, the purchasers from time to time party thereto, and U.S. Bank National Association, as collateral agent (the “Note Collateral Agent”). “Notes” means the notes issued by Bird Global under the Note Purchase Agreement. “OFAC” means the U.S. Department of Treasury’s Office of Foreign Assets Control. “OFAC Lists” means, collectively, the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) and/or any other list of terrorists or other restricted Persons maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable executive orders. “Other Connection Taxes” means, with respect to any Affected Person, Taxes imposed as a result of a present or former connection between such Affected Person and the jurisdiction imposing such Tax (other than connections arising from such Affected Person having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Transaction Document, or sold or assigned an interest in any Loan or Transaction Document). “Other Taxes” means any and all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes arising from any payment made hereunder or from the execution, delivery, filing, recording or enforcement of, or otherwise in respect of, this Agreement, the other Transaction Documents and the other documents or agreements to be delivered hereunder or thereunder, except for any such Taxes that are Other Connection Taxes imposed with respect to an assignment. “Parent” has the meaning set forth in in the Preliminary Statements; provided, that, upon consummation of any transaction that constitutes a Qualifying IPO pursuant to clause (b) of the definition thereof, “Parent” shall mean any successor entity by merger or combination as a result of such Qualifying IPO. “Parent Guaranty” means that certain Parent Guaranty, dated as of the Amendment No. 6 Signing Date, by and between Parent and the Administrative Agent. “Parent Representation Letter” means the Parent Representation Letter dated as of April 27, 2021, made by Parent for the benefit of the Secured Parties under this Agreement. 14 US-DOCS\137537506.9 “Participant” has the meaning set forth in Section 14.03(d). “Participant Register” has the meaning set forth in Section 14.03(e). “PATRIOT Act” has the meaning set forth in Section 14.15. “Payment Date” means (a) prior to and including the Payment Date in October 2021 and so long as no Event of Default is continuing, the fourth Business Day of each calendar month, (b) prior to the Final Maturity Date and so long as no Event of Default is continuing, the tenth day of each calendar month beginning with the Payment Date in November 2021, or if such day is not a Business Day, the first following day that is a Business Day, (c) the Final Maturity Date, and (d) on and after the Final Maturity Date or if an Event of Default is continuing, each day selected from time to time by the Administrative Agent (with the consent or at the direction of the Lenders) (it being understood that the Administrative Agent (with the consent or at the direction of the Lenders) may select such Payment Date to occur as frequently as daily), or, in the absence of such selection, the tenth day of each calendar month, or if such day is not a Business Day, the first following day that is a Business Day. “Payment Date Certificate” means a certificate in the form of Exhibit B hereto. “PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto. “Pension Plan” means a pension plan as defined in Section 3(2) of ERISA that is subject to Title IV of ERISA (other than a Multiemployer Plan) that is maintained or contributed to by a Bird Transaction Party or any of their respective ERISA Affiliates or with respect to which any Bird Transaction Party may have any liability, contingent or otherwise. “Permitted Holders” means (i) each of the Persons owning Voting Stock of the Parent on the Closing Date, (ii) each of the Persons owning Voting Stock of Bird Canada Inc. on the Amendment No. 7 Effective Date, and (iii) those individuals acting from time to time as officers, directors, managers, employees or members, or in any similar capacity, for any entity referred to in clause (i) above, together with, in the case of clause (iii), any entities owned or controlled by any such individuals, independently or together with one or more entities referred to above. “Permitted Liens” means: (a) Liens for Taxes (i) not yet delinquent, (ii) which are being contested in good faith by appropriate proceedings timely instituted and diligently conducted and reserves required by GAAP have been made, or (iii) not in excess of $100,000 individually or $500,000 in the aggregate, in each case at any time; (b) Liens in favor of banking institutions arising as a matter of law or under general terms and conditions encumbering deposits (including the right of set off) and which are within the general parameters customary in the banking industry; (c) statutory Liens in favor of carriers, warehousemen, mechanics, repairmen and other similar Liens imposed by law, in each case incurred in the ordinary course of business; (d) Liens in favor of the Administrative Agent (for the benefit of the Secured Parties) and any other Liens granted pursuant to the Transaction Documents; and


 
15 US-DOCS\137537506.9 (e) Liens in favor of the Note Collateral Agent (for the benefit of the Secured Parties as defined in the Note Purchase Agreement), which Liens shall be subject to the Intercreditor Agreement. “Person” means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture, limited liability company or other entity, or any Governmental Authority. “Potential Event of Default” means an event that but for notice or lapse of time or both would constitute an Event of Default. “Priority of Payments” has the meaning given to it in Section 4.01. “Projections” shall mean the Model and any forward-looking statements (including statements with respect to booked business) of the Bird Parties and their Subsidiaries furnished to the Lenders or the Administrative Agent by or on behalf of the Bird Parties. “Qualifying IPO” means (a) the issuance by Parent or any direct or indirect parent entity of Parent, or of any Permitted Holder, of the common equity interests of Parent or any direct or indirect parent entity of Parent in an underwritten public offering (other than a public offering pursuant to a registration statement on Form S-8 (or equivalent forms applicable for foreign public companies or foreign private issuers) or any successor form) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act (whether alone or in connection with a secondary public offering), (b) any transaction or series of related transactions following consummation of which Parent or any direct or indirect parent entity of Parent is either subject to the periodic reporting obligations of the Exchange Act or has a class or series of Equity Interests publicly traded on a United States national securities exchange, or (c) the acquisition, purchase, merger or combination of Parent (or any parent entity or subsidiary thereof), by or with, a publicly traded special acquisition company or targeted acquisition company or any entity similar to the foregoing (or any subsidiary thereof) that results in the Equity Interests of Parent (or any parent entity or subsidiary thereof), or its successor by merger or combination, being traded on, or Parent (or any parent entity or subsidiary thereof) being wholly-owned by another entity whose equity is traded on, a United States national securities exchange. “Quarterly Payment Date” means the Payment Date occurring in the months of January, April, July, and October, commencing in July 2021. “Quarterly Period” means the three calendar-month periods ending in March, June, September, and December; provided, that the first Quarterly Period occurring after the Closing Date shall be the period commencing on and including the Closing Date and ending on June 30, 2021. “Register” has the meaning set forth in Section 14.03(b). “Reportable Event” means any reportable event as defined in Section 4043(c) of ERISA or the regulations issued thereunder with respect to a Pension Plan (other than a Pension Plan maintained by an ERISA Affiliate which is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code). “Representatives” has the meaning set forth in Section 14.06(c). “Responsible Officer” of any Person means, any Financial Officer, the chief operating officer, general counsel or other similar officer of such Person. 16 US-DOCS\137537506.9 “Restricted Payments” has the meaning set forth in Section 8.01(m). “Rider Incentive / Contra Pay” means any and all refunds, transaction disputes, rider coupons, rider credits, and failed payments relating to the amount payable by a rider in connection with the use of a Scooter. “Sanctioned Country” means a country subject to a sanctions program maintained under any Anti-Terrorism Law, including any such country identified on the list maintained by OFAC and available at: http://www.treasury.gov/resource-center/sanctions/Programs/ Pages/Programs.aspx, or as otherwise published from time to time. “Sanctioned Person” means (a) a person named on the list of “Specially Designated Nationals” or “Blocked Persons” maintained by OFAC available at: http://www.treasury.gov/ resource-center/sanctions/SDN-List/Pages/default.aspx, or as otherwise published from time to time, (b) (i) an agency of the government of a Sanctioned Country, (ii) an organization controlled by a Sanctioned Country or (iii) a person resident in a Sanctioned Country, to the extent subject to a sanctions program administered by OFAC, or (c) any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person, group, regime, entity or thing, or subject to any limitations or prohibitions (including but not limited to the blocking of property or rejection of transactions), under any Anti-Terrorism Law. “Scooter” has the meaning set forth in the Preliminary Statements. “Scooter IP” has the meaning set forth in the Scooter Lease. “Scooter Lease” means the Master Scooter Operating Lease and Servicing Agreement dated as of April 27, 2021 among the Borrower as Lessor and Parent as Lessee and Servicer, as amended by (i) that certain Amendment No. 1 to Master Scooter Lease, dated as of October 12, 2021, (ii) that certain Amendment No. 2 to Master Scooter Lease, dated as of April 8, 2022, (iii) that certain Amendment No. 3 to Master Scooter Lease, dated as of October 7, 2022, and (iv) that certain Amendment No. 4 to Master Scooter lease, dated as of the Amendment No. 8 Effective Date. “Secured Parties” means each Lender, each Borrower Indemnified Party and each Affected Person. “Securities Act” means the Securities Act of 1933, as amended or otherwise modified from time to time. “SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator. “SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate). “Solvent” means, with respect to any Person and as of any particular date, (a) the present fair market value of the assets of such Person is not less than the total liabilities of such Person, (b) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business, (c) such Person is not incurring debts or liabilities beyond its ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in any business or transaction, and is not about to engage in any business or


 
17 US-DOCS\137537506.9 transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged. “SPAC Transaction” means a merger or business combination pursuant to the Business Combination Agreement (including, for purposes of this definition, any amendment to the Business Combination Agreement after the Second Amendment Effective Date). “Subsidiary” means, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock of each class or other interests having ordinary voting power (other than stock or other interests having such power only by reason of the happening of a contingency) to elect a majority of the Board of Directors or other managers of such entity are at the time owned, or management of which is otherwise controlled: (a) by such Person, (b) by one or more Subsidiaries of such Person or (c) by such Person and one or more Subsidiaries of such Person. “Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, charges, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority and all interest, penalties, additions to tax and any similar liabilities with respect thereto. “Term SOFR” means for each Interest Period, the Term SOFR Reference Rate determined by the Administrative Agent in accordance with its customary procedures, and utilizing such electronic or other quotation sources as it considers appropriate (rounded upwards, if necessary, to the next 1/100%), for a tenor comparable to such Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator, which determination shall be conclusive in the absence of manifest error; provided, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for such tenor has not been published by the Term SOFR Administrator and the Term SOFR Reference Rate has not been replaced as a benchmark rate pursuant to the terms hereof, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than five (5) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day; provided, however, that if (a) the Term SOFR Administrator has made a public announcement identifying a date certain on or after which such rate shall no longer be provided or published, as the case may be; (b) timely, adequate and reasonable means do not exist for ascertaining such rate and the circumstances giving rise to the Administrative Agent’s inability to ascertain Term SOFR are unlikely to be temporary, as determined in the Administrative Agent’s reasonable discretion; or (c) the Administrative Agent determines that use of Term SOFR is no longer appropriate for the purpose of calculating interest under this Agreement and the other Transaction Documents, then the Administrative Agent may, upon prior written notice to the Borrower, choose a reasonably comparable index or source together with corresponding adjustments to any scale factor, spread adjustment and/or floor to such index that the Administrative Agent, in its reasonable discretion, has determined is necessary to preserve the current all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees, but without regard to future fluctuations of such alternative index, it being acknowledged and agreed that neither the Administrative Agent nor any Lender shall have any liability whatsoever from such future fluctuations) to use as the basis for Adjusted Term SOFR, such index or source and adjustments to be consistent with the index or source and adjustments being used by the Administrative Agent on similar transactions with lender finance counterparties; provided, further, that if the replacement index or source as so determined would be less than one percent (1%), the replacement index or source will be deemed to be one percent (1%) for the purposes of this Agreement. 18 US-DOCS\137537506.9 “Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion). “Term SOFR Reference Rate” means the forward-looking term rate based on SOFR. “Term SOFR Replacement Conforming Changes” means, with respect to any replacement of Term SOFR as contemplated in the definition thereof, any technical administrative or operational changes (including, without limitation, changes to the definition of “Base Rate, “Term SOFR”, “Adjusted Term SOFR”, “Interest Rate”, the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such replacement index or source and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of the replacement index or source exists, in such other manner of administration as the Administrative Agent decides is reasonable necessary in connection with the administration of this Agreement). “Total Scooter Cost” means, in respect of any date, an amount equal to the number of Eligible Scooters on such date multiplied by the Cost of each Eligible Scooter. “Transaction Documents” means this Agreement, the Contribution Agreements, the Account Control Agreements, the Scooter Lease, the Fee Letters, the Holdco Guarantee, the Parent Representation Letter, the EMEA Guaranty and Pledge Agreement, the EMEA Dutch Pledge, the Parent Guaranty, the Intercreditor Agreement, and all other agreements executed and delivered under or in connection with this Agreement, in each case as the same may be amended, supplemented or otherwise modified from time to time in accordance with this Agreement. For the avoidance of doubt, the Transaction Documents shall not include the Investment Agreement dated on or about the Amendment No. 7 Effective Date among Bird Global, Inc., Travis Vanderzanden, and Bird Canada Inc. “U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities. “U.S. Tax Compliance Certificate” has the meaning set forth in Section 5.03(d)(1)(C). “UCC” means the Uniform Commercial Code as from time to time in effect in the applicable jurisdiction. “Volcker Rule” means Section 13 of the U.S. Bank Holding Company Act of 1956, as amended, and the applicable rules and regulations thereunder. “Voting Stock” shall mean, with respect to any person, such person’s Equity Interests having the right to vote for the election of directors of such person under ordinary circumstances. “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.


 
19 US-DOCS\137537506.9 SECTION 1.02. Other Interpretative Matters. All terms used in Article 9 of the UCC in the State of New York and not specifically defined herein, are used herein as defined in such Article 9. For purposes of this Agreement, the other Transaction Documents and all such certificates and other documents, unless the context otherwise requires: (a) references to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (b) the words “hereof,” “herein” and “hereunder” and words of similar import refer to such agreement (or the certificate or other document in which they are used) as a whole and not to any particular provision of such agreement (or such certificate or document); (c) unless otherwise expressly indicated, all references to any Article, Section, Schedule, Exhibit, or Annex are references to Articles, Sections, Schedules, Exhibits, and Annexes in or to such agreement (or the certificate or other document in which the reference is made), and references to any paragraph, subsection, clause, or other subdivision within any Section or definition refer to such paragraph, subsection, clause, or other subdivision of such Section or definition; (d) the term “including” means “including without limitation”; (e) references to any Applicable Law refer to that Applicable Law as amended from time to time and include any successor Applicable Law; (f) references to any agreement refer to that agreement as from time to time amended, restated or supplemented or as the terms of such agreement are waived or modified in accordance with its terms; (g) references to any Person include that Person’s permitted successors and assigns; (h) headings are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof; (i) unless otherwise provided, in the calculation of time from a specified date to a later specified date, the term “from” means “from and including”, and the terms “to” and “until” each means “to but excluding”; (j) terms in one gender include the parallel terms in the neuter and opposite gender; and (k) the term “or” is not exclusive. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided, that if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. 20 US-DOCS\137537506.9 ARTICLE II TERMS OF THE LOANS SECTION 2.01. LoansUpon a request by the Borrower pursuant to Section 2.02, and on the terms and subject to the conditions hereinafter set forth, each applicable Lender shall, ratably in accordance with its respective Loan Commitment Percentage, severally and not jointly, make Loans to the Borrower from time to time during the period from the Effective Date to the Commitment Termination Date. Under no circumstances shall any Lender be obligated to make any such Loan if, after giving effect to such Loan, the aggregate principal amount of all Loans extended pursuant to this Article II exceeds the Loan Commitment or such Lender’s share of such Loan exceeds such Lender’s Commitment as of such date. To the fullest extent consistent with applicable laws and regulations, all Loans made under this Section 2.01(a) shall constitute a single tranche and be fungible with each other. The Borrower shall not have any right to reborrow any portion of the Loan that is repaid or prepaid from time to time. As of the Amendment No. 2 Effective Date, the outstanding principal amount of U.S. Loans was $11,259,996.09 and, subject to the terms herein, the amount of available Commitments to be borrowed hereunder was $138,740,003.91. As of the Amendment No. 3 Effective Date, the outstanding principal amount of U.S. Loans was $68,607,386.08. (b) As of the Amendment No. 6 Effective Date, subject to the terms herein, the amount of available Commitments to be borrowed hereunder was $5,000,000.00. As of the Amendment No. 6 Signing Date, the outstanding principal amount of U.S. Loans was $73,520,271.04. As of the Amendment No. 7 Effective Date, the outstanding principal amount of Loans was $45,605,322.28. As of the Amendment No. 8 Effective Date (before giving effect to any prepayment on the Amendment No. 8 Effective Date), the outstanding principal amount of the Loan is $45,105,322.40. SECTION 2.02. Making of Loans; Repayment of Loans. (a) On the terms and subject to the conditions hereinafter set forth, each Loan hereunder shall be made on a Business Day upon the Borrower’s prior written request to the Administrative Agent (who shall promptly provide to each Lender) in the form of a Loan Request attached hereto as Exhibit A. Each such request for a Loan shall be made no later than 2:00 p.m. (New York City time) on the date that is two (2) Business Days prior to the date such requested Loan is to be made (it being understood that any such request made after such time shall be deemed to have been made on the following Business Day) and shall specify the amount of the Loan(s) requested (which shall be in an amount not less than $2,000,000 and shall be an integral multiple of $100,000 in excess thereof, or shall be in such lower amount as requested by the Borrower and agreed to by the Administrative Agent in its sole discretion). On the date of each Loan specified in the applicable Loan Request, the Lenders shall, upon satisfaction of the applicable conditions set forth in Article VI and pursuant to the other conditions set forth in this Article II, make available to the Borrower in same day funds an aggregate amount equal to the amount of such Loans requested. All Loan proceeds shall be deposited to the Collection Account and may be distributed by the Borrower to the Holdco Guarantor and by the Holdco Guarantor to the Parent (A) to pay the purchase price (including any deposit towards such purchase price) of the Scooters (or reimburse the Parent for the same) identified in the related Loan Request to be purchased with the proceeds of such Loan(s) pursuant to the Contribution Agreements and/or (B) for working capital and general corporate purposes of Parent or any of its Subsidiaries. (b) Each Lender’s obligation shall be several, such that the failure of any Lender to make available to the Borrower any funds in connection with any Loan shall not relieve any other Lender of its obligation, if any, hereunder to make funds available on the date such Loans are requested (it being


 
21 US-DOCS\137537506.9 understood that no Lender shall be responsible for the failure of any other Lender to make funds available to the Borrower in connection with any Loan hereunder). (c) The outstanding principal amount of all Loans shall become immediately due and payable in full on the Final Maturity Date. Prior thereto principal of the Loans shall be due on each Payment Date in an amount equal to the Amortization Amount for such Payment Date (applied in accordance with the Priority of Payments). The Borrower may also repay the Loans in accordance with the terms of Section 2.02(e). (d) [Reserved]. (e) The Borrower may from time to time, with at least two (2) Business Days prior delivery to the Administrative Agent of an appropriately completed Payment Notification in the form attached hereto as Exhibit D, prepay the Loans in whole or in part, without premium or penalty; provided, however, that each such prepayment shall be in an amount equal to $100,000 or a higher integral multiple of $25,000 and shall be accompanied by any accrued and unpaid Interest on the amount prepaid and any applicable Fees. Principal payments shall continue in accordance with the Priority of Payments, notwithstanding any partial prepayment of the Loans. The Administrative Agent shall distribute to the Lenders (ratably, based on the amount then due and owing) any amounts received in respect of an optional prepayment in accordance with this Section 2.02(e). SECTION 2.03. Interest and Fees. (a) The Loans shall accrue Interest on each day at the then applicable Interest Rate. The Borrower shall pay all Interest accrued during each Interest Period on the immediately following Payment Date. Interest shall be paid in accordance with the Priority of Payments. (b) The Borrower shall pay to each Lender and the Administrative Agent certain fees (collectively, the “Fees”) in the amounts set forth in the fee letter agreements among the Borrower, the Lenders, and the Administrative Agent (each as amended, restated, supplemented or otherwise modified from time to time, a “Fee Letter”). SECTION 2.04. Records of Loans. Each Lender shall record in its records the date and amount of the Loans made by such Lender hereunder, the Interest Rate with respect thereto, the Interest accrued thereon, and each repayment and payment thereof. Subject to Section 14.03(b), such records shall be prima facie evidence of the existence and amount of the obligations recorded therein. The failure to so record any such information or any error in so recording any such information shall not, however, limit or otherwise affect the obligations of the Borrower hereunder or under the other Transaction Documents to repay to each Lender the Loans, together with all Interest accruing thereon, and all other Borrower Obligations. ARTICLE III ACCOUNTS AND COLLECTIONS SECTION 3.01. Collection Account. The Borrower shall establish and maintain the Collection Account. The Borrower shall maintain therein Collections and any other amounts required to be paid thereto pursuant to the Transaction Documents. Amounts on deposit in the Collection Account shall be applied on each Payment Date in accordance with the Priority of Payments. The Borrower shall not otherwise be permitted to withdraw amounts from the Collection Account; provided, that the Borrower may withdraw amounts from the Collection Account as follows: (i) the Borrower may distribute any Loan 22 US-DOCS\137537506.9 proceeds (or portion thereof) to the Holdco Guarantor and the Holdco Guarantor may distribute the same to the Parent, (ii) the Borrower may distribute the amounts described in clause (vi) of the definition of “Priority of Payments” to the Holdco Guarantor and the Holdco Guarantor may distribute the same to the Parent, and (iii) in lieu of any such distribution described in the foregoing clause (ii), the Borrower may use all or a portion of the amount described in clause (vi) of the definition of “Priority of Payments” to make an optional prepayment of the Loans on the applicable Payment Date in accordance with Section 2.02(e) (such prepayment to be made after the application of the Priority of Payments on such Payment Date). SECTION 3.02. [Reserved]. SECTION 3.03. Collections. The Borrower shall deposit all Collections into the Collection Account. ARTICLE IV SETTLEMENT PROCEDURES AND PAYMENT PROVISIONS SECTION 4.01. Priority of Payments. (a) On each Payment Date, the Borrower shall direct the Account Bank to distribute all amounts on deposit in the Collection Account on such Payment Date in the following order of priority (the “Priority of Payments”), in accordance with the Payment Date Certificate for such Payment Date: (i) first, to the Administrative Agent, Lenders, Borrower Indemnified Parties, and Affected Persons on a pro rata basis, all accrued and unpaid expenses, costs, or indemnification amounts; (ii) second, to the Administrative Agent, the Administrative Agent Fee, to the extent due and unpaid; (iii) third, to the Administrative Agent for distribution to the Lenders (ratably, based on the amount then due and owing), all accrued and unpaid Interest due to each such Lender for the immediately preceding Interest Period, plus, if applicable, the amount of any such Interest payable for any prior Interest Period to the extent such amount has not been distributed to each such Lender, and any interest accrued pursuant to Section 4.02(b), to the extent unpaid; (iv) fourth, to the Administrative Agent for distribution to the Lenders (ratably, based on the amount then due and owing) (A) on the Final Maturity Date or if an Event of Default is continuing on such Payment Date, the outstanding principal amount of the Loans, or (B) prior to the Final Maturity Date and if an Event of Default is not continuing on such Payment Date, the Amortization Amount for such Payment Date; (v) [reserved]; and (vi) sixth, the balance, if any, to be paid at the direction of the Borrower. (b) Notwithstanding anything to the contrary set forth in this Section 4.01, the Administrative Agent shall have no obligation to distribute or pay any amount under this Section 4.01


 
23 US-DOCS\137537506.9 except to the extent actually received by the Administrative Agent or available to the Administrative Agent from funds on deposit in the Collection Account. All payments or distributions to be made by any Credit Party and any other Person to the Administrative Agent or the Lenders (or their respective related Affected Persons and the Borrower Indemnified Parties), shall be paid or distributed to the applicable party to which such amounts are owed. (c) If and to the extent the Administrative Agent, any Lender, any Affected Person or any Borrower Indemnified Party shall be required for any reason to pay over to any Person (including any Credit Party or any trustee, receiver, custodian or similar official in any Insolvency Proceeding) any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Borrower and, accordingly, the Administrative Agent, such Lender, such Affected Person or such Borrower Indemnified Party, as the case may be, shall have a claim against the Borrower for such amount. SECTION 4.02. Payments and Computations, Etc. (a) All amounts payable to the Administrative Agent, any Lender, any Affected Person or any Borrower Indemnified Party hereunder shall be paid no later than 2:00 p.m. (New York City time) on the day when due in same day funds to the applicable party to which such amounts are due. (b) The Borrower shall, to the extent permitted by Applicable Law, pay interest on any amount not paid or deposited by it when due hereunder, at an interest rate per annum equal to 2.00% per annum above the then applicable Interest Rate, payable in accordance with the Priority of Payments or otherwise on written demand. (c) All computations of interest under subsection (b) above and all computations of Interest, Fees and other amounts hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first but excluding the last day) elapsed. Whenever any payment or deposit to be made hereunder shall be due on a day other than a Business Day, such payment or deposit shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of such payment or deposit. ARTICLE V INCREASED COSTS; FUNDING LOSSES; TAXES; ILLEGALITY; SECURITY INTEREST SECTION 5.01. Increased Costs. (a) Increased Costs Generally. If any Change in Law shall: (i) impose, modify or deem applicable any reserve, special deposit, liquidity, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Affected Person; (ii) subject any Affected Person to any Taxes (except to the extent such Taxes are (A) Indemnified Taxes for which relief is sought under Section 5.03, (B) Taxes described in clause (b) through (d) of the definition of Excluded Taxes or (C) Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes; the Taxes described in this parenthetical, “Covered Taxes”) on its loans, loan principal, letters of credit, 24 US-DOCS\137537506.9 commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (iii) impose on any Affected Person any other condition, cost or expense (other than Taxes) (A) affecting the Collateral, this Agreement, any other Transaction Document, any Loan or any participation therein or (B) affecting its obligations or rights to make Loans; and the result of any of the foregoing shall be to increase the cost to such Affected Person of (A) acting as the Administrative Agent or a Lender hereunder, (B) funding or maintaining any Loan or (C) maintaining its obligation to fund or maintain any Loan, or to reduce the amount of any sum received or receivable by such Affected Person hereunder, then, upon request of such Affected Person, the Borrower shall pay to such Affected Person such additional amount or amounts as will compensate such Affected Person for such additional costs incurred or reduction suffered. (b) Capital Adequacy. If any Lender shall reasonably determine that any Change in Law regarding capital adequacy, or the compliance by any Lender or any Person controlling such Lender with any request, guideline or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency adopted or otherwise taking effect after the Closing Date, has or would have the effect of reducing the rate of return on such Lender’s or such controlling Person’s capital as a consequence of such Lender’s obligations hereunder to a level below that which such Lender or such controlling Person could have achieved but for such Change in Law or compliance (taking into consideration such Lender’s or such controlling Person’s policies with respect to capital adequacy) then from time to time, upon demand by such Lender (which demand shall be accompanied by a certificate setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to the Administrative Agent), the Borrower shall promptly pay to such Lender such additional amount as will compensate such Lender or such controlling Person for such reduction, so long as such amounts have accrued on or after the day which is two hundred seventy (270) days prior to the date on which such Lender first made demand therefor. (c) [Reserved]. (d) Certificates for Reimbursement. A certificate of an Affected Person setting forth the amount or amounts necessary to compensate such Affected Person or its holding company, as the case may be, as specified in clause (a), (b) or (c) of this Section and delivered to the Borrower, shall be conclusive absent manifest error. The Borrower shall, subject to the priorities of payment set forth in Section 4.01, pay such Affected Person the amount shown as due on any such certificate on the first Payment Date occurring after the Borrower’s receipt of such certificate; provided, that any such certificate shall state the basis upon which such amount has been calculated and certify that such Affected Person’s method of allocation is not inconsistent with its method of allocation used for other trade receivable securitization facilities or debt facilities which are subject to similar provisions for which reimbursement is being sought. (e) Delay in Requests. Failure or delay on the part of any Affected Person to demand compensation pursuant to this Section shall not constitute a waiver of such Affected Person’s right to demand such compensation; provided, that the Borrower shall not be required to compensate a Lender pursuant to this Section 5.01 for any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided,


 
25 US-DOCS\137537506.9 further, that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof. SECTION 5.02. Adjusted Term SOFR. (a) Adjusted Term SOFR may be adjusted by the Administrative Agent with respect to any Lender on a prospective basis to take into account any additional or increased costs to such Lender due to any Change in Law occurring subsequent to the commencement of the then applicable Interest Period, including changes in tax laws (except changes of general applicability in corporate income tax laws or changes in law with respect to Covered Taxes) and changes in the reserve requirements imposed by the Board of Governors of the Federal Reserve System (or any successor), which additional or increased costs would increase the cost of funding loans bearing interest based upon Adjusted Term SOFR. In any such event, the affected Lender shall give the Borrower and the Administrative Agent notice of such a determination and adjustment and the Administrative Agent promptly shall transmit the notice to each other Lender and, upon its receipt of the notice from the affected Lender, the Borrower may, by notice to such affected Lender (I) require such Lender to furnish to the Borrower a statement setting forth the basis for adjusting Adjusted Term SOFR and the method for determining the amount of such adjustment, or (II) repay the Loans bearing interest based upon the Adjusted Term SOFR with respect to which such adjustment is made. (b) In the event that any change in market conditions or any law, regulation, treaty, or directive, or any change therein or in the interpretation of application thereof, shall at any time after the date hereof, in the reasonable opinion of any Lender, make it unlawful or impractical for such Lender to maintain Loans bearing interest based upon Adjusted Term SOFR or to continue such maintaining, or to determine or charge interest rates at Adjusted Term SOFR, such Lender shall give notice of such changed circumstances to the Administrative Agent and the Borrower and the Administrative Agent promptly shall transmit the notice to each other Lender, (i) in the case of the pro rata share of the Loans held by such Lender and then outstanding, the date specified in such Lender’s notice shall be deemed to be the last day of the Interest Period of such portion of the Loans, and interest upon such portion thereafter shall accrue interest at the Base Rate plus the Applicable Margin, and (ii) such portion of the Loans shall continue to accrue interest at the Base Rate plus the Applicable Margin until such Lender determines that it would no longer be unlawful or impractical to maintain such Loans at Adjusted Term SOFR. (c) Anything to the contrary contained herein notwithstanding, neither the Administrative Agent nor any Lender is required actually to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest accrues based on Adjusted Term SOFR. (d) In connection with any replacement of Term SOFR as contemplated in the definition thereof, the Administrative Agent will have the right to make Term SOFR Replacement Conforming Changes and amendments implementing such Term SOFR Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement. The Administrative Agent will promptly notify the Credit Parties and the Lenders of (i) replacement of Term SOFR as contemplated in the definition thereof and (ii) the effectiveness of any Term SOFR Replacement Conforming Changes. Any determination, decision or election that may be made by the Administrative Agent in connection with any replacement of Term SOFR, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 5.02. Notwithstanding the foregoing, the Administrative Agent will cooperate with the Borrower to effectuate any modification to this Agreement or the credit extensions made connection therewith (as contemplated 26 US-DOCS\137537506.9 by this Section 5.02) in a manner that does not result in a deemed exchange of such credit extensions under Section 1001 of the Code. SECTION 5.03. Taxes. (a) Payments Free of Taxes. All payments of principal and interest on the Loans and all other amounts payable hereunder shall be made free and clear of and without deduction for Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by the applicable withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and if any such withholding or deduction is in respect of any Indemnified Taxes, then the Borrower shall pay such additional amount or amounts as is necessary to ensure that the net amount actually received by the Administrative Agent (for amounts received for its own account) and each Lender will equal the full amount the Administrative Agent and such Lender would have received had no such withholding or deduction of Indemnified Taxes been required (including, without limitation, such withholdings and deductions applicable to additional sums payable under this Section 5.03). After payment of any Tax by the Borrower to a Governmental Authority pursuant to this Section 5.03, the Borrower shall promptly forward to the Administrative Agent the original or a certified copy of an official receipt, a copy of the return reporting such payment, or other documentation satisfactory to the Administrative Agent evidencing such payment to such authority. (b) Payment of Other Taxes by the Borrower. The Borrower shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or, at the option of the Administrative Agent, timely reimburse the Administrative Agent for the payment of, any Other Taxes. (c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative Agent and the Lenders, within ten (10) days after demand thereof, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 5.03) payable or paid by the Administrative Agent or any Lender or required to be withheld or deducted from a payment to the Administrative Agent or any Lender and any expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes and Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate in reasonable detail as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. (d) Status of Lenders. Any Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments made under any Transaction Document shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 5.03(d)(i), 5.03(d)(ii) and 5.03(f) below) shall not be required if in such Lender’s reasonable judgment such


 
27 US-DOCS\137537506.9 completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. (i) Each Lender that is not a "United States person" (as such term is defined in Section 7701(a)(30) of the Code) for U.S. federal income tax purposes and is a party hereto on the Closing Date or purports to become an assignee of an interest pursuant to Section 14.03 after the Closing Date (unless such Lender was already a Lender hereunder immediately prior to such assignment) (each such Lender a “Foreign Lender”) shall, to the extent permitted by Applicable Law, execute and deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent) whichever of the following is applicable: (A) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party, (x) with respect to payments of interest under any Transaction Document, two (2) properly completed and executed originals of United States Internal Revenue Service (“IRS”) Forms W-8BEN or W-8BEN-E (or successor form) establishing an exemption from, or reduction of, U.S. federal withholding tax pursuant to the "interest" article of such tax treaty and (y) with respect to any other applicable payments under any Transaction Documents, two (2) properly completed and executed originals of IRS Forms W-8BEN or W-8BEN-E (or successor form) establishing an exemption from, or reduction of, U.S. federal withholding tax pursuant to the "business profits" or "other income" article of such tax treaty; (B) two (2) executed originals of Form W-8ECI (or successor form); (C) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, a "10 percent shareholder" of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a "controlled foreign corporation" described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) two (2) executed originals of IRS Forms W-8BEN or W-8BEN-E (or successor form); (D) to the extent a Foreign Lender is not the beneficial owner, two (2) executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E (or successor form), a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9 (or successor form), and/or other certification documents from each beneficial owner, as applicable; provided, that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of each such direct and indirect partner; or (E) other applicable forms, certificates or documents prescribed by the IRS. Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so. In addition, to the extent permitted by Applicable Law, such forms shall be delivered by each Foreign Lender upon the obsolescence or invalidity of any form previously delivered by such Foreign Lender. Each Foreign Lender shall promptly notify the Borrower at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower (or any other form of certification adopted by the U.S. taxing authorities for such purpose). 28 US-DOCS\137537506.9 (ii) Each Lender that is a "United States person" (as such term is defined in Section 7701(a)(30) of the Code) for U.S. federal income tax purposes and is a party hereto on the Closing Date or purports to become an assignee of an interest pursuant to Section 14.03 after the Closing Date (unless such Lender was already a Lender hereunder immediately prior to such assignment) shall provide to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), a properly completed and executed IRS Form W- 9 or any successor form certifying as to such Lender's entitlement to an exemption from U.S. backup withholding and, to the extent permitted by Applicable Law, other applicable forms, certificates or documents prescribed by the IRS or reasonably requested by the Borrower or Administrative Agent. Each such Lender shall promptly notify the Borrower at any time it determines that any certificate previously delivered to the Borrower (or any other form of certification adopted by the U.S. governmental authorities for such purposes) is no longer valid. (iii) Any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. Federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or Administrative Agent to determine the withholding or deduction required to be made. (iv) The Administrative Agent shall deliver to the Borrower , on or prior to the date on which it becomes a party to this Agreement, a duly completed IRS Form W-8, with the effect that the Borrower may make payments to the Administrative Agent, to the extent such payments are received by the Administrative Agent as an intermediary, without deduction or withholding of any Taxes imposed by the United States (and the Administrative Agent will serve as a U.S. withholding agent (and complete associated reporting responsibilities) with respect to Chapter 3 and Chapter 4 withholding on amounts paid to the Administrative Agent in respect of the Loans (or any other amounts payable hereunder). (e) Treatment of Certain Refunds. If any Lender determines, in its sole discretion exercised in good faith, that it has received a refund in respect of any Taxes as to which it has been indemnified by the Borrower pursuant to this Section 5.3 (including by the payment of additional amounts pursuant to this Section 5.3), then it shall promptly pay an amount equal to such refund to the Borrower, net of all reasonable out-of-pocket expenses of such Lender or of the Administrative Agent with respect thereto, including any Taxes; provided, however, that the Borrower, upon the written request of such Lender or the Administrative Agent, agrees to repay any amount paid over to the Borrower to such Lender or to the Administrative Agent (plus any related penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such Lender or the Administrative Agent is required, for any reason, to disgorge or otherwise repay such refund. Notwithstanding anything to the contrary in this Section 5.3, in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 5.3(e) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise


 
29 US-DOCS\137537506.9 imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 5.3 shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person. (f) Documentation Required by FATCA. If a payment made to a Lender under any Transaction Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by Applicable Law and at such time or times reasonably requested by the Borrower or Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (f), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. (g) Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 14.03(e) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Transaction Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Transaction Document or otherwise payable by the Administrative Agent to such Lender from any other source against any amount due to the Administrative Agent under this paragraph (g). (h) Survival. Each party’s obligations under Section 5.03(a) through (g) shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, and the repayment, satisfaction or discharge of all Borrower Obligations hereunder. ARTICLE VI CONDITIONS TO EFFECTIVENESS AND CREDIT EXTENSIONS SECTION 6.01. Conditions Precedent to Effectiveness of this Agreement. This Agreement shall be effective on the date (the “Effective Date”) on which the conditions precedent are satisfied: (a) Transaction Documents. The Administrative Agent and the Lenders shall have received copies of each of the Transaction Documents executed and delivered by each party thereto. (b) Organizational Documents; Incumbency. The Administrative Agent and the Lenders shall have received (i) true, correct and complete copies of the organizational documents of the Bird Parties; (ii) signature and incumbency certificates of the officers of each of the Bird Parties 30 US-DOCS\137537506.9 executing the Transaction Documents to which it is a party; (iii) resolutions of the Board of Directors or similar governing body of each of the Bird Parties approving and authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents to which it is a party or by which it or its assets may be bound as of the Closing Date, certified as of the Closing Date by a Responsible Officer as being in full force and effect without modification or amendment; (iv) a good standing certificate from the applicable Governmental Authority of each of the Bird Parties’ jurisdiction of incorporation, organization or formation dated a recent date prior to the Closing Date; and (v) such other documents as Administrative Agent or the Lenders may reasonably request. (c) Transaction Costs. At least two (2) Business Days prior to the Closing Date, the Borrower shall have delivered to the Lenders the Borrower’s reasonable best estimate of the fees, costs and expenses payable by the Parent or the Borrower on or before the Closing Date in connection with the transactions contemplated by the Transaction Documents. (d) Liens. The Administrative Agent and the Lenders shall have received the results of a recent search, by a Person satisfactory to the Lenders, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of the Bird Parties, together with copies of all such filings disclosed by such search. (e) Financial Statements. The Lenders shall have received the Historical Financial Statements. (f) [Reserved]. (g) Opinions of Counsel to Credit Parties. Lenders and their respective counsel shall have received executed copies of favorable written opinions, dated as of the Closing Date, of Latham & Watkins LLP, counsel to the Bird Parties, covering corporate, enforceability, and security interest matters and such other matters as the Lenders may request, in form and substance satisfactory to the Lenders (and each Bird Party instructs such counsel to deliver such opinions to the Administrative Agent and the Lenders). (h) Fees. The Bird Parties shall have executed and delivered the Fee Letters to the Administrative Agent and the Lenders. (i) Solvency Certificate. The Bird Parties shall have delivered to the Administrative Agent and the Lenders an executed solvency certificate in the form of Exhibit E hereto. (j) Closing Date Certificates. The Bird Parties shall have delivered to Administrative Agent and the Lenders an executed certificate in the form of Exhibit F hereto, together with all attachments thereto. (k) Due Diligence. Other than changes occurring in the ordinary course of business, no information or materials are or should have been available to the Bird Parties as of the Closing Date that are materially inconsistent with the material previously provided to the Lenders for their due diligence review of the Bird Parties and their respective business. (l) No Material Adverse Change. Since December 31, 2020, no event, circumstance or change shall have occurred that has caused or evidences, either in any case or in the aggregate, a Material Adverse Effect.


 
31 US-DOCS\137537506.9 (m) KYC; Beneficial Ownership. The Administrative Agent and the Lenders shall have received from the Bird Parties all documentation and information required under the applicable "know your customer" requirements of the Anti-Terrorism Laws. (n) Model. The Lenders shall have received, at least three (3) Business Days prior to the Closing Date, the financial model for the Loans, which shall be satisfactory to the Lenders in their sole discretion (the “Model”) (it being agreed and acknowledged by the Lenders that the Model delivered to the Lenders on April 16, 2021 is satisfactory). (o) Data Tape. The Lenders shall have received, at least three (3) Business Days prior to the Closing Date, the data tape that includes the applicable information set forth on Exhibit H (the “Data Tape”) with respect to Scooters owned by the Borrower on or prior to the Closing Date, which shall be satisfactory to the Lenders in their sole discretion (it being agreed and acknowledged by the Lenders that the Data Tape delivered to the Lenders on April 23, 2021 is satisfactory). (p) [Reserved]. (q) Funds Flow. The Lenders shall have received at least three (3) Business Days prior to the Closing Date a funds flow memorandum, in form and substance reasonably satisfactory to them. SECTION 6.02. Conditions Precedent to Each Credit Extension. Each Credit Extension hereunder on or after the Amendment No. 6 Effective Date shall be subject to the conditions precedent that: (a) the Borrower shall have delivered to the Administrative Agent a Loan Request for such Loan in accordance with Section 2.02(a); (b) the Borrower (or the Parent on its behalf) shall have delivered to the Administrative Agent all Payment Date Certificates, if any, required to be delivered hereunder on or prior to such date; (c) the conditions precedent to such Credit Extension specified in Section 2.02 shall be satisfied; (d) on the date of such Credit Extension the following statements shall be true and correct (and upon the occurrence of such Credit Extension, the Credit Parties shall be deemed to have represented and warranted that such statements are then true and correct): (i) the representations and warranties of the Credit Parties contained in Section 7.01 are true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of the date of such Credit Extension as though made on and as of such date unless such representations and warranties by their terms refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date; (ii) the Borrower will use the proceeds of the Credit Extension solely in accordance with Section 2.02(a) of this Agreement; 32 US-DOCS\137537506.9 (iii) no Event of Default or Potential Event of Default has occurred and is continuing, and no Event of Default or Potential Event of Default would result from such Credit Extension; (iv) immediately prior to and after giving effect to such Credit Extension (and the substantially concurrent contribution by Parent of Eligible Scooters to Borrower, if any), the LTC Percentage is equal to or less than the Maximum LTC Percentage; (v) the amount of such Credit Extension shall not exceed the product of (x) the Advance Rate on such date multiplied by (y) the aggregate Cost of (1) Eligible Scooters that have been contributed by Parent to Borrower since the Effective Date and which are owned by Borrower as of the date of such Credit Extension and (2) Eligible Scooters contributed by Parent to Borrower substantially concurrently with such Credit Extension, if any; (vi) [reserved]; (vii) the Parent is in compliance with the Minimum Liquidity covenant in Section 8.6 of the Scooter Lease; and (viii) the Scooters referenced in subsection (v) above are, as of the date of such Credit Extension, Eligible Scooters. (e) the Lenders shall have received, at least three (3) Business Days prior to the date of such Credit Extension, the Model updated to include such Credit Extension; (f) the Lenders shall have received, at least three (3) Business Days prior to the date of such Credit Extension, the Data Tape in respect of Scooters contributed or transferred to the Borrower in respect of such Credit Extension (or, if no such Scooters are being contributed or transferred to the Borrower concurrent with such Credit Extension, an updated Data Tape in respect of Scooters that have been contributed by Parent to Borrower since the Effective Date and which are owned by Borrower as of the date of such Credit Extension); (g) with respect to the Amendment No. 3 Effective Date, the Administrative Agent shall have received the original Letter of Credit with a Minimum LC Amount updated as specified in the Scooter Lease; (h) the Lenders shall have received and approved, at least three (3) Business Days prior to the date of any Credit Extension, any updates to Schedule VI hereto or received confirmation from the Borrower that no updates to Schedule VI hereto are required; provided, that solely for the purpose of a Credit Extension on or around April 26, 2022, the Lenders shall have received and approved, at least one (1) Business Day prior to such Credit Extension, an updated Schedule VI; (i) the Borrower owns and has good and marketable title to the Collateral free and clear of any Adverse Claim of any Person other than Liens permitted to exist under this Agreement; and (j) the Commitment Termination Date has not occurred.


 
33 US-DOCS\137537506.9 ARTICLE VII REPRESENTATIONS AND WARRANTIES SECTION 7.01. Representations and Warranties of the Credit Parties. On the Closing Date and on each date on which representations and warranties are required to be made hereunder, the Credit Parties represent and warrant to the Administrative Agent and each Lender: (a) Organization and Good Standing. Each Credit Party is a limited liability company duly organized and validly existing in good standing under the laws of the State of Delaware and has full power and authority under its constitutional documents and under the laws of its jurisdiction to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted. (b) Due Qualification. Each Credit Party is duly qualified to do business as a limited liability company and has obtained all necessary licenses and approvals in all jurisdictions in which the conduct of its business requires such qualification, licenses or approvals, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect. (c) Power and Authority; Due Authorization. Each Credit Party (i) has all necessary limited liability company power and authority to (A) execute and deliver this Agreement and the other Transaction Documents to which it is a party, (B) perform its obligations under this Agreement and the other Transaction Documents to which it is a party and (C) grant a security interest in the Collateral or the Guarantor Collateral, as the case may be, to the Administrative Agent on the terms and subject to the conditions herein provided, or in the case of Holdco Guarantor, the Holdco Guarantee, and (ii) has duly authorized by all necessary limited liability company action such grant and the execution, delivery and performance of, and the consummation of the transactions provided for in, this Agreement and the other Transaction Documents to which it is a party. (d) Binding Obligations. This Agreement and each of the other Transaction Documents to which each Credit Party is a party, when executed and delivered by such Credit Party and each other party thereto, will constitute legal, valid and binding obligations of such Credit Party, enforceable against such Credit Party in accordance with their respective terms, except (i) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (ii) as such enforceability may be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law. (e) No Conflict or Violation. The execution, delivery and performance of, and the consummation of the transactions contemplated by, this Agreement and the other Transaction Documents to which each Credit Party is a party, and the fulfillment of the terms hereof and thereof, will not (i) conflict with, result in any breach of any of the terms or provisions of, or constitute (with or without notice or lapse of time or both) a default under its organizational documents, any Government Approval, or any indenture, sale agreement, credit agreement, loan agreement, security agreement, mortgage, deed of trust, or other agreement or instrument to which such Credit Party is a party or by which it or any of its properties is bound, (ii) result in the creation or imposition of any Adverse Claim upon any of the Collateral pursuant to the terms of any such indenture, credit agreement, loan agreement, security agreement, mortgage, deed of trust, or other agreement or instrument other than this Agreement and the other Transaction Documents or (iii) conflict with or violate any Applicable Law, except in the case of each of the foregoing clauses (i) through (iii) to the extent that any such conflict, breach, default, Adverse Claim or violation, as applicable, could not reasonably be expected to have a Material Adverse Effect. 34 US-DOCS\137537506.9 (f) Litigation and Other Proceedings. (i) There is no action, suit, proceeding or investigation pending or, to the best knowledge of the Credit Parties, threatened in writing, against the Bird Transaction Parties before any Governmental Authority and (ii) none of the Bird Transaction Parties is subject to any order, judgment, decree, injunction, stipulation or consent order of or with any Governmental Authority that, in the case of either of the foregoing clauses (i) and (ii), (A) asserts the invalidity or unenforceability of this Agreement or any other Transaction Document, (B) seeks to prevent the grant of a security interest in any of the Collateral by the Borrower to the Administrative Agent, any Guarantor Collateral by the Holdco Guarantor to the Administrative Agent, the ownership or acquisition by the Borrower of any Collateral or of Holdco Guarantor of any Guarantor Collateral, or the consummation of any of the transactions contemplated by this Agreement or any other Transaction Document, (C) seeks any determination or ruling that could materially and adversely affect the performance by any of the Bird Transaction Parties of its obligations under this Agreement or any other Transaction Document or (D) individually or in the aggregate for all such actions, suits, proceedings and investigations could reasonably be expected to have a Material Adverse Effect. (g) Government Approvals. Except where the failure to obtain or make such authorization, consent, order, approval or action could not reasonably be expected to have a Material Adverse Effect, all authorizations, consents, orders and approvals of, or other actions by, any Governmental Authority that are required to be obtained by the Credit Parties in connection with the operation of the Scooters, including, without limitation, any applicable Government Approvals, the grant of a security interest to the Administrative Agent hereunder or under the Holdco Guarantee, as applicable, or the due execution, delivery and performance by the Credit Parties of this Agreement or any other Transaction Document to which they are a party and the consummation by the Credit Parties of the transactions contemplated by this Agreement and the other Transaction Documents to which they are a party have been obtained or made and are in full force and effect. (h) Margin Regulations. The Credit Parties are not engaged, principally or as one of their important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meanings of Regulations T, U and X of the Board of Governors of the Federal Reserve System). No part of the proceeds of the Loans made to any Credit Party will be used to purchase or carry any such margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock or for any purpose that violates, or is inconsistent with, the provisions of Regulation T, U, or X of the Board of Governors of the Federal Reserve System. (i) Solvency. After giving effect to the transactions contemplated by this Agreement and the other Transaction Documents, (A) Parent and its subsidiaries, on a consolidated basis are Solvent, and (B) each of the Bird Transaction Parties is Solvent. (j) Offices; Legal Name. The Borrower’s sole jurisdiction of organization is the State of Delaware and such jurisdiction has not changed within four months prior to the date of this Agreement. The chief executive office of the Borrower is set forth on Schedule V hereto. The legal name of the Borrower is Bird US Opco, LLC. Holdco Guarantor’s sole jurisdiction of organization is the State of Delaware and such jurisdiction has not changed within four months prior to the date of this Agreement. The chief executive office of Holdco Guarantor is set forth on Schedule V hereto. The legal name of Holdco Guarantor is Bird US Holdco, LLC. (k) Investment Company Act; Volcker Rule. Neither of the Credit Parties (i) is, and is not controlled by, an “investment company” registered or required to be registered under the Investment Company Act and (ii) is a “covered fund” under the Volcker Rule.


 
35 US-DOCS\137537506.9 (l) No Material Adverse Effect. Since December 15, 2022, there has been no Material Adverse Effect with respect to such Credit Party. (m) Accuracy of Information. All written information (including Payment Date Certificates, Loan Requests, certificates, reports, statements, and other documents) (other than the Projections, forward looking information and information of a general economic nature or general industry nature) furnished to the Administrative Agent or any Lender by or on behalf of a Bird Transaction Party pursuant to any provision of this Agreement or any other Transaction Document, or in connection with or pursuant to any amendment or modification of, or waiver under this Agreement or any other Transaction Document, is at the time the same are so furnished (or as of any earlier date or later date (in the case of any certifications in any Loan Request to be made on the date the related Credit Extension is made) specified therein), when taken as a whole, true and correct in all material respects on the date the same are furnished to the Administrative Agent or such Lender (or, in the case of any certifications in any Loan Request to be made on the date the related Credit Extension is made, on the date such Credit Extension is made), and does not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances in which such statements are made; provided, that with respect to any Loan Request furnished solely for the purpose of a Credit Extension on or around April 26th, 2022, the written information set forth in such Loan Request shall not be subject to the requirements of this Section 7.01(m) at the time furnished (but shall be subject to the requirements of this Section 7.01(m) as of the date of the Credit Extension set forth therein). The Projections and other forward looking information and information of a general economic nature prepared by or on behalf of the Bird Transaction Parties or any of their respective representatives and that have been made available to the Administrative Agent or any Lender in connection with the Transaction Documents have been prepared in good faith based upon assumptions believed by such Bird Transaction Party to be reasonable (it being understood that such Projections are as to future events and are not to be viewed as facts, such Projections are subject to significant uncertainties and contingencies and that actual results during the period or periods covered by any such Projections may differ significantly from the projected results, and that no assurance can be given that the projected results will be realized) as of the date such Projections and information were furnished to the Administrative Agent or such Lender. (n) Anti-Money Laundering/International Trade Law Compliance. None of the Bird Transaction Parties and, to the knowledge of the Credit Parties, none of their Affiliates (i) is in violation of any Anti-Terrorism Law, (ii) engages in or conspires to engage in any transaction that violates or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law, (iii) is a Blocked Person, or is controlled by a Blocked Person, (iv) is acting or will act for or on behalf of a Blocked Person, (v) is associated with, or will become associated with, a Blocked Person or (vi) is providing, or will provide, material, financial or technical support or other services to or in support of acts of terrorism of a Blocked Person. No Bird Transaction Party nor, to the knowledge of any Credit Party, any of their Affiliates or agents acting or benefiting in any capacity in connection with the transactions contemplated by this Agreement, (A) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person, or (B) deals in, or otherwise engages in any transaction relating to, any property or interest in property blocked pursuant to Executive Order No. 13224, any similar executive order or other Anti-Terrorism Law. (o) Perfection Representations. (i) This Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Borrower’s right, title and interest in, to and under the Collateral which (A) upon the filing of the UCC financing statements referred to in Section 7.01(o)(iv) and the execution of the Account Control Agreement referred to in 36 US-DOCS\137537506.9 Section 7.01(p)(iii), will constitute a perfected security interest and is enforceable against creditors of and purchasers from the Borrower and (B) will be free of all Adverse Claims in such Collateral, except for Permitted Liens. (ii) Except as otherwise notified to the Administrative Agent in writing, the Scooters are not subject to any certificate of title act or similar law, statute, or regulation. (iii) The Borrower owns and has good and marketable title to the Collateral free and clear of any Adverse Claim of any Person other than Liens (including Permitted Liens) permitted to exist under this Agreement. (iv) All appropriate financing statements, financing statement amendments and continuation statements have been delivered to the Administrative Agent to be filed in the proper filing office in the appropriate jurisdictions under Applicable Law in order to perfect (and continue the perfection of) the sale and contribution of the Scooters to the Borrower pursuant to the Contribution Agreements and the grant by the Borrower of a security interest in the Collateral to the Administrative Agent pursuant to this Agreement. (v) Other than the security interest granted to the Administrative Agent pursuant to this Agreement, the Borrower has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Collateral except as permitted by this Agreement and the other Transaction Documents. The Borrower has not authorized the filing of and, except as otherwise notified to the Administrative Agent in writing, is not aware of any financing statements filed against the Borrower that include a description of collateral covering the Collateral other than any financing statement (i) in favor of the Administrative Agent and the Note Collateral Agent or (ii) that has been terminated. The Borrower is not aware of any judgment lien, ERISA lien or tax lien filings against the Borrower that are not permitted by this Agreement and the other Transaction Documents. (vi) Notwithstanding any other provision of this Agreement or any other Transaction Document, the representations contained in this Section 7.01(o) shall be continuing and remain in full force and effect until the Final Payout Date. (p) Collection Account. (i) Nature of Accounts. The Collection Account constitutes a “deposit account” within the meaning of the applicable UCC. (ii) Ownership. The Collection Account is in the name of the Borrower, and the Borrower owns and has good and marketable title to the Collection Account free and clear of any Adverse Claim, except for Liens described in clauses (a) through (d) of the definition of Permitted Liens. (iii) Perfection. The Borrower has delivered to the Administrative Agent a fully executed Account Control Agreement relating to the Collection Account. The Administrative Agent has “control” (as defined in Section 9-104 of the UCC) over the Collection Account. (iv) Instructions. The Collection Account is not in the name of any Person other than the Borrower. No Bird Transaction Party has consented to the Account Bank


 
37 US-DOCS\137537506.9 complying with instructions of any Person with respect to the Collection Account other than the Administrative Agent or the Borrower. (q) Ordinary Course of Business. Each remittance of any amount by or on behalf of the Borrower to the Administrative Agent or the Lenders under this Agreement will have been (i) in payment of a debt incurred by the Borrower in the ordinary course of business or financial affairs of the Borrower and (ii) made in the ordinary course of business or financial affairs of the Borrower. (r) Compliance with Law. The Credit Parties have complied with all Applicable Laws to which each of them may be subject, except where any such failure to comply with Applicable Laws could not reasonably be expected to have a Material Adverse Effect. (s) Bulk Sales Act. No transaction contemplated by this Agreement requires compliance by it with any bulk sales act or similar law. (t) Taxes. The Bird Transaction Parties have (i) timely filed all material tax returns (federal, state and local) required to be filed by them, (ii) paid, or caused to be paid, all material taxes, assessments and other governmental charges, if any, other than taxes, assessments and other governmental charges being contested in good faith by appropriate proceedings and as to which adequate reserves have been provided in accordance with GAAP, and (iii) paid all fees and expenses required to be paid by it in connection with the conduct of its business, the maintenance of its existence and its qualification as a foreign limited liability company authorized to do business in each state in which it is required to so qualify, except with respect to this clause (iii), where any such failure to pay such fees and expenses could not reasonably be expected to have a Material Adverse Effect. (u) Tax Status. Each of the Credit Parties (i) is, and shall at all relevant times continue to be, a “disregarded entity” within the meaning of U.S. Treasury Regulation § 301.7701-3 for U.S. federal income tax purposes that is wholly owned by a “United States person” (within the meaning of Section 7701(a)(30) of the Code) and (ii) is not and will not at any relevant time become an association (or publicly traded partnership) taxable as a corporation for U.S. federal income tax purposes. As of the Closing Date, the Credit Parties are not subject to any Tax in any jurisdiction outside the United States and following the Closing Date, the Credit Parties will use their reasonable best efforts to not become subject to any material Tax in any jurisdiction outside the United States. (v) [Reserved]. (w) Other Transaction Documents. Each representation and warranty made by the Credit Parties under each other Transaction Document to which it is a party is true and correct in all material respects as of the date when made. (x) Scooters. On the Closing Date, all of the Scooters are Eligible Scooters, and on the date of each Credit Extension, all of the Scooters transferred to Borrower in respect of such Credit Extension are Eligible Scooters. 38 US-DOCS\137537506.9 ARTICLE VIII COVENANTS SECTION 8.01. Covenants of the Credit Parties. At all times from the Closing Date until the Final Payout Date: (a) Payment of Principal and Interest. The Borrower shall duly and punctually pay Interest, Fees, principal of the Loans, and all other amounts payable by the Borrower hereunder in accordance with the terms of this Agreement. (b) Existence. Each of the Credit Parties shall keep in full force and effect its existence and rights as a limited liability company under the laws of the State of Delaware, and shall obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement, the other Transaction Documents, the Collateral, and the Guarantor Collateral, except where failure to maintain such qualification could not reasonably be expected to have a Material Adverse Effect. (c) Financial Reporting. The Credit Parties (or the Parent on their behalf) shall furnish to the Administrative Agent: (i) Borrower Financial Information. Not later than thirty (30) calendar days following each Collection Period, an income statement for the Credit Parties; and not later than forty-five (45) days following each fiscal quarter of the Credit Parties, a balance sheet for the Credit Parties. Following the first anniversary of the Closing Date, such income statement and balance sheet shall be prepared in accordance with GAAP in all material respects. (ii) Information and Reports. (A) Not later than two (2) Business Days prior to each Payment Date, a Payment Date Certificate for such Payment Date; and (B) not later than two (2) Business Days prior to each Payment Date, an updated Data Tape for the Collection Period ended immediately prior to such Payment Date. (iii) AUP Letter. Not later than (x) one hundred twenty (120) calendar days following the Closing Date, (y) on June 30 of each calendar year, beginning on June 30, 2022, and (z) following the occurrence of an Event of Default, upon request by the Administrative Agent, the Administrative Agent shall have received a letter from a nationally recognized audit or similar firm (the “AUP Consultant”) concerning the procedures with respect to each such date set forth on Exhibit I attached hereto performed in respect of the Model and Data Tape provided on or prior to the Closing Date, in the case of the letter referred to in clause (x) above, and in respect of the information set forth on Exhibit I, in the case of the letter referred to in clause (y) or clause (z) above; provided, that so long as the Bird Parties use commercially reasonable efforts to cooperate with the AUP Consultant with respect to each such letter, the obligations set forth in this clause (iii) shall be deemed satisfied upon the earlier of (A) the delivery of such letter to the Administrative Agent and (B) (x) the date that is one hundred twenty (120) calendar days following the Closing Date, in the case of the letter referred to in clause (x) above, and (y) June 30 of each calendar year, in the case of the letter referred to in clause (y) above.


 
39 US-DOCS\137537506.9 (iv) Other Information. Such other information (including non-financial information) as the Administrative Agent or any Lender may from time to time reasonably request to the extent such information is not otherwise already provided to the Administrative Agent or Lenders pursuant to a report or covenant set forth herein. (d) Notices. Each Credit Party (or the Parent on its behalf) will notify the Administrative Agent and each Lender in writing of any of the following events promptly upon (but in no event later than five (5) Business Days after) a Financial Officer learns of the occurrence thereof, with such notice describing the same, and if applicable, the steps being taken by the Person(s) affected with respect thereto; provided, that notice delivered by any Bird Party (notwithstanding the requirement below as to delivery from the Borrower or officer thereof) as to a given event shall be deemed to satisfy such requirement: (i) Notice of Events of Default. Any Event of Default or Potential Event of Default that has occurred and is continuing. (ii) Representations and Warranties. The failure of any representation or warranty made or deemed to be made by any of the Credit Parties under this Agreement or any other Transaction Document to be true and correct in any material respect when made. (iii) Litigation. The institution of any litigation, arbitration proceeding, or governmental proceeding with respect to any Bird Transaction Party, provided that (A) with respect to any Person other than the Credit Parties, notice is only required to the extent such litigation, arbitration proceeding, or governmental proceeding could reasonably be expected to have a Material Adverse Effect if adversely determined; and (B) with respect to the Credit Parties and any litigation, arbitration proceeding, or governmental proceeding involving a monetary claim, notice is only required to the extent the claimed amount is $500,000 or more. (iv) Adverse Claim. (A) Any Person shall obtain an Adverse Claim (other than a Permitted Lien) upon the Collateral or the Guarantor Collateral or any portion thereof, or (B) any Person other than the Borrower, the applicable Account Bank or the Administrative Agent shall obtain any rights or direct any action with respect to the Collection Account. (v) Change in Accountants or Accounting Policy. Any change in (A) the external accountants of any Bird Party or (B) any material accounting policy of any Bird Party that is relevant to the transactions contemplated by this Agreement or any other Transaction Document. (vi) Note Documents. The occurrence of any Default or Event of Default under the Note Documents (each as defined therein). (vii) Material Adverse Change. Notice of any material adverse change in the business, operations, property or financial or other condition of any Bird Transaction Party. (viii) Government Approvals. Notice of any termination, expiration, or material change in any Government Approvals for any Municipality in which any of the 40 US-DOCS\137537506.9 Scooters are located if any such termination, expiration, or material change could reasonably be expected to (A) in the case of the Scooters, result in a breach of Section 8.01(v) as of the next occurring Payment Date or Quarterly Payment Date, as applicable, (B) in the case of the Scooters, result in a breach of Section 8.01(y), or (C) have a Material Adverse Effect. (ix) Fleet Managers. Notice of any change to the operation of the Scooters such that 25% or more of all Scooters are not or will not be managed by fleet managers. (e) Compliance with Laws. The Credit Parties will comply with all Applicable Laws to which they may be subject if the failure to comply could reasonably be expected to have a Material Adverse Effect. (f) Furnishing of Information and Inspection of Records. The Credit Parties will, at the Credit Parties’ expense, during regular business hours with prior written notice (i) permit the Administrative Agent and each Lender or their respective agents or representatives to (A) examine and make copies of and abstracts from all books and records relating to the Scooters and other Collateral and Guarantor Collateral, (B) visit the offices and properties of the Credit Parties for the purpose of examining such books and records and (C) discuss matters relating to the Scooters, the other Collateral, the Guarantor Collateral or the Credit Parties’ performance hereunder or under the other Transaction Documents with any of the senior management of the Credit Parties having knowledge of such matters and (ii) without limiting the provisions of clause (i) above, during regular business hours, at the Credit Parties’ expense, upon prior written notice from the Administrative Agent, permit certified public accountants or other auditors acceptable to the Administrative Agent to conduct a review of its books and records with respect to the Scooters and other Collateral; provided, that neither the Administrative Agent nor any accountants or auditors engaged by the Administrative Agent shall be entitled to take copies, extracts, or photos of any information that contains trade secrets, is subject to legal privilege, or is otherwise of strategic importance to the business of the Bird Transaction Parties, in each case, as determined by the Borrower acting reasonably and in good faith; provided, further, that the Credit Parties shall be required to reimburse the Administrative Agent for only one (1) such review pursuant to clause (ii) above in any twelve-month period, unless an Event of Default has occurred and is continuing. (g) Accounts. The Borrower shall not terminate any Account Control Agreement or the Account Bank or close the Collection Account. (h) Sales, Liens, etc. Except as otherwise provided herein or in any other Transaction Document, the Borrower will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Adverse Claim (other than Permitted Liens) upon (including, without limitation, the filing of any financing statement) or with respect to, any Scooter or other Collateral, or assign any right to receive income in respect thereof. For the avoidance of doubt, the Borrower and Holdco Guarantor shall be permitted to guarantee the Notes issued by Bird Global pursuant to the Note Purchase Agreement and grant Liens in favor of the Note Collateral Agent to secure such guarantee, subject to the terms of the Intercreditor Agreement. (i) Fundamental Changes. The Credit Parties shall not, without the prior written consent of the Administrative Agent and the Lenders, permit themselves to merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of their respective assets (whether now owned or hereafter acquired) to, any Person; provided, that the transfer of Scooters by the Borrower to Parent (directly or by way of transfer to Holdco Guarantor and from Holdco Guarantor to Parent) pursuant to and in accordance with Section 8.01(s) shall be permitted.


 
41 US-DOCS\137537506.9 (j) Books and Records. From and after the date that is sixty (60) calendar days after the Closing Date (as the same may be extended by the Administrative Agent in its sole discretion), the Borrower shall maintain and implement (or cause the Parent to maintain and implement) administrative and operating procedures (including an ability to recreate records evidencing Collections in the event of the destruction of the originals thereof), and keep and maintain (or cause the Parent to keep and maintain) all documents, books, records, computer tapes and disks and other information reasonably necessary or advisable in connection with operating the Scooters and documenting Collections. (k) Security Interest, Etc. The Credit Parties will (and will cause the Parent to), at their expense, take all action necessary to establish and maintain a valid and enforceable first priority perfected security interest in the Collateral and the Guarantor Collateral, respectively, in each case free and clear of any Adverse Claim except for Liens permitted to exist under this Agreement or the other Transaction Documents, in favor of the Administrative Agent (on behalf of the Secured Parties), including taking such action to perfect, protect or more fully evidence the security interest of the Administrative Agent (on behalf of the Secured Parties) as the Administrative Agent or any Secured Party may reasonably request, in each case consistent with the terms of this Agreement or the other Transaction Documents. In order to evidence the security interests of the Administrative Agent under this Agreement, the Credit Parties shall, from time to time take such action, or execute and deliver such instruments as may be necessary (including, without limitation, such actions as are reasonably requested by the Administrative Agent) to maintain and perfect, as a first-priority interest, the Administrative Agent’s security interest in the Collateral and Guarantor Collateral, respectively. The Credit Parties shall, from time to time and within the time limits established by law, prepare and present to the Administrative Agent for the Administrative Agent’s authorization and approval, all financing statements, amendments, continuations or initial financing statements in lieu of a continuation statement, or other filings necessary to continue, maintain and perfect the Administrative Agent’s security interest as a first-priority interest. The Administrative Agent’s approval of such filings shall authorize the Credit Parties to file such financing statements under the UCC without the signature of the Credit Parties or the Administrative Agent where allowed by Applicable Law. Notwithstanding anything else in the Transaction Documents to the contrary, the Credit Parties shall not have any authority to file a termination, partial termination, release, partial release, or any amendment that deletes the name of a debtor or excludes collateral of any such financing statements filed in connection with the Transaction Documents, without the prior written consent of the Administrative Agent. (l) Certain Agreements. Without the prior written consent of the Administrative Agent and the Lenders, the Credit Parties will not (and will not permit the Parent to) (x) amend, modify, waive, revoke or terminate any Transaction Document or any provision of their organizational documents, or (y) exercise any remedies in respect of the Transaction Documents or give any direction to the Lessee under the Scooter Lease. (m) Restricted Payments. (i) Except pursuant to clauses (ii), (iii), and (iv) below, the Credit Parties will not: (A) purchase or redeem any of their respective membership interests, or (B) declare or pay any distribution on their respective membership interest or set aside any funds for any such purpose (the amounts described in clauses (A) and (B) being referred to as “Restricted Payments”). (ii) The Borrower may make Restricted Payments only out of the funds, if any, it receives pursuant to the last sentence of Section 2.02(a), Section 3.02, and Section 4.01(a) of this Agreement; provided, that the Borrower shall not pay, make or declare any 42 US-DOCS\137537506.9 Restricted Payment (including any dividend) if, after giving effect thereto, any Event of Default or Potential Event of Default shall have occurred and be continuing. (iii) Holdco Guarantor may make Restricted Payments only out of the funds it receives pursuant to clause (ii) above; provided, that Holdco Guarantor shall not pay, make or declare any Restricted Payment (including any dividend) if, after giving effect thereto, any Event of Default or Potential Event of Default shall have occurred and be continuing. (iv) Without limiting the foregoing, upon written notice to the Administrative Agent, the Borrower and Holdco Guarantor may each make Restricted Payments on or prior to the second Business Day following a Payment Date, if (A) such Restricted Payments are made from funds that would have been available for distribution on such Payment Date pursuant to Section 4.01(a) but for the existence of a Potential Event of Default under Section 8.01(y)(i) on such Payment Date and (B) prior to the making of such Restricted Payments, (x) the Borrower cures such Potential Event of Default in accordance with Section 8.01(y)(i), and (y) as of the date of such Restricted Payments, the LTC Percentage is equal to or less than the Maximum LTC Percentage. (n) Other Business. Other than as contemplated by the Transaction Documents and the Note Documents to which the Credit Parties are party, the Credit Parties will not: (i) engage in any other business or activity, (ii) create, incur or permit to exist any Debt of any kind (or cause or permit to be issued for its account any letters of credit or bankers’ acceptances), (iii) form any Subsidiary or make any investments in any other Person, or (iv) acquire obligations or securities of or make loans or advances to or grant a security interest in or pledge their assets for the benefit of its member, any Affiliate or any other Person (other than Permitted Liens). (o) Change in Name or Jurisdiction of Origination, etc. (i) The Credit Parties shall at all times be organized under the laws of the State of Delaware and shall not take any action to change their jurisdiction of organization. (ii) The Credit Parties will not change their respective name, location, identity or corporate structure unless (w) such Credit Party provides the Administrative Agent and Lenders at least thirty (30) days prior notice thereof, (x) such Credit Party, at its own expense, shall have taken all action necessary to perfect or maintain the perfection of the security interest under this Agreement (including, without limitation, the filing of all financing statements and the taking of such other action as the Administrative Agent may request in connection with such change or relocation), (y) the Administrative Agent and the Lenders have consented thereto in writing, and (z) if requested by the Administrative Agent, such Credit Party shall cause to be delivered to the Administrative Agent, an opinion, in form and substance satisfactory to the Administrative Agent as to such UCC perfection and priority matters as the Administrative Agent may request at such time. (p) Taxes. Each of the Credit Parties will (i) timely file all material tax returns (federal, state and local) required to be filed by it and (ii) pay, or cause to be paid, all material taxes, assessments and other governmental charges, if any, other than taxes, assessments and other governmental charges being contested in good faith by appropriate proceedings and as to which adequate reserves have been provided in accordance with GAAP.


 
43 US-DOCS\137537506.9 (q) Tax Status of the Credit Parties. The Credit Parties will remain wholly-owned subsidiaries of a United States person (within the meaning of Section 7701(a)(30) of the Code) and will not incur withholding taxes under Section 1446 of the Code. No action will be taken that would cause either Credit Party to (i) be treated other than as a “disregarded entity” within the meaning of U.S. Treasury Regulation § 301.7701-3 for U.S. federal income tax purposes or (ii) become an association taxable as a corporation or a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes. The Credit Parties will use reasonable best efforts to not become subject to any Tax in any jurisdiction outside the United States. (r) Compliance with Anti-Terrorism Laws. The Administrative Agent hereby notifies the Credit Parties that pursuant to the requirements of Anti-Terrorism Laws, and the Administrative Agent’s policies and practices, the Administrative Agent is required to obtain, verify and record certain information and documentation that identifies the Credit Parties and their respective principals, which information includes the name and address of each Credit Party and its principals and such other information that will allow Agent to identify such party in accordance with Anti-Terrorism Laws. No Credit Party will, directly or indirectly, knowingly enter into any contract with any Blocked Person or any Person listed on the OFAC Lists. Each Credit Party shall immediately notify the Administrative Agent if such Credit Party has actual knowledge that any Credit Party or any of their respective Affiliates or agents acting or benefiting in any capacity in connection with the transactions contemplated by this Agreement is or becomes a Blocked Person or (i) is convicted on, (ii) pleads nolo contendere to, (iii) is indicted on, or (iv) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering. No Credit Party will, directly or indirectly, (i) conduct any business or engage in any transaction or dealing with any Blocked Person, including, without limitation, the making or receiving of any contribution of funds, goods or services to or for the benefit of any Blocked Person, (ii) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224, any similar executive order or other Anti-Terrorism Law, or (iii) engage in or conspire to engage in any transaction that violates or attempts to violate any of the prohibitions set forth in Executive Order No. 13224 or other Anti-Terrorism Law. (s) Maintenance and Operation of Scooters. At all times, the Borrower will (i) to the extent required to comply with Section 8.01(v), maintain, or cause to be maintained by the Parent pursuant to the Scooter Lease, the Scooters in good repair and working order (reasonable wear and tear excepted), and (ii) cause such Scooters to be operated by the Parent pursuant to and in accordance with the terms of the Scooter Lease. The Borrower may not sell or otherwise transfer title of any Scooter to any other Person (it being acknowledged and agreed that any Lien on any Scooter pursuant to clause (e) of the definition of Permitted Liens shall not constitute a sale or transfer of title in such Scooter). (t) Certificate of Title Acts. The Borrower will not operate and will not permit the Parent to operate any of the Scooters in a jurisdiction in which the Scooters may or are required to be registered under any certificate of title act or similar law, statute, or regulation. (u) Insurance. The Borrower will cause the Parent to list (i) each of the Borrower and the Administrative Agent as an “additional insured” on any liability insurance policy maintained by the Parent in respect of the Scooters and (ii) the Administrative Agent as a “loss payee” on any casualty insurance policy maintained by the Parent in respect of the Scooters (but not, for the avoidance of doubt, with respect to any insurance policy for scooters owned by Parent or any of Parent’s other assets). The Borrower shall deposit any Insurance Proceeds received in respect of any Scooters into the Collection Account for application in accordance with the Priority of Payments. (v) Loan to Cost Test. As of each Quarterly Payment Date prior to the Commitment Termination Date, each Payment Date after the Commitment Termination Date, or any other date of 44 US-DOCS\137537506.9 determination, the LTC Percentage, measured as of such date after giving effect to all transactions on such date, will be equal to or less than the Maximum LTC Percentage. (w) [Reserved]. (x) [Reserved]. (y) Government Approvals. If on any date, the Borrower fails to maintain all Government Approvals in any Municipality in which the Scooters are located and, (i) either singly or together, any such failure affects 5% or more of all Scooters (such Scooters for which Government Approvals are not maintained, “Impacted Scooters”), the Borrower shall either (A) replace Impacted Scooters with Eligible Scooters such that, after giving effect to such replacement, the number of Impacted Scooters is less than 5% of all Scooters (the number of Impacted Scooters that is greater than 5% of all Scooters, the “Identified Impacted Scooters”), or (B) make any necessary prepayment of the Loans in accordance with Section 2.02(e) in an amount equal to the product of (x) the aggregate of the Cost of each Identified Impacted Scooter multiplied by (y) the Advance Rate for such Identified Impacted Scooter; or (ii) either singly or together any such failure affects 20% or more of all Scooters, the Borrower shall replace Impacted Scooters with Eligible Scooters such that, after giving effect to such replacement, the number of Impacted Scooters is less than 20% of all Scooters. (z) Tariffs. If the Borrower receives a refund in respect of any tariffs related to any Scooter, the Borrower will, to the extent received pursuant to Section 4.6 of the Scooter Lease, deposit such amount in the Collection Account for application in accordance with the Priority of Payments. (aa) Post-Closing Covenants. The Borrower shall procure that the applicable Bird Transaction Parties comply with the covenants (and the timeframes for compliance therewith) set forth in Schedule VII. SECTION 8.02. Separate Existence of the Credit Parties. Each of the Credit Parties shall take such actions as shall be required in order that: (a) Special Purpose Entity. The Borrower will be a special purpose entity whose activities are restricted in its Limited Liability Company Agreement to: (i) purchasing or otherwise acquiring Scooters from Parent, (ii) entering into this Agreement and pledging the Collateral to secure its obligations hereunder, (iii) entering into the Scooter Lease Agreement and the other Transaction Documents, (iv) owning and maintaining deposit accounts, (v) making distributions or payments solely to the extent permitted by Sections 3.02 and 4.01, (vi) transferring Scooters back to Parent pursuant to and in accordance with Section 8.01(s), (vii) entering into a Guarantee (as defined in the Note Purchase Agreement) to guarantee the obligations of Bird Global under the Note Purchase Agreement and pledging the Guarantor Collateral (as defined in such Guarantee) to secure its obligations thereunder, and exercising its rights and performing its obligations thereunder, (viii) acknowledging the Intercreditor Agreement, and (ix) conducting such other activity as it deems necessary or appropriate to carry out any of the foregoing activities. Holdco Guarantor will be a special purpose entity whose activities are restricted in its Limited Liability Company Agreement to: (i) holding the equity interest of Borrower, (ii) entering into the Holdco Guarantee and pledging the Guarantor Collateral to secure its obligations thereunder, (iii) entering into this Agreement and the other Transaction Documents, (iv) making distributions or payments to Parent from distributions or payments received from Borrower pursuant to clause (v) of the preceding sentence, (v) entering into a Guarantee (as defined in the Note Purchase Agreement) to guarantee the obligations of Bird Global under the Note Purchase Agreement and pledging the Guarantor Collateral (as defined in such Guarantee) to secure its obligations thereunder, and exercising its rights and performing its obligations thereunder, (vi) acknowledging the Intercreditor


 
45 US-DOCS\137537506.9 Agreement and (vii) conducting such other activity as it deems necessary or appropriate to carry out any of the foregoing activities. (b) Accounts. Each of the Credit Parties will maintain its own accounts separate from those of any other person and ensure that funds are not comingled or diverted to the accounts of any other person (or vice versa) (except as not prohibited under the Transaction Agreements), hold all of its assets solely in its own name and not comingle its assets with assets of any other person (except, with respect to cash, as not prohibited under the Transaction Agreements), and, subject to the foregoing exceptions, maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any of any other person. (c) Books and Records. The Credit Parties’ books and records will be maintained separately from those of Parent and any of its Affiliates to the extent necessary to comply with the Credit Parties’ obligations under this Agreement and the other Transaction Documents; provided, that the Credit Parties shall not be obliged to comply with this covenant until the date that is sixty (60) calendar days after the Closing Date (or such later date as may be agreed by the Administrative Agent in its sole discretion). (d) Corporate Formalities. The Credit Parties will conduct their respective affairs in accordance with their respective charter documents and observe all necessary, appropriate and customary limited liability company formalities, including, but not limited to, holding all regular and special meetings appropriate to authorize all of its actions, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate books, records and accounts. (e) Arm’s-Length Relationships. The Credit Parties will maintain arm’s-length relationships with Parent and any of Parent’s Affiliates, other than transactions contemplated by the Transaction Documents (including the Parent Guaranty) and the Note Documents to which the Credit Parties are party. Any Person (other than Parent or any of Parent’s Subsidiaries) that renders or otherwise furnishes services to the Credit Parties will be compensated by the Borrower at market rates for such services it renders or otherwise furnishes to the Borrower. Neither the Credit Parties on the one hand, nor Parent or any Affiliate thereof, on the other hand, will be or will hold itself out to be responsible for the debts of the other or the decisions or actions respecting the daily business and affairs of the other, other than as contemplated by any of the Transaction Documents (including pursuant to the Parent Guaranty). The Credit Parties will and will cause Parent and its Affiliates to immediately correct any known misrepresentation with respect to the foregoing, and will not operate or purport to operate as an integrated single economic unit with respect to each other or in their dealing with any other entity, other than as contemplated by the Transaction Documents. (f) Financial Statements. The Credit Parties will not list their respective assets as assets on the financial statement of any of their Affiliates; provided, that their assets may be included in a consolidated financial statement of their Affiliates if appropriate notations shall be made on such consolidated financial statements to indicate their separateness from such Affiliate. (g) Obligations of any Other Person. The Credit Parties will not assume or guarantee any of the liabilities of any of their Affiliates or any other Person, and not hold out their respective credit or assets as being available to satisfy the obligations of any of their Affiliates or any other Person, except in each case, as contemplated by the Transaction Documents or pursuant to the Guarantees (as defined in the Note Purchase Agreement) delivered by the Credit Parties pursuant to the Note Documents. 46 US-DOCS\137537506.9 (h) Payment of Liabilities and Expenses. Each of the Credit Parties will pay its own liabilities and expenses only out of its own funds, other than pursuant to or as permitted under (or contemplated by) the Transaction Documents or pursuant to the Guarantees (as defined in the Note Purchase Agreement) delivered by the Credit Parties pursuant to the Note Documents. (i) Tax Returns. Each of the Credit Parties will file its own tax returns separate from those of its Affiliates, except to the extent it is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under Applicable Law (or except to the extent otherwise required by law). (j) Invoices. Each of the Credit Parties will direct its creditors to send invoices and other statements of account directly to it and not to any Affiliate that is not a Bird Party and cause its other Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to it. (k) Representatives. Each of the Credit Parties will cause its managers, officers, agents and other representatives to act at all times consistently and in furtherance of the foregoing and in its best interests. ARTICLE IX SECURITY INTEREST SECTION 9.01. Security Interest. (a) As security for the performance by the Borrower of all the terms, covenants and agreements on the part of the Borrower to be performed under this Agreement or any other Transaction Document, including the punctual payment when due of the Aggregate Capital and all Interest in respect of the Loans and all other Borrower Obligations, the Borrower hereby grants to the Administrative Agent for its benefit and the ratable benefit of the Secured Parties, a continuing security interest in, all of the Borrower’s right, title and interest in, to and under all of the following, whether now or hereafter owned, existing or arising (collectively, the “Collateral”): (i) all Scooters, (ii) [reserved], (iii) all Collections, (iv) the Collection Account and all amounts on deposit therein, and all certificates and instruments, if any, from time to time evidencing the Collection Account and amounts on deposit therein, (v) all rights (but none of the obligations) of the Borrower under the Transaction Agreements, (vi) all other personal and fixture property or assets of the Borrower of every kind and nature including, without limitation, all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts, chattel paper (whether tangible or electronic), deposit accounts, securities accounts, securities entitlements, letter-of-credit rights, commercial tort claims, securities and all other investment property, supporting obligations, money, any other contract rights or rights to the payment of money, insurance claims and proceeds, and all general intangibles (including all payment intangibles) (each as defined in the UCC), and (vii) all proceeds of, and all amounts received or receivable under any or all of, the foregoing. The Administrative Agent (for the benefit of the Secured Parties) shall have, with respect to all the Collateral, and in addition to all the other rights and remedies available to the Administrative Agent (for the benefit of the Secured Parties), all the rights and remedies of a secured party under any applicable UCC. The Borrower hereby authorizes the Administrative Agent to file financing statements describing as the collateral covered thereby as “all of the debtor’s personal property or assets” or words to that effect, notwithstanding that such wording may be broader in scope than the collateral described in this Agreement.


 
47 US-DOCS\137537506.9 (b) Borrower authorizes the Administrative Agent to: (i) perfect the Administrative Agent’s security interest in the Collateral, by filing or authorizing the filing of, at the expense of the Borrower, UCC-1 financing statements (including fixture filings) naming the Administrative Agent as secured party and describing the Collateral in a manner that the Administrative Agent reasonably determines is necessary or advisable to perfect the security interest granted hereunder and (ii) to execute the Account Control Agreements. (c) At any time or from time to time upon the request of Administrative Agent, the Borrower will, at its expense, promptly execute, acknowledge and deliver such further documents and do such other acts and things as Administrative Agent reasonably determines is necessary or advisable to perfect the security interest granted hereunder. Immediately upon the occurrence of the Final Payout Date, the Collateral shall be automatically released from the lien created hereby, and this Agreement and all obligations (other than those expressly stated to survive such termination) of the Administrative Agent and the Lenders shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the Borrower. Upon the sale, transfer, or other disposition of any Collateral in accordance with this Agreement (including any transfer of Scooters by the Borrower to Parent pursuant to Section 8.01(s)), the Lien created hereby in favor of the Administrative Agent for the benefit of the Secured Parties in such Collateral shall be released and all rights to such Collateral shall revert to the Borrower. In furtherance of the foregoing, promptly following written request therefor by the Borrower delivered to the Administrative Agent following any such termination or release, and at the expense of the Borrower, the Administrative Agent shall execute and deliver to the Borrower UCC-3 termination statements or UCC-3 amendment statements and such other documents as the Borrower shall reasonably request to evidence such termination or release. Notwithstanding any other provision contained herein, the Liens created hereby and the rights, remedies, duties and obligations provided for herein are subject in all respects to the provisions of the Intercreditor Agreement. In the event of any conflict or inconsistency between the provisions of this Agreement and the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall control. ARTICLE X EVENTS OF DEFAULT SECTION 10.01. Events of Default. If any of the following events (each an “Event of Default”) shall occur: (a) the Borrower fails to pay (i) any Amortization Amount when due, (ii) any amount on the Final Maturity Date, or (iii) any Interest or any other amount due and payable under this Agreement (other than the amounts specified in clauses (i) and (ii) hereof), and such failure shall continue for one (1) Business Day; (b) the Borrower shall fail to comply with the covenant set forth in Section 8.01(v) (Loan to Cost Test) and within sixty (60) calendar days following the earlier of (x) the actual knowledge of any Responsible Officer of any Bird Transaction Party of such failure and (y) the Administrative Agent’s written notice to any Bird Transaction Party of such failure, the Borrower fails to cure such failure by either (i) replacing any Ineligible Scooters with Eligible Scooters, or (ii) prepaying the Loans in accordance with Section 2.02(e) in an amount that would result in compliance with the covenant in Section 8.01(v) on a pro forma basis; 48 US-DOCS\137537506.9 (c) the Parent shall fail to comply with any of the covenants or agreements set forth in the Parent Representation Letter; (d) [reserved]; (e) the Borrower shall fail to comply with the covenant set forth in Section 8.01(y) (Government Approvals) and such failure shall continue for sixty (60) calendar days following the earlier of (x) the actual knowledge of any Responsible Officer of any Bird Transaction Party of such failure and (y) the Administrative Agent’s written notice to any Bird Transaction Party of such failure; (f) the EMEA Guarantee is terminated or ceases to be in full force and effect for any reason (other than in accordance with its terms or as otherwise expressly permitted in the Transaction Documents) or the EMEA Guarantor fails to observe or perform any covenant specified in the EMEA Guaranty or a proceeding shall be commenced by the EMEA Guarantor to establish the invalidity or unenforceability of the EMEA Guarantee; (g) the Borrower or the Parent shall fail to deliver a Payment Date Certificate at the time required pursuant to this Agreement, and such failure shall remain unremedied for two (2) Business Days; (h) any Operating Lease Event of Default or Servicer Default under the Scooter Lease shall occur; (i) any Bird Transaction Party or, in the case of the Intercreditor Agreement, any of Bird Global or any Bird Transaction Party, shall fail to perform or observe any other term, covenant or agreement under this Agreement or any other Transaction Document (other than with respect to the events listed in subsections (a) through (h) above or the event listed in subsection (u) below), and such failure, solely to the extent capable of cure, shall continue for five (5) Business Days following the earlier of (x) the actual knowledge of any Responsible Officer of any Bird Transaction Party of such failure and (y) the Administrative Agent’s written notice to any Bird Transaction Party of such failure; (j) except as would result under subsection (h) above, any representation or warranty made or deemed made by any Bird Transaction Party (or any of their respective officers) under or in connection with this Agreement or any other Transaction Document or any information or report delivered by any Bird Transaction Party pursuant to this Agreement or any other Transaction Document, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered, which, solely to the extent capable of cure, remains unremedied for five (5) Business Days following the earlier of (x) any Bird Transaction Party’s actual knowledge of such breach and (y) the Administrative Agent’s written notice to any Bird Transaction Party of such breach; (k) except as would result under subsection (h) above, (i) this Agreement or any security interest granted pursuant to this Agreement or any other Transaction Document shall for any reason cease to create, or for any reason cease to be, a valid and enforceable first priority perfected security interest in favor of the Borrower or the Administrative Agent with respect to the Collateral, free and clear of any Adverse Claim (other than Permitted Liens); (ii) the Holdco Guarantee or any security interest granted pursuant to the Holdco Guarantee shall for any reason cease to create, or for any reason cease to be, a valid and enforceable first priority perfected security interest in favor of the Administrative Agent with respect to the Guarantor Collateral, free and clear of any Adverse Claim (other than Permitted Liens); (iii) the EMEA Guaranty and Pledge Agreement or any security interest granted pursuant to the EMEA Guaranty and Pledge Agreement Guarantee shall for any reason (other than in accordance with its


 
49 US-DOCS\137537506.9 terms) cease to create, or for any reason cease to be, a valid and enforceable first priority perfected security interest in favor of the Administrative Agent with respect to the EMEA Guarantor Collateral; or (iv) the EMEA Dutch Pledge or any security interest granted pursuant to the EMEA Dutch Pledge shall for any reason (other than in accordance with its terms) cease to create, or for any reason cease to be, a valid and enforceable first priority perfected security interest in favor of the Administrative Agent with respect to the collateral thereunder; (l) an Event of Bankruptcy shall occur with respect to any Bird Transaction Party; (m) a Change in Control shall occur; (n) either (i) the Internal Revenue Service shall file notice of a lien (other than Permitted Liens) pursuant to Section 6323 of the Code with regard to any assets of any Bird Transaction Party or (ii) the PBGC shall, or shall indicate its intention to, file notice of a lien pursuant to Section 303(k) or 4068 of ERISA with regard to any of the assets of any Bird Transaction Party; (o) (i) the occurrence of a Reportable Event; (ii) the adoption of an amendment to a Pension Plan that would require the provision of security pursuant to Section 401(a)(29) of the Code; (iii) the existence with respect to any Multiemployer Plan of an “accumulated funding deficiency” (as defined in Section 431 of the Code or Section 304 of ERISA), whether or not waived; (iv) the failure to satisfy the minimum funding standard under Section 412 of the Code with respect to any Pension Plan (v) the incurrence of any liability under Title IV of ERISA with respect to the termination of any Pension Plan or the withdrawal or partial withdrawal of any Bird Transaction Party or any of their respective ERISA Affiliates from any Multiemployer Plan; (vi) the receipt by any Bird Transaction Party or any of their respective ERISA Affiliates from the PBGC or any plan administrator of any notice relating to the intention to terminate any Pension Plan or Multiemployer Plan or to appoint a trustee to administer any Pension Plan or Multiemployer Plan; (vii) the receipt by any Bird Transaction Party or any of their respective ERISA Affiliates of any notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of Title IV of ERISA; (viii) the occurrence of a prohibited transaction with respect to any Bird Transaction Party or any of their respective ERISA Affiliates (pursuant to Section 4975 of the Code); or (ix) the occurrence or existence of any other similar event or condition with respect to a Pension Plan or a Multiemployer Plan, with respect to each of clause (i) through (ix), either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect; (p) a Material Adverse Effect shall occur with respect to any Bird Transaction Party; (q) any Credit Party shall (i) be required to register as an “investment company” within the meaning of the Investment Company Act or (ii) become a “covered fund” within the meaning of the Volcker Rule; (r) any material provision of this Agreement or any other Transaction Document shall cease to be in full force and effect or any Bird Transaction Party (or any of their respective Affiliates) shall so state in writing; (s) one or more judgments or decrees shall be entered against any Credit Party involving in the aggregate a liability (not paid or to the extent not covered by a reputable and solvent insurance company) and such judgments and decrees either shall be final and non-appealable or shall not be vacated, discharged or stayed or bonded pending appeal for any period of forty-five (45) consecutive days, and the aggregate amount of all such judgments equals or exceeds $5,000,000; 50 US-DOCS\137537506.9 (t) the Parent Guaranty is terminated or ceases to be in full force and effect for any reason (other than in accordance with its terms or as otherwise expressly permitted in the Transaction Documents) or the Parent fails to observe or perform any covenant specified in the Parent Guaranty or a proceeding shall be commenced by the Parent to establish the invalidity or unenforceability of the Parent Guarantee; (u) [reserved]; (v) any of the Bird Transaction Parties shall fail to comply with any of the covenants (and the timeframes for compliance therewith) set forth in Section 8.01(aa); or (w) Bird Global shall (i) fail to make any payment beyond the applicable grace period, if any, whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise, in respect of the Notes issued under the Note Purchase Agreement, or (ii) fail to observe or perform any other agreement or condition under the Note Documents, or any other event occurs, the effect of which failure or other event is to cause, or to permit the holder or holders of the Notes or the Note Collateral Agent to cause, with the giving of notice if required, the Obligations (as defined in the Note Purchase Agreement) to become due and payable (automatically or otherwise) prior to their stated maturity; in each case, regardless of whether any such failure or default is remedied or waived; then, and in any such event, the Administrative Agent may (or, at the direction of the Lenders shall) by notice to the Borrower declare (x) the Commitment Termination Date to have occurred, (y) the Final Maturity Date to have occurred and (z) all Borrower Obligations to be immediately due and payable; provided, that automatically upon the occurrence of any event (without any requirement for the giving of notice) described in subsection (l) of this Section 10.01 with respect to the Borrower, the Commitment Termination Date and the Final Maturity Date shall occur and all Borrower Obligations shall be immediately due and payable. Upon any such declaration or designation or upon such automatic termination, the Administrative Agent and the other Secured Parties shall have, in addition to the rights and remedies which they may have under this Agreement and the other Transaction Documents, all other rights and remedies provided after default under the UCC and under other Applicable Law, which rights and remedies shall be cumulative. Any proceeds from liquidation of the Collateral shall be applied in the order of priority set forth in Section 4.01. SECTION 10.02. Scooter IP. Without limiting any other rights of the Administrative Agent hereunder, for the purpose of enabling the Administrative Agent to exercise rights and remedies under this Agreement, solely during and for the continuation of an Event of Default, Borrower hereby grants to the Administrative Agent, for the benefit of the Secured Parties, an irrevocable, nonexclusive license (exercisable without payment of royalty or other compensation to the Borrower) to use, license, or sublicense any Scooter IP now owned or licensed or hereafter acquired or licensed by the Borrower, in each case solely to the extent reasonably necessary to permit the Administrative Agent to take possession of and dispose of the Scooters, and wherever the same may be located (whether or not any license agreement by and between the Borrower and any other Person relating to the use of such Scooter IP may be terminated hereafter), provided, however, that any such license granted by the Administrative Agent to a third party shall include reasonable and customary terms necessary to preserve the existence, validity and value of the affected Scooter IP, including without limitation, provisions requiring the continuing confidential handling of proprietary information and trade secrets, requiring the use of appropriate notices and prohibiting the use of false notices, protecting and maintaining the quality standards of the trademarks (it being understood and agreed that, without limiting any other rights and remedies of the Administrative Agent under this Agreement or applicable law, nothing in the foregoing license grant shall be construed as granting the Administrative Agent rights in and to such Scooter IP above and beyond (x) the rights to such Scooter IP that the Borrower has reserved for itself and (y) in the case of Scooter IP that is licensed


 
51 US-DOCS\137537506.9 to Borrower by a third party, the extent to which the Borrower has the right to grant a sublicense to such Scooter IP hereunder). The Borrower shall deliver the Scooter IP to the Administrative Agent in a manner that will allow the Scooter IP to be operated and sold without requiring use of any proprietary source code. ARTICLE XI THE ADMINISTRATIVE AGENT SECTION 11.01. Appointment and Authorization. Each Lender hereby irrevocably appoints and authorizes the Administrative Agent to enter into each of the Transaction Documents to which it is a party (other than this Agreement) on its behalf and to take such actions as the Administrative Agent on its behalf and to exercise such powers under the Transaction Documents as are delegated to the Administrative Agent by the terms thereof, together with all such powers as are reasonably incidental thereto. Subject to the terms of Section 14.01 and to the terms of the other Transaction Documents, the Administrative Agent is authorized and empowered to amend, modify, or waive any provisions of this Agreement or the other Transaction Documents on behalf of Lenders. Except for Sections 11.09, 11.12, and 11.14 the provisions of this Article XI are solely for the benefit of the Administrative Agent and Lenders and neither the Borrower nor any other Credit Party shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement, the Administrative Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for the Borrower or any other Credit Party. The Administrative Agent may perform any of its duties hereunder, or under the Transaction Documents, by or through its agents, servicers, trustees, investment managers or employees. SECTION 11.02. The Administrative Agent and Affiliates. The Administrative Agent shall have the same rights and powers under the Transaction Documents as any other Lender and may exercise or refrain from exercising the same as though it were not the Administrative Agent, and the Administrative Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Credit Party or Affiliate of any Credit Party as if it were not the Administrative Agent hereunder. SECTION 11.03. Action by the Administrative Agent. The duties of the Administrative Agent shall be mechanical and administrative in nature. The Administrative Agent shall not have by reason of this Agreement a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the Transaction Documents is intended to or shall be construed to impose upon the Administrative Agent any obligations in respect of this Agreement or any of the Transaction Documents except as expressly set forth herein or therein. SECTION 11.04. Consultation with Experts. The Administrative Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts. SECTION 11.05. Liability of the Administrative Agent. Neither the Administrative Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Transaction Documents, except that the Administrative Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither the 52 US-DOCS\137537506.9 Administrative Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Transaction Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Transaction Document; (c) the satisfaction of any condition specified in any Transaction Document; (d) the validity, effectiveness, sufficiency or genuineness of any Transaction Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Event of Default or Potential Event of Default; or (f) the financial condition of any Credit Party. The Administrative Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. The Administrative Agent shall not be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any Lender to whom payment was due but not made, shall be to recover from other Lenders any payment in excess of the amount to which they are determined to be entitled (and such other Lenders hereby agree to return to such Lender any such erroneous payments received by them). SECTION 11.06. Indemnification. Each Lender shall, in accordance with its pro rata share of the total unfunded Commitment and funded Loans hereunder, indemnify the Administrative Agent (to the extent not reimbursed by the Borrower) upon demand against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Administrative Agent’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction) that the Administrative Agent may suffer or incur in connection with the Transaction Documents or any action taken or omitted by the Administrative Agent hereunder or thereunder. If any indemnity furnished to the Administrative Agent for any purpose shall, in the opinion of the Administrative Agent, be insufficient or become impaired, the Administrative Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against even if so directed by the Lenders until such additional indemnity is furnished. SECTION 11.07. Right to Request and Act on Instructions. The Administrative Agent may at any time request instructions from Lenders with respect to any actions or approvals which by the terms of this Agreement or of any of the Transaction Documents the Administrative Agent is permitted or desires to take or to grant, and if such instructions are promptly requested, the Administrative Agent shall be absolutely entitled to refrain from taking any action or to withhold any approval and shall not be under any liability whatsoever to any Person for refraining from any action or withholding any approval under any of the Transaction Documents until it shall have received such instructions from the Lenders or all or such other portion of the Lenders as shall be prescribed by this Agreement. Without limiting the foregoing, no Lender shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or refraining from acting under this Agreement or any of the other Transaction Documents in accordance with the instructions of the Lenders (or all or such other portion of the Lenders as shall be prescribed by this Agreement) and, notwithstanding the instructions of the Lenders (or such other applicable portion of the Lenders), the Administrative Agent shall have no obligation to take any action if it believes, in good faith, that such action would violate Applicable Law or exposes the Administrative Agent to any liability for which it has not received satisfactory indemnification in accordance with the provisions of Section 11.06. SECTION 11.08. Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the


 
53 US-DOCS\137537506.9 Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking any action under the Transaction Documents. SECTION 11.09. Collateral Matters. The Lenders irrevocably authorize the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent under any Security Document (a) upon termination of the Loans and payment in full of all Borrower Obligations; or (b) constituting property sold or disposed of as part of or in connection with any disposition permitted under any Transaction Document, including pursuant to Section 8.01(s) (it being understood and agreed that the Administrative Agent may conclusively rely without further inquiry on a certificate of a Responsible Officer as to the sale or other disposition of property being made in full compliance with the provisions of the Transaction Documents). Upon request by the Administrative Agent at any time, Lenders will confirm the Administrative Agent’s authority to release particular types or items of Collateral pursuant to this Section 11.09. If the Administrative Agent receives Insurance Proceeds in respect of any Scooters, it shall deposit such amounts into the Collection Account for application in accordance with the Priority of Payments. If the Administrative Agent receives Insurance Proceeds in respect of any scooter vehicles other than the Scooters, or any asset that is not Collateral, it shall promptly transfer such Insurance Proceeds to the Parent. SECTION 11.10. Agency for Perfection. The Administrative Agent and each Lender hereby appoint each other Lender as agent for the purpose of perfecting the Administrative Agent’s security interest in assets which, in accordance with the Uniform Commercial Code in any applicable jurisdiction, can be perfected by possession or control. Should any Lender (other than the Administrative Agent) obtain possession or control of any such assets, such Lender shall notify the Administrative Agent thereof, and, promptly upon the Administrative Agent’s request therefor, shall deliver such assets to the Administrative Agent or in accordance with the Administrative Agent’s instructions or transfer control to the Administrative Agent in accordance with the Administrative Agent’s instructions. Each Lender agrees that it will not have any right individually to enforce or seek to enforce any security interest hereunder or to realize upon any Collateral for the Loans unless instructed to do so by the Administrative Agent (or consented to by the Administrative Agent), it being understood and agreed that such rights and remedies may be exercised only by the Administrative Agent. SECTION 11.11. Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Potential Event of Default or Event of Default except with respect to defaults in the payment of principal, interest and fees required to be paid to the Administrative Agent for the account of Lenders, unless the Administrative Agent shall have received written notice from a Lender or a Credit Party referring to this Agreement, describing such Potential Event Default or Event of Default and stating that such notice is a “notice of default”. The Administrative Agent will notify each Lender of its receipt of any such notice. The Administrative Agent shall take such action with respect to such Potential Event of Default or Event of Default as may be requested by the Lenders (or all or such other portion of the Lenders as shall be prescribed by this Agreement) in accordance with the terms hereof. Unless and until the Administrative Agent has received any such request, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Potential Event Default or Event of Default as it shall deem advisable or in the best interests of Lenders. SECTION 11.12. Assignment by the Administrative Agent; Resignation of the Administrative Agent; Successor the Administrative Agent. (a) The Administrative Agent may at any time assign its rights, powers, privileges and duties hereunder to (i) another Lender, or (ii) any Person to whom the Administrative Agent, in its 54 US-DOCS\137537506.9 capacity as a Lender, has assigned (or will assign, in conjunction with such assignment of agency rights hereunder) 50% or more of its Loans, in each case without the consent of the Lenders or the Borrower. Following any such assignment, the Administrative Agent shall give notice to the Lenders and the Borrower. An assignment by the Administrative Agent pursuant to this subsection (a) shall not be deemed a resignation by the Administrative Agent for purposes of subsection (b) below. (b) Without limiting the rights of the Administrative Agent to designate an assignee pursuant to subsection (a) above, the Administrative Agent may at any time give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation, the Lenders shall have the right to appoint a successor the Administrative Agent. If no such successor shall have been so appointed by the Lenders and shall have accepted such appointment within ten (10) Business Days after the retiring the Administrative Agent gives notice of its resignation, then the retiring the Administrative Agent may on behalf of the Lenders, appoint a successor the Administrative Agent; provided, however, that if the Administrative Agent shall notify the Borrower and the Lenders that no Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice from the Administrative Agent that no Person has accepted such appointment and, from and following delivery of such notice, (i) the retiring the Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Transaction Documents, and (ii) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time as the Lenders appoint a successor the Administrative Agent as provided for above in this paragraph. (c) Upon (i) an assignment permitted by subsection (a) above, or (ii) the acceptance of a successor’s appointment as the Administrative Agent pursuant to subsection (b) above, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) the Administrative Agent, and the retiring the Administrative Agent shall be discharged from all of its duties and obligations hereunder and under the other Transaction Documents (if not already discharged therefrom as provided above in this paragraph). The fees payable by the Borrower to a successor the Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring the Administrative Agent’s resignation hereunder and under the other Transaction Documents, the provisions of this Article and Section 11.12 shall continue in effect for the benefit of such retiring the Administrative Agent and its sub- agents in respect of any actions taken or omitted to be taken by any of them while the retiring the Administrative Agent was acting or was continuing to act as the Administrative Agent. SECTION 11.13. Payment and Sharing of Payment. (a) On the date of any Credit Extension, the Administrative Agent, on behalf of Lenders, may elect to advance to the Borrower the full amount of the Loan to be made on such date prior to receiving funds from Lenders, in reliance upon each Lender’s commitment to make its Loan Commitment Percentage of the applicable Loan to the Borrower in a timely manner on such date. If the Administrative Agent elects to advance the applicable Loan to the Borrower in such manner, the Administrative Agent shall be entitled to receive all interest that accrues on the date of any such Credit Extension on each Lender’s Loan Commitment Percentage of the applicable Loan unless the Administrative Agent receives such Lender’s Loan Commitment Percentage of the applicable Loan before 3:00 p.m. (Eastern time) on the date of any such Credit Extension. (b) It is understood that for purposes of advances to the Borrower made pursuant to this Section 11.13, the Administrative Agent will be using the funds of the Administrative Agent, and pending settlement, all interest accruing on such advances shall be payable to the Administrative Agent.


 
55 US-DOCS\137537506.9 (c) The provisions of this Section 11.13 shall be deemed to be binding upon the Administrative Agent and Lenders notwithstanding the occurrence of any Potential Event of Default or Event of Default, or any insolvency or bankruptcy proceeding pertaining to the Borrower or any other Credit Party. SECTION 11.14. Loan Payments. Payments of principal, interest and fees in respect of the Loans will be settled on the date of receipt if received by the Administrative Agent on the last Business Day of a month or on the Business Day immediately following the date of receipt if received on any day other than the last Business Day of a month. SECTION 11.15. Return of Payments. (a) If the Administrative Agent pays an amount to a Lender under this Agreement in the belief or expectation that a related payment has been or will be received by the Administrative Agent from the Borrower and such related payment is not received by the Administrative Agent, then the Administrative Agent will be entitled to recover such amount from such Lender on demand without setoff, counterclaim or deduction of any kind, together with interest accruing on a daily basis at the Federal Funds Rate. (b) If the Administrative Agent determines at any time that any amount received by the Administrative Agent under this Agreement must be returned to the Borrower or paid to any other Person pursuant to any insolvency law or otherwise, then, notwithstanding any other term or condition of this Agreement or any other Transaction Document, the Administrative Agent will not be required to distribute any portion thereof to any Lender. In addition, each Lender will repay to the Administrative Agent on demand any portion of such amount that the Administrative Agent has distributed to such Lender, together with interest at such rate, if any, as the Administrative Agent is required to pay to the Borrower or such other Person, without setoff, counterclaim or deduction of any kind. SECTION 11.16. Sharing of Payments. If any Lender shall obtain any payment or other recovery (whether voluntary, involuntary, by application of setoff or otherwise) on account of the Loans (other than pursuant to the terms of Section 5.03(e)) in excess of its pro rata share of the total funded Loans hereunder of payments entitled pursuant to the other provisions of this Section 11.16, such Lender shall purchase from the other Lenders such participations in extensions of credit made by such other Lenders (without recourse, representation or warranty) as shall be necessary to cause such purchasing Lender to share the excess payment or other recovery ratably with each of them; provided, however, that if all or any portion of the excess payment or other recovery is thereafter required to be returned or otherwise recovered from such purchasing Lender, such portion of such purchase shall be rescinded and each Lender which has sold a participation to the purchasing Lender shall repay to the purchasing Lender the purchase price to the ratable extent of such return or recovery, without interest. The Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 11.16 may, to the fullest extent permitted by law, exercise all its rights of payment (including pursuant to Section 14.16) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation). If under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section 11.16 applies, such Lender shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 11.16 to share in the benefits of any recovery on such secured claim. SECTION 11.17. Right to Perform, Preserve, and Protect. If any Credit Party fails to perform any obligation hereunder or under any other Transaction Document, the Administrative Agent itself may, but shall not be obligated to, cause such obligation to be performed at the Borrower’s expense. The 56 US-DOCS\137537506.9 Administrative Agent is further authorized by the Borrower and the Lenders to make expenditures from time to time which the Administrative Agent, in its reasonable business judgment, deems necessary or desirable to (a) preserve or protect the business conducted by the Borrower, the Collateral, or any portion thereof, and/or (b) enhance the likelihood of, or maximize the amount of, repayment of the Loans and other Borrower Obligations. The Borrower hereby agrees to reimburse the Administrative Agent on demand for any and all costs, liabilities and obligations incurred by the Administrative Agent pursuant to this Section 11.17. Each Lender hereby agrees to indemnify the Administrative Agent upon demand for any and all costs, liabilities and obligations incurred by the Administrative Agent pursuant to this Section 11.17, in accordance with the provisions of Section 11.06. ARTICLE XII [RESERVED] ARTICLE XIII INDEMNIFICATION SECTION 13.01. Indemnities by the Borrower. (a) Without limiting any other rights that the Administrative Agent, the Lenders, the Affected Persons and their respective assigns, officers, directors, agents and employees (each, a “Borrower Indemnified Party”) may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify each Borrower Indemnified Party from and against any and all claims, losses and liabilities (including Attorney Costs (excluding the allocated costs of in house counsel and limited to not more than one firm of counsel for all such Borrower Indemnified Parties, taken as a whole, and, if necessary, a single local firm of counsel in each appropriate jurisdiction for all such Borrower Indemnified Parties, taken as a whole (and, in the case of an actual or perceived conflict of interest, of another firm of counsel for such affected Borrower Indemnified Party)) (all of the foregoing being collectively referred to as “Borrower Indemnified Amounts”) arising out of or resulting from this Agreement or any other Transaction Document or the use of proceeds of the Loans or the security interest in respect of any of the Collateral; excluding, however, (i) Borrower Indemnified Amounts to the extent a final non-appealable judgment of a court of competent jurisdiction holds that such Borrower Indemnified Amounts resulted solely from the fraud, gross negligence or willful misconduct by the Borrower Indemnified Party seeking indemnification and (ii) Borrower Indemnified Amounts to the extent arising from a claim, action, litigation, investigation, or other proceeding that does not arise from any act or omission by any Bird Transaction Party or any officer, partner, director, trustee, employee, or agent of any Bird Transaction Party and that is brought by any Borrower Indemnified Party against another Borrower Indemnified Party (other than any such claim, action, litigation, investigation, or other proceeding brought against the Administrative Agent in its capacity as such). (b) [Reserved]. (c) If for any reason the foregoing indemnification is unavailable to any Borrower Indemnified Party or insufficient to hold it harmless, then the Borrower shall contribute to such Borrower Indemnified Party the amount paid or payable by such Borrower Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of the Borrower and its Affiliates on the one hand and such Borrower Indemnified Party on the other hand in the matters contemplated by this Agreement as well as the relative fault of the Borrower and its Affiliates and such Borrower Indemnified Party with respect to such loss, claim, damage or liability and any other relevant equitable considerations. The reimbursement, indemnity and contribution


 
57 US-DOCS\137537506.9 obligations of the Borrower under this Section shall be in addition to any liability which the Borrower may otherwise have, shall extend upon the same terms and conditions to each Borrower Indemnified Party, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Borrower and the Borrower Indemnified Parties. (d) Any indemnification or contribution under this Section shall survive the termination of this Agreement. For the avoidance of doubt, the indemnity provided pursuant to this Section 13.01 and Section 14.04 shall not apply to claims for Indemnified Taxes or Excluded Taxes. ARTICLE XIV MISCELLANEOUS SECTION 14.01. Amendments, Etc. (a) No failure on the part of any Lender or the Administrative Agent to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. No amendment or waiver of any provision of this Agreement or consent to any departure by any of the Borrower or any Affiliate thereof shall be effective unless in a writing signed by the Administrative Agent and all of the Lenders (and, in the case of any amendment, also signed by the Credit Parties), and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. (b) Notwithstanding anything to the contrary in this Agreement or any other Transaction Document, the Administrative Agent may, without the consent of any Lender or Credit Party, enter into amendments or modifications to this Agreement or any of the other Transaction Documents in order to implement any replacement of Term SOFR as contemplated in the definition thereof or any Term SOFR Replacement Conforming Changes or otherwise effectuate the terms of this Section 14.01 in accordance with the terms of this Section 14.01. SECTION 14.02. Notices, Etc. All notices and other communications hereunder shall, unless otherwise stated herein, be in writing (which shall include facsimile and email communication) and faxed, emailed or delivered, to each party hereto, at its address set forth under its name on Schedule V hereto or at such other address, facsimile number or email address as shall be designated by such party in a written notice to the other parties hereto. Notices and communications by facsimile or email shall be effective when sent receipt confirmed by electronic or other means (such as by the “return receipt requested” function, as available, return electronic mail or other acknowledgement), and notices and communications sent by other means shall be effective when received. SECTION 14.03. Assignability; Addition of Lenders. (a) Assignment by Lenders. Each Lender may assign to any Eligible Assignee or to any other Lender (other than a Disqualified Institution) all or a portion of its rights and obligations under this Agreement (including, but not limited to, (A) all or a portion of its unfunded Commitment hereunder without the necessity of transferring any portion of any Loan funded by such Lender or other obligations owed to it hereunder, or (B) all or a portion of any Loan funded by such Lender or other obligations owed to it hereunder without the necessity of transferring any portion of its unfunded Commitment hereunder); provided, however, that 58 US-DOCS\137537506.9 (i) except for an assignment by a Lender to either an Affiliate of such Lender or any other Lender, each such assignment shall require the prior written consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed); provided, that such consent shall be deemed to be given if the Borrower does not respond within five (5) Business Days of a request for consent; and provided, further, that such consent shall not be required if an Event of Default has occurred and is continuing; (ii) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement; and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance Agreement. Upon such execution, delivery, acceptance and recording from and after the effective date specified in such Assignment and Acceptance Agreement, (x) the assignee thereunder shall be a party to this Agreement, and to the extent that rights and obligations under this Agreement have been assigned to it pursuant to such Assignment and Acceptance Agreement, have the rights and obligations of a Lender hereunder and (y) the assigning Lender shall, to the extent that rights and obligations have been assigned by it pursuant to such Assignment and Acceptance Agreement, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). (b) Register. The Administrative Agent shall, acting solely for this purpose as an agent of the Borrower, maintain at its address referred to on Schedule V of this Agreement (or such other address of the Administrative Agent notified by the Administrative Agent to the other parties hereto) a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders, the Commitment of each Lender and the aggregate outstanding principal amount (and stated interest) of the Loans of each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Credit Parties, the Administrative Agent, and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms of this Agreement as a Lender under this Agreement for all purposes of this Agreement. The Register shall be available for inspection by the Credit Parties or any Lender at any reasonable time and from time to time upon reasonable prior notice. (c) Procedure. Upon its receipt of an Assignment and Acceptance Agreement executed and delivered by an assigning Lender and an Eligible Assignee or assignee Lender, the Administrative Agent shall, if such Assignment and Acceptance Agreement has been duly completed, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Credit Parties. (d) Participations. Each Lender may sell participations to one or more Eligible Assignees (each, a “Participant”) in or to all or a portion of its rights and/or obligations under this Agreement (including, without limitation, all or a portion of its Commitment or the interests in the Loans owned by it); provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, and


 
59 US-DOCS\137537506.9 (ii) such Lender shall remain solely responsible to the other parties to this Agreement for the performance of such obligations. The Administrative Agent, the Lenders, and the Credit Parties shall have the right to continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. The Credit Parties agree that each Participant shall be entitled to the benefits of Sections 5.01 and 5.03 (subject to the requirements and limitations therein, including the requirements under Section 5.03(f) (it being understood that the documentation required under Section 5.03(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided, that such Participant shall not be entitled to receive any greater payment under Section 5.01 or 5.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. (e) Participant Register. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Credit Parties, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided, that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans or its other obligations under any this Agreement) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (f) Assignments by Administrative Agent. This Agreement and the rights and obligations of the Administrative Agent herein shall be assignable by the Administrative Agent and its successors and assigns; provided, that (i) the Administrative Agent may not assign to a Disqualified Institution and (ii) in the case of an assignment to a Person that is not an Affiliate of the Administrative Agent or a Lender, so long as no Event of Default has occurred and is continuing, such assignment shall require the Credit Parties’ consent (not to be unreasonably withheld, conditioned or delayed). (g) Assignments by the Credit Parties. The Credit Parties may not assign any of their respective rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and each Lender (such consent to be provided or withheld in the sole discretion of such Person). (h) Pledge to Secure Obligations of Lender. Notwithstanding anything to the contrary set forth herein, any Lender or any of their respective Affiliates may at any time pledge or grant a security interest in all or any portion of its interest in, to and under this Agreement and any other Transaction Document to secure obligations of such Lender to any Person providing any extension of credit or financial arrangement to or for the account of such Lender or any of its Affiliates and any agent, trustee, or representative of such Person (without notice to or the consent of the Credit Parties, any other Lender, or the Administrative Agent); provided, that no such pledge shall relieve such Lender of its obligations under this Agreement or substitute any such pledgee for such Lender as a party hereto. 60 US-DOCS\137537506.9 SECTION 14.04. Costs and Expenses. In addition to the rights of indemnification granted under Section 13.01 hereof, the Credit Parties agree to pay on demand all reasonable and documented out- of-pocket costs and expenses in connection with the preparation, negotiation, execution, delivery and administration of this Agreement and the other Transaction Documents (together with all amendments, restatements, supplements, consents and waivers, if any, from time to time hereto and thereto), including, without limitation, (i) the reasonable and documented out-of-pocket Attorney Costs for the Administrative Agent and the Lenders and any of their respective Affiliates with respect thereto and with respect to advising the Administrative Agent and the Lenders and their respective Affiliates as to their rights and remedies under this Agreement and the other Transaction Documents and (ii) reasonable and documented out-of-pocket accountants’, auditors’ and consultants’ fees and expenses for the Administrative Agent and the Lenders and any of their respective Affiliates incurred in connection with the administration and maintenance of this Agreement or advising the Administrative Agent or any Lender as to their rights and remedies under this Agreement or as to any actual or reasonably claimed breach of this Agreement or any other Transaction Document. In addition, the Borrower agrees to pay on demand all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented Attorney Costs), of the Administrative Agent and the Lenders and their respective Affiliates, incurred in connection with the enforcement of any of their respective rights or remedies under the provisions of this Agreement and the other Transaction Documents. SECTION 14.05. Invoices for Indemnified Amounts. To the extent invoiced to the Borrower at least seven (7) Business Days prior to a Payment Date, any indemnification amounts under this Agreement shall be paid pursuant to the Priority of Payments on such Payment Date (it being agreed and understood, for the avoidance of doubt, that if any such amount is invoiced less than seven (7) Business Days prior to a Payment Date, such amount shall be paid on the next Payment Date). SECTION 14.06. Confidentiality. (a) Each of the Credit Parties covenants and agrees to hold in confidence, and not disclose to any Person, the terms of this Agreement or the Fee Letter (including any fees payable in connection with this Agreement, the Fee Letter or any other Transaction Document or the identity of the Administrative Agent or any Lender), except as the Administrative Agent and each Lender may have consented to in writing prior to any proposed disclosure; provided, however, that it may disclose such information (i) to its Advisors and Representatives, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through the Credit Parties, the Parent or their Advisors and Representatives, (iii) to the extent it should be (A) required by Applicable Law, or in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that in the case of clause (iii) above, the Credit Parties will use reasonable efforts to maintain confidentiality and will (unless otherwise prohibited by Applicable Law) notify the Administrative Agent and the affected Lender of their intention to make any such disclosure prior to making such disclosure, or (iv) to the parties to the Note Documents and their Advisors and Representatives. Each of the Credit Parties agrees to be responsible for any breach of this Section by its Representatives and Advisors and agrees that its Representatives and Advisors will be advised by it of the confidential nature of such information and shall agree to comply with this Section. Notwithstanding the foregoing, it is expressly agreed that each of the Credit Parties and their respective Affiliates may publish a press release or otherwise publicly announce the existence and principal amount of the Commitments under this Agreement and the transactions contemplated hereby; provided, that the Administrative Agent and the Lenders shall be provided a reasonable opportunity to review such press release or other public announcement prior to its release and provide comment thereon; and provided, further, that no such press release shall name or otherwise identify the Administrative Agent, any Lender, or any of their respective Affiliates without such Person’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, the Borrower consents to the publication by the


 
61 US-DOCS\137537506.9 Administrative Agent, or any Lender of a tombstone or similar advertising material relating to the financing transactions contemplated by this Agreement. (b) Each of the Administrative Agent and each Lender, severally and with respect to itself only, agrees to hold in confidence, and not disclose to any Person, any confidential and proprietary information concerning the Credit Parties and their respective Affiliates and their businesses or the terms of this Agreement (including any fees payable in connection with this Agreement or the other Transaction Documents), except as the Credit Parties may have consented to in writing prior to any proposed disclosure; provided, however, that it may disclose such information (i) to its Advisors and Representatives, (ii) to its assignees and Participants and potential assignees and Participants and their respective counsel if they agree in writing to hold it confidential, (iii) to the extent such information has become available to the public other than as a result of a disclosure by or through it or its Representatives or Advisors, (iv) at the request of a bank examiner or other regulatory authority or in connection with an examination of any of the Administrative Agent or any Lender or their respective Affiliates or (v) to the extent it should be (A) required by Applicable Law, or in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that in the case of clause (v) above, the Administrative Agent and each Lender will use reasonable efforts to maintain confidentiality and will (unless otherwise prohibited by Applicable Law) notify the Credit Parties of its making any such disclosure as promptly as reasonably practicable thereafter. Each of the Administrative Agent and each Lender, severally and with respect to itself only, agrees to be responsible for any breach of this Section by its Representatives and Advisors and agrees that its Representatives and Advisors will be advised by it of the confidential nature of such information and shall agree to comply with this Section. (c) As used in this Section, (i) “Advisors” means, with respect to any Person, such Person’s accountants, attorneys and other confidential advisors and (ii) “Representatives” means, with respect to any Person, such Person’s Affiliates, Subsidiaries, directors, managers, officers, employees, members, investors, financing sources, insurers, professional advisors, representatives and agents; provided, that such Persons shall not be deemed to Representatives of a Person unless (and solely to the extent that) confidential information is furnished to such Person. (d) Notwithstanding the foregoing, to the extent not inconsistent with applicable securities laws, each party hereto (and each of its employees, representatives or other agents) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure (as defined in Section 1.6011-4 of the Treasury Regulations) of the transactions contemplated by the Transaction Documents and all materials of any kind (including opinions or other tax analyses) that are provided to such Person relating to such tax treatment and tax structure. SECTION 14.07. GOVERNING LAW. THIS AGREEMENT, INCLUDING THE RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5- 1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICTS OF LAW PROVISIONS THEREOF, EXCEPT TO THE EXTENT THAT THE PERFECTION, THE EFFECT OF PERFECTION OR PRIORITY OF THE INTERESTS OF ADMINISTRATIVE AGENT OR ANY LENDER IN THE COLLATERAL IS GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK). SECTION 14.08. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. Execution of any such counterpart may be by means of (a) an electronic signature) that complies with the federal Electronic Signatures in Global and 62 US-DOCS\137537506.9 National Commerce Act, state enactments of the Uniform Electronic Transactions Act, or any other relevant and applicable electronic signatures law; (b) an original manual signature; or (c) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. The Administrative Agent reserves the right, in its sole discretion, to accept, deny, or condition acceptance of any electronic signature on this Agreement or other Transaction Document. The foregoing shall apply to each other Transaction Document, and any notice delivered hereunder or thereunder, mutatis mutandis. SECTION 14.09. Integration; Binding Effect; Survival of Termination. This Agreement and the other Transaction Documents contain the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof superseding all prior oral or written understandings. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms and shall remain in full force and effect until the Final Payout Date; provided, however, that the provisions of Sections 5.01, 5.02, 5.03, Article XI, 13.01, 13.02, 14.04, 14.05, 14.06, 14.09, 14.11 and 14.13 shall survive any termination of this Agreement. SECTION 14.10. CONSENT TO JURISDICTION. (a) EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO (I) WITH RESPECT TO THE CREDIT PARTIES, THE EXCLUSIVE JURISDICTION, AND (II) WITH RESPECT TO EACH OF THE OTHER PARTIES HERETO, THE NON-EXCLUSIVE JURISDICTION, IN EACH CASE, OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN NEW YORK CITY, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, AND EACH PARTY HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING (I) IF BROUGHT BY THE CREDIT PARTIES OR ANY AFFILIATE THEREOF, SHALL BE HEARD AND DETERMINED, AND (II) IF BROUGHT BY ANY OTHER PARTY TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, MAY BE HEARD AND DETERMINED, IN EACH CASE, IN SUCH NEW YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. NOTHING IN THIS SECTION 14.10 SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY OTHER CREDIT PARTY TO BRING ANY ACTION OR PROCEEDING AGAINST ANY CREDIT PARTY OR ANY OF THEIR RESPECTIVE PROPERTY IN THE COURTS OF OTHER JURISDICTIONS. EACH CREDIT PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING. THE PARTIES HERETO AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. (b) EACH OF THE CREDIT PARTIES CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO IT AT ITS ADDRESS SPECIFIED IN SECTION 14.02. NOTHING IN THIS SECTION 14.10 SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY OTHER CREDIT PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.


 
63 US-DOCS\137537506.9 SECTION 14.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT. SECTION 14.12. Ratable Payments. If any Lender, whether by setoff or otherwise, has payment made to it with respect to any Borrower Obligations in a greater proportion than that received by any other Lender entitled to receive a ratable share of such Borrower Obligations, such Lender agrees, promptly upon demand, to purchase for cash without recourse or warranty a portion of such Borrower Obligations held by the other Lenders so that after such purchase each Lender will hold its ratable proportion of such Borrower Obligations; provided, that if all or any portion of such excess amount is thereafter recovered from such Lender, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest. SECTION 14.13. Limitation of Liability. (a) No claim may be made by the Borrower or any Affiliate thereof or any other Person against any Lender, the Administrative Agent, or their respective Affiliates, members, directors, officers, employees, incorporators, attorneys or agents for any special, indirect, consequential or punitive damages in respect of any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement or any other Transaction Document, or any act, omission or event occurring in connection herewith or therewith; and each of the Credit Parties hereby waives, releases, and agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor. None of the Lenders, the Administrative Agent, and their respective Affiliates shall have any liability to the Borrower or any Affiliate thereof or any other Person asserting claims on behalf of or in right of the Borrower or any Affiliate thereof in connection with or as a result of this Agreement or any other Transaction Document or the transactions contemplated hereby or thereby, except to the extent that any losses, claims, damages, liabilities or expenses incurred by the Credit Parties or any Affiliate thereof result from the breach of contract, gross negligence or willful misconduct of such Lender or the Administrative Agent or any of their respective Affiliates in performing its duties and obligations hereunder and under the other Transaction Documents to which it is a party. (b) No claim may be made by the Administrative Agent, any Lender, or any Affiliate thereof or any other Person against any Bird Transaction Party, or their respective Affiliates, members, directors, officers, employees, incorporators, attorneys or agents for any special, indirect, consequential or punitive damages in respect of any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement or any other Transaction Document, or any act, omission or event occurring in connection herewith or therewith; and each of the Administrative Agent and each Lender hereby waives, releases, and agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor. None of the Bird Transaction Parties, and their respective Affiliates shall have any liability to the Administrative Agent, any Lender or any Affiliate thereof or any other Person asserting claims on behalf of or in right of the Borrower or any Affiliate thereof in connection with or as a result of this Agreement or any other Transaction Document or the transactions contemplated hereby or thereby, except to the extent that any losses, claims, damages, liabilities or expenses incurred by the Administrative Agent, such Lender, or any Affiliate thereof result from the breach of contract, gross negligence or willful misconduct of such Bird Party or Affiliate in performing its duties and obligations hereunder and under the other Transaction Documents to which it is a party. 64 US-DOCS\137537506.9 (c) The obligations of the Administrative Agent, each Lender and each Credit Party under this Agreement and each of the Transaction Documents are solely the corporate obligations of such Person. No recourse shall be had for any obligation or claim arising out of or based upon this Agreement or any other Transaction Document against any member, director, officer, employee or incorporator of any such Person. SECTION 14.14. Intent of the Parties. The Borrower has structured this Agreement with the intention that the Loans and the obligations of the Borrower hereunder will be treated under United States federal, and applicable state, local and foreign tax law as debt (the “Intended Tax Treatment”). The Borrower, the Lenders, and the Administrative Agent agree to file no tax return, or take any action, inconsistent with the Intended Tax Treatment unless required by law. Each assignee and each Participant acquiring an interest in a Credit Extension, by its acceptance of such assignment or participation, agrees to comply with the immediately preceding sentence. SECTION 14.15. USA Patriot Act. Each of the Administrative Agent and each of the Lenders hereby notifies the Credit Parties that pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “PATRIOT Act”), the Administrative Agent and the Lenders may be required to obtain, verify and record information that identifies the Credit Parties and the Parent, which information includes the name, address, tax identification number and other information regarding the Credit Parties and the Parent that will allow the Administrative Agent and the Lenders to identify the Credit Parties and the Parent in accordance with the PATRIOT Act. This notice is given in accordance with the requirements of the PATRIOT Act. Each of the Credit Parties agrees to provide the Administrative Agent and each Lender, from time to time, with all documentation and other information required by bank regulatory authorities under “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act. SECTION 14.16. Right of Setoff. Each Lender is hereby authorized (in addition to any other rights it may have), at any time during the continuance of an Event of Default, to setoff, appropriate and apply (without presentment, demand, protest or other notice which are hereby expressly waived) any deposits and any other indebtedness held or owing by such Lender (including by any branches or agencies of such Lender) to, or for the account of, the Borrower against amounts owing by the Borrower hereunder (even if contingent or unmatured); provided, that such Lender shall notify the Borrower promptly following such setoff. SECTION 14.17. Severability. Any provisions of this Agreement which are 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. SECTION 14.18. Mutual Negotiations. This Agreement and the other Transaction Documents are the product of mutual negotiations by the parties thereto and their counsel, and no party shall be deemed the draftsperson of this Agreement or any other Transaction Document or any provision hereof or thereof or to have provided the same. Accordingly, in the event of any inconsistency or ambiguity of any provision of this Agreement or any other Transaction Document, such inconsistency or ambiguity shall not be interpreted against any party because of such party’s involvement in the drafting thereof. SECTION 14.19. Captions and Cross References. The various captions (including the table of contents) in this Agreement are provided solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement. Unless otherwise indicated, references in this Agreement to any Section, Schedule or Exhibit are to such Section Schedule or Exhibit to this


 
65 US-DOCS\137537506.9 Agreement, as the case may be, and references in any Section, subsection, or clause to any subsection, clause or subclause are to such subsection, clause or subclause of such Section, subsection or clause. [Signature Pages Follow] [Signature Page to Loan and Security Agreement] IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written. BIRD US OPCO, LLC, as Borrower By: Name: Title: BIRD US HOLDCO, LLC, as Holdco Guarantor By: Name: Title:


 
[Signature Page to Loan and Security Agreement] MIDCAP FINANCIAL TRUST , as Administrative Agent By: Apollo Capital Management, L.P., its investment manager By: Apollo Capital Management, GP, LLC, its general partner By: ___________________________________________ Name: Title: MIDCAP FINANCIAL TRUST , as a Lender By: Apollo Capital Management, L.P., its investment manager By: Apollo Capital Management, GP, LLC, its general partner By: ___________________________________________ Name: Title: [Signature Page to Loan and Security Agreement] APOLLO INVESTMENT CORPORATION, as a Lender By: Apollo Investment Management, L.P., its Investment Adviser By: ACC Management, LLC, its General Partner By: ___________________________________________ Name: Joseph D. Glatt Title: Vice President


 
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Execution Version US-DOCS\137537508.5 AMENDMENT NO. 4 TO MASTER SCOOTER OPERATING LEASE AND SERVICING AGREEMENT AMENDMENT NO. 4 TO MASTER SCOOTER OPERATING LEASE AND SERVICING AGREEMENT, dated as of December 30, 2022 (this “Agreement”), by and among Bird US Opco, LLC, a Delaware limited liability company, as lessor (in such capacity, the “Lessor”) and Bird Rides, Inc., a Delaware corporation, as a lessee (in such capacity, the “Lessee”) and as servicer (in such capacity as servicer, the “Servicer” and, together with the Lessor and the Lessee, the “Bird Lease Parties”). WHEREAS, reference is hereby made to (a) the Master Scooter Operating Lease and Servicing Agreement, dated as of April 27, 2021 (as amended by the Amendment No. 1 to Master Scooter Operating Lease and Servicing Agreement, dated as of October 12, 2021, the Amendment No. 2 to Master Scooter Operating Lease and Servicing Agreement, dated as of April 8, 2022, the Amendment No. 3 to Master Scooter Operating Lease and Servicing Agreement, dated as of October 7, 2022, and as further amended, restated, amended and restated, supplemented, or otherwise modified from time to time prior to the date hereof, the “Master Lease Agreement”), by and among the Lessor, the Lessee, and the Servicer and (b) the Loan and Security Agreement, dated as of April 27, 2021 (as amended by the First Amendment to Loan and Security Agreement, dated as of June 10, 2021, the Amendment No. 2 to Loan and Security Agreement, dated as of October 12, 2021, the Amendment No. 3 to Loan and Security Agreement dated as of April 8, 2022, the Amendment No. 4 to Loan and Security Agreement dated as of April 22, 2022, the Fifth Amendment to Loan and Security Agreement dated as of July 1, 2022, the Amendment No. 6 to Loan and Security Agreement dated as of October 7, 2022, and the Amendment No. 7 to Loan and Security Agreement dated as of December 19, 2022, and as further amended, restated, amended and restated, supplemented, or otherwise modified from time to time prior to the date hereof, the “Loan Agreement”), by and among the Lessor, Bird US Holdco, LLC, a Delaware limited liability company (“Holdco Guarantor”), the lenders from time to time party thereto, and MidCap Financial Trust, as administrative agent (in such capacity, the “Administrative Agent”); WHEREAS, the Lessor has entered into an Amendment No. 8 to Loan and Security Agreement, dated as of the date hereof (“Amendment No. 8”), by and among the Lessor, Holdco Guarantor, the lenders under the Loan Agreement as in effect immediately prior to the effectiveness of Amendment No. 8 (the “Existing Lenders”), each of the financial institutions party thereto as lender (together with Existing Lenders, collectively, the “Lenders”) and the Administrative Agent, which amends the Loan Agreement; WHEREAS, in connection with Amendment No. 8 and in accordance with Section 19 of the Master Lease Agreement, the Bird Lease Parties have agreed to amend the Master Lease Agreement as more fully set forth herein and subject to the terms and conditions set forth herein. NOW, THEREFORE, the parties hereto agree as follows: Section 1. Defined Terms; References. (a) Unless otherwise specifically defined herein, each term used herein which is defined in the Master Lease Agreement or the Loan Agreement, as applicable, has the meaning assigned to such term in the Amended Master Lease Agreement (as defined below) or the Amended Loan Agreement (as defined in Amendment No. 8), as applicable. The rules of construction and other interpretive provisions specified in Section 1.2 of the Amended Master Lease Agreement shall apply to this Agreement, including terms defined in the preamble and recitals hereto.


 
2 US-DOCS\137537508.5 (b) As used in this Agreement, the following terms have the meanings specified below: “Amended Master Lease Agreement” shall mean the Master Lease Agreement, as amended by this Agreement. “Amendment No. 4 Effective Date” shall have the meaning provided in Section 6 hereof. Section 2. Amendment. (a) Amended Master Lease Agreement. Pursuant to Section 19 of the Master Lease Agreement: (i) Each of the parties hereto agrees that, effective on the Amendment No. 4 Effective Date, the Master Lease Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text and stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double- underlined text and double-underlined text) as set forth in the pages of the Master Lease Agreement attached as Exhibit A hereto. (ii) Each of the parties hereto agrees that Exhibit B hereto sets forth a clean copy of the Amended Master Lease Agreement. (b) Schedules. Each of the parties hereto agrees that, effective on the Amendment No. 4 Effective Date, each of the schedules to the Master Lease Agreement is hereby amended and restated by deleting such schedule in its entirety and replacing such schedule with the schedule set forth on Exhibit A (as a marked copy) and Exhibit B (as a clean copy) hereto. Section 3. Effect of Agreement; Reaffirmation; Etc. Except as expressly set forth herein or in the Amended Master Lease Agreement, this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the Master Lease Agreement or under any other Transaction Document and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Master Lease Agreement or any other provision of the Master Lease Agreement or of any other Transaction Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Without limiting the foregoing, after giving effect to this Agreement, (a) each Bird Lease Party acknowledges and agrees that (x) each Transaction Document to which it is a party is hereby confirmed and ratified and shall remain in full force and effect according to its respective terms (in the case of the Master Lease Agreement, as amended hereby) and (y) the Amended Master Lease Agreement, and all of the Collateral (as defined in Section 2(b) of the Master Lease Agreement), does and in each case shall continue to, secure the payment and performance of all of the obligations and liabilities of the Lessee under the Master Lease Agreement, and hereby ratifies the security interests granted by it pursuant to the Master Lease Agreement, and (b) the Lessee hereby confirms, reaffirms, and ratifies its continuing unconditional obligations as a guarantor under the Parent Guaranty on the terms and conditions set forth in the Parent Guaranty. The parties hereto acknowledge and agree that the amendment of the Master Lease Agreement pursuant to this Agreement and all other Transaction Documents amended and/or executed and delivered in connection herewith shall not constitute a novation of the Master Lease Agreement and the other Transaction Documents as in effect prior to the Amendment No. 4 Effective Date. Section 4. Representations of the Lessee and the Servicer. The Lessee and the Servicer each hereby represents and warrants that:


 
3 US-DOCS\137537508.5 (a) the representations and warranties set forth in Section 7 of the Amended Master Lease Agreement shall be true and correct in all material respects on and as of the Amendment No. 4 Effective Date (after giving effect to this Agreement), with the same effect as though made on and as of such date (and deeming (x) this Agreement to be a “Transaction Document” for purposes of each such representation and warranty and (y) references in Section 7 of the Amended Master Lease Agreement to “this Agreement” to be references to the Amended Master Lease Agreement), it being understood and agreed that (i) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (ii) any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects (after giving effect to such qualification therein) on and as of the Amendment No. 4 Effective Date; and (b) no Potential Operating Lease Event of Default, Potential Servicer Default, Operating Lease Event of Default, or Servicer Default has occurred and is continuing. Section 5. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts) (including by facsimile or other electronic transmission (i.e., a “pdf” or “tif”)), each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile or electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Section 6. Conditions to Effectiveness of this Agreement. This Agreement shall become effective on the date (the “Amendment No. 4 Effective Date”) when each of the following conditions shall have been satisfied (or waived, as applicable) and, in connection with the foregoing, the execution (which may include telecopy or electronic transmission of a signed signature page of this Agreement) of this Agreement: (a) Amendment Documents. The Administrative Agent and the Bird Lease Parties shall have received copies of this Agreement, executed and delivered by each party thereto. (b) Amendment No. 8 Effective Date. The Amendment No. 8 Effective Date (as defined in Amendment No. 8) shall have occurred. Section 7. No Novation. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Master Lease Agreement or instruments securing the same, which shall remain in full force and effect, except to any extent modified hereby or by instruments executed concurrently herewith. Nothing implied in this Agreement or in any other document contemplated hereby shall discharge or release the Lien or priority of any Transaction Document or any other security therefor or otherwise be construed as a release or other discharge of any of the Bird Lease Parties under any Transaction Document from any of its obligations and liabilities as a borrower, guarantor or pledgor under any of the Transaction Documents, except, in each case, to any extent modified hereby.


 
4 US-DOCS\137537508.5 Section 8. Miscellaneous. Sections 14, 15 and 16 of the Loan Agreement are incorporated herein by reference and apply mutatis mutandis. Section 9. Transaction Document. This Agreement is a Transaction Document and all references to a “Transaction Document” in the Amended Master Lease Agreement or any other Transaction Document (including any such reference in any representation or warranty in the Amended Master Lease Agreement or any other Transaction Document) shall be deemed to include this Agreement. [signature pages follow]


 
[Signature Page to Amendment No. 4] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. Bird US Opco, LLC, as Lessor By: /s/ Shane Torchiana Name: Shane Torchiana Title: Chief Executive Officer Bird Rides, Inc., as Lessee and Servicer By: /s/ Shane Torchiana Name: Shane Torchiana Title: Chief Executive Officer


 
[Signature Page to Amendment No. 4] Acknowledged and Agreed: MIDCAP FINANCIAL TRUST, as the Administrative Agent By: Apollo Capital Management, L.P., its investment manager By: Apollo Capital Management, GP, LLC, its general partner By: /s/ Maurice Amsellem Name: Maurice Amsellem Title: Authorized Signatory


 
US-DOCS\137537508.5 Exhibit A Amended Master Lease Agreement [See attached.]


 
US-DOCS\137537508.5 Exhibit B Clean Copy of Amended Master Lease Agreement [See attached.]


 
US-DOCS\137537508.5 EXHIBIT A Conformed through: Amendment No. 1 to Master Scooter Operating Lease and Servicing Agreement dated as of October 12, 2021 Amendment No. 2 to Master Scooter Operating Lease and Servicing Agreement dated as of April 8, 2022 Amendment No. 3 to Master Scooter Operating Lease and Servicing Agreement dated as of October 7, 2022 Amendment No. 4 to Master Scooter Operating Lease and Servicing Agreement dated as of December 30, 2022 MASTER SCOOTER OPERATING LEASE AND SERVICING AGREEMENT Dated as of April 27, 2021 among BIRD US OPCO, LLC as Lessor, BIRD RIDES, INC. as a Lessee and Servicer


 
i US-DOCS\137537508.5 Table of Contents Page 1. DEFINITIONS AND CONSTRUCTION ....................................................................................... 1 1.1. Definitions ........................................................................................................................... 1 1.2. Construction ........................................................................................................................ 1 2. NATURE OF AGREEMENT .......................................................................................................... 3 2.1. Lease of Scooters ................................................................................................................ 5 2.2. Hell-or-High-Water Lease .................................................................................................. 6 3. TERM ............................................................................................................................................... 7 3.1. Scooter Lease Term ............................................................................................................ 7 3.2. Operating Lease Term ......................................................................................................... 7 4. RENT AND LEASE CHARGES ..................................................................................................... 7 4.1. Amortization Schedule ........................................................................................................ 7 4.2. Monthly Base Rent .............................................................................................................. 7 4.3. [Reserved] ........................................................................................................................... 7 4.4. Quarterly Rider Incentive / Contra Pay True-Up Amount .................................................. 7 4.5. Disposition .......................................................................................................................... 8 4.6. Tariff Rebate Amount ......................................................................................................... 8 4.7. Making of Payments ........................................................................................................... 8 4.8. Ordering and Delivery Expenses ........................................................................................ 8 5. SCOOTER OPERATIONAL COVENANTS ................................................................................. 8 5.1. NET LEASE ....................................................................................................................... 8 5.2. Collections. ....................................................................................................................... 10 5.3. Intellectual Property. ......................................................................................................... 10 5.4. Scooter Use ....................................................................................................................... 11 5.5. Non-Disturbance ............................................................................................................... 11 5.6. Manufacturer’s Warranties ............................................................................................... 11 6. SERVICER FUNCTIONS ............................................................................................................. 11 6.1. Servicer Duties .................................................................................................................. 11 6.2. Disposition of Scooters ..................................................................................................... 12 6.3. Merger ............................................................................................................................... 12 7. CERTAIN REPRESENTATIONS AND WARRANTIES ........................................................... 12 7.1. Organization; Power; Qualification .................................................................................. 12 7.2. Authorization; Enforceability ........................................................................................... 12 7.3. Compliance ....................................................................................................................... 13 7.4. Governmental Approvals .................................................................................................. 13 7.5. Eligible Vehicles ............................................................................................................... 13 7.6. Investment Company Act .................................................................................................. 13 7.7. Supplemental Documents True and Correct ..................................................................... 13 7.8. ERISA ............................................................................................................................... 13


 
ii US-DOCS\137537508.5 8. CERTAIN COVENANTS ............................................................................................................. 13 8.1. Corporate Existence; Foreign Qualification ..................................................................... 13 8.2. Books, Records, Inspections and Access to Information .................................................. 14 8.3. ERISA ............................................................................................................................... 14 8.4. Merger ............................................................................................................................... 15 8.5. Reporting ........................................................................................................................... 15 8.6. Minimum Liquidity ........................................................................................................... 16 8.7. Minimum Tangible Net Worth ......................................................................................... 16 8.8. Dividends .......................................................................................................................... 16 8.9. Transactions with Affiliates .............................................................................................. 17 8.10. Line of Business ................................................................................................................ 18 8.11. Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements, etc. ................................................................................................................ 18 8.12. Limitation on Certain Restrictions on Subsidiaries .......................................................... 18 9. DEFAULT AND REMEDIES THEREFOR ................................................................................. 18 9.1. Events of Default .............................................................................................................. 18 9.2. Effect of Operating Lease Event of Default ...................................................................... 19 9.3. Rights of Lessor Upon Operating Lease Event of Default ............................................... 19 9.4. Servicer Default ................................................................................................................ 21 10. INDEMNIFICATION .................................................................................................................... 22 10.1. Indemnification ................................................................................................................. 22 10.2. Certain Payments in Respect of Scooters ......................................................................... 22 11. LIENS AND ASSIGNMENTS ...................................................................................................... 22 11.1. Rights of Lessor Assigned to Administrative Agent ........................................................ 22 11.2. Right of the Lessor to Assign this Agreement .................................................................. 23 11.3. Limitations on the Right of the Lessee and the Servicer to Assign this Agreement ......... 23 11.4. Liens .................................................................................................................................. 24 12. NON-LIABILITY OF LESSOR .................................................................................................... 24 13. [RESERVED] ................................................................................................................................ 25 14. SUBMISSION TO JURISDICTION ............................................................................................. 25 15. GOVERNING LAW ...................................................................................................................... 25 16. JURY TRIAL ................................................................................................................................. 25 17. NOTICES ....................................................................................................................................... 25 18. ENTIRE AGREEMENT ................................................................................................................ 26 19. MODIFICATION AND SEVERABILITY ................................................................................... 26 20. SURVIVABILITY ......................................................................................................................... 27


 
iii US-DOCS\137537508.5 21. HEADINGS ................................................................................................................................... 27 22. EXECUTION IN COUNTERPARTS; ELECTRONIC EXECUTION ........................................ 27 23. THIRD-PARTY BENEFICIARIES ............................................................................................... 27 24. INTERCREDITOR AGREEMENT .............................................................................................. 27 SCHEDULES SCHEDULE I – Definitions


 
US-DOCS\117850317.3 MASTER SCOOTER OPERATING LEASE AND SERVICING AGREEMENT This Master Scooter Operating Lease and Servicing Agreement (as amended, modified or supplemented from time to time in accordance with the provisions hereof, this “Agreement”), dated as of April 27, 2021, by and among: BIRD US OPCO, LLC, a Delaware limited liability company, as lessor (in such capacity, the “Lessor”); and BIRD RIDES, INC., a Delaware corporation (“Bird”), as a lessee (in such capacity, the “Lessee”) and as servicer (in such capacity as servicer, the “Servicer”). RECITALS WHEREAS, the Lessor has entered into a Loan and Security Agreement (as amended, modified or supplemented from time to time, the “Loan Agreement”), dated as of April 27, 2021, among the Lessor, Bird US Holdco, LLC, the lenders party thereto and MidCap Financial Trust, as administrative agent (in such capacity, the “Administrative Agent”), in order to finance the acquisition of a fleet of electric scooters (the “Scooters’) that the Lessor determines shall be leased hereunder; WHEREAS, the Lessor desires to lease to the Lessee, and the Lessee desires to lease from the Lessor, the Scooters for use in connection with the business of the Lessee; WHEREAS, the Lessor and the Lessee each desire that the Servicer perform various servicing functions with respect to the Scooters, and the Servicer desires to perform such functions, in accordance with the terms hereof; NOW, THEREFORE, in consideration of the foregoing premises, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: AGREEMENT 1. DEFINITIONS AND CONSTRUCTION 1.1. Definitions. As used in this Agreement and unless the context requires a different meaning, capitalized terms used herein shall have the meanings ascribed thereto in Schedule I hereto and, if not defined therein, shall have the meanings assigned to such terms in the Loan Agreement. 1.2. Construction. (a) In this Agreement, including the preamble, recitals, attachments, schedules, annexes, exhibits and joinders hereto, unless the context otherwise requires: (i) the singular includes the plural and vice versa; (ii) references to an agreement or document shall include the preamble, recitals, all attachments, schedules, annexes, exhibits and joinders to such agreement or document, and are to such agreement or document (including all such attachments, schedules, annexes, exhibits and joinders to such agreement or


 
2 US-DOCS\137537508.5 document) as amended, supplemented, restated and otherwise modified from time to time and to any successor or replacement agreement or document, as applicable (unless otherwise stated); (iii) reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and reference to any Person in a particular capacity only refers to such Person in such capacity; (iv) reference to any gender includes the other gender; (v) reference to any Requirement of Law means such Requirement of Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time; (vi) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term; (vii) with respect to the determination of any period of time, “from” means “from and including” and “to” means “to but excluding”; (viii) the language used in this Agreement will be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction will be applied against any party; (ix) as used in this Agreement, unless the context otherwise requires, the term “title” refers to a Certificate of Title or other similar form of vehicle title and is intended by each party hereto to include the terms “vehicle registration” and “vehicle license plate,” unless specified otherwise; and (x) unless specified otherwise, “titling” will be deemed to include the acts of registering a scooter, including the registering of the license plates of a scooter. (b) Notwithstanding any language to the contrary contained herein, the parties hereto intend that this Agreement constitutes one indivisible lease of the Scooters and not separate leases governed by similar terms. The Scooters constitute one economic unit, and the Rent and all other provisions hereof have been negotiated and agreed to based upon a demise of all of the Scooters to the Lessees as a single, composite, inseparable transaction and would have been substantially different had separate leases or a divisible lease been intended. The parties intend that the provisions of this Agreement shall at all times be construed, interpreted and applied so as to carry out their mutual objective to create an indivisible lease of all of the Scooters and, in particular but without limitation, that, for purposes of any assumption, rejection or assignment of this Agreement under 11 U.S.C. Section 365, or any successor or replacement thereof or any analogous state law, this is one indivisible lease and non-severable lease and executory contract dealing with one legal and economic unit and that this Agreement must be assumed, rejected or assigned as a whole with respect to all (and only as to all) of the Scooters. Except as expressly provided in this Agreement for specific, isolated purposes (and then only to the extent expressly otherwise stated), all provisions of this Agreement apply equally and uniformly to all of the Scooters as one unit. Upon the occurrence and during the continuance of any Operating Lease Event of Default, the Lessor shall be entitled to exercise any applicable


 
3 US-DOCS\137537508.5 remedies under Section 9 with respect to all of the Scooters or any portion of the Scooters, regardless of the portion of the Scooters to which such Operating Lease Event of Default relates. The parties may amend this Agreement from time to time to add or remove one or more additional scooters as part of the Scooters and such future addition to, or removal from, the Scooters shall not in any way change the indivisible and non- severable nature of this Agreement and all of the foregoing provisions shall continue to apply in full force. Each party agrees that it shall not assert that this Agreement is not, and shall not challenge the characterization of this Agreement as, a single indivisible lease of all of the Scooters. Each party hereby waives any claim or defense based on a recharacterization of this Agreement as any agreement other than a single indivisible lease of all of the Scooters. 2. NATURE OF AGREEMENT. (a) The Lessee and the Lessor intend that this Agreement is a lease and that the relationship between the Lessor and the Lessee pursuant hereto shall always be only that of lessor and lessee, and the Lessee hereby declares, acknowledges and agrees that the Lessor is the owner of the Scooters, and legal title to the Scooters is held by the Lessor directly. The Lessee shall not acquire by virtue of this Agreement any right, equity, title or interest in or to any Scooters, except the leasehold interest established by this Agreement. The parties agree that this Agreement is a “true lease” and agree to treat the leasehold interest established by this Agreement as a lease for all purposes, including accounting, regulatory and otherwise, except it will be disregarded for tax purposes to the extent the Lessor and the Lessee are treated as the same taxpayer under the Code or under applicable state tax laws. (b) GRANT OF SECURITY INTEREST. To secure the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of all of the obligations and liabilities of the Lessee under this Agreement, the Lessee hereby grants to the Lessor a security interest in all of the Lessee’s right, title and interest, if any, in and to all of the following assets, property and interests in property, whether now owned or hereafter acquired or created (collectively, the “Collateral”): (i) the rights of the Lessee under this Agreement, as such Agreement may be amended, modified or supplemented from time to time in accordance with its terms, and any other agreements related to or in connection with this Agreement, to which the Lessee is a party (the “Lessee Agreements”), including, without limitation, (a) all monies, if any, due and to become due to the Lessee from any other Person under or in connection with any of the Lessee Agreements or Rider Contracts in connection with the use of Scooters, whether payable as rent, guaranty payments, fees, expenses, costs, indemnities, insurance recoveries, damages for the breach of any of the Lessee Agreements or otherwise, and (b) all rights, remedies, powers, privileges, liens and claims of the Lessee against any other party under or with respect to the Lessee Agreements (whether arising pursuant to the terms of such Lessee Agreements or otherwise available to the Lessee at law or in equity), including the right to enforce any of the Lessee Agreements and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to the Lessee Agreements or the obligations and liabilities of any party thereunder; (ii) [reserved];


 
4 US-DOCS\137537508.5 (iii) all right, title and interest of the Lessee in and to any Proceeds from the sale of the Scooters leased hereunder which, notwithstanding that this Agreement is intended to convey only a leasehold interest, are determined to be owned by the Lessee, including all monies due in respect of such Scooters, whether payable as the purchase price of such Scooters, as auction sales proceeds, or as fees, expenses, costs, indemnities, insurance recoveries, or otherwise; (iv) all payments under insurance policies (whether or not the Lessor or the Administrative Agent is named as the loss payee thereof) or any warranty payable by reason of loss or damage to, or otherwise with respect to, any of the Scooters leased hereunder solely to the extent attributable to a casualty event with respect to the Scooters; (v) all additional property that may from time to time hereafter become part of the Collateral pursuant to the terms of the Transaction Documents; and (vi) all Proceeds of any and all of the foregoing including, without limitation, cash and payments under insurance (whether or not the Lessor is named as the loss payee thereof). The Lessee hereby acknowledges that the Lessor has granted to the Administrative Agent, pursuant to the Loan Agreement, for the benefit of the Secured Parties, a first priority security interest in all of Lessor’s right, title and interest in and to the Scooters and this Agreement as collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of all of the obligations and liabilities of the Lessor, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the Loan Agreement and any other document made, delivered or given in connection therewith, whether on account of rent, principal, interest, reimbursement obligations, fees, indemnities, costs, or expenses (including all fees and disbursements of counsel to the Lessor and the Administrative Agent that are required to be paid by the Lessee pursuant to the terms hereof). (c) The Lessee agrees to deliver to the Lessor and the Administrative Agent on or before the Operating Lease Commencement Date: (i) a written search report from a Person satisfactory to the Lessor and the Administrative Agent listing all effective financing statements that name the Lessee as debtor or assignor, and that are filed in the jurisdictions in which filings were made pursuant to clause (ii) below, together with copies of such financing statements, and tax and judgment lien search reports from a Person satisfactory to the Lessor and the Administrative Agent showing no evidence of liens filed against the Lessee that purport to affect any Scooters leased hereunder or any Collateral under the Loan Agreement; and (ii) draft financing statements on Form UCC-1 to be filed in the jurisdiction where the Lessee is located under Section 9-307 of the UCC naming the Lessee, as debtor, the Lessor, as secured party, and the Administrative Agent, as assignee of the secured party, covering the Collateral described in Section 2(b) hereof.


 
5 US-DOCS\137537508.5 (d) The Lessee hereby authorizes each of the Lessor and the Administrative Agent to file (provided that the Administrative Agent shall have no obligation to so file), or cause to be filed, financing or continuation statements, and amendments thereto and assignments thereof, under the UCC in order to perfect its interest in the Collateral granted pursuant to Section 2(b). (e) Upon the termination of this Agreement, the Collateral shall be automatically released from the lien created hereby, without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the Lessor. Upon the sale, transfer, or other disposition of any Collateral in accordance with this Agreement, the Lien created hereby in favor of the Lessee in such Collateral shall be released and all rights to such Collateral shall revert to the Lessor. In furtherance of the foregoing, promptly following written request therefor by the Lessor delivered to the Lessee following any such termination or release, and at the expense of the Lessor, the Lessee shall execute and deliver to the Lessor UCC-3 termination statements or UCC-3 amendment statements and such other documents as the Lessor shall reasonably request to evidence such termination or release. 2.1. Lease of Scooters. (a) Agreement to Lease. From time to time, subject to the terms and provisions hereof (including satisfaction of the conditions precedent set forth in Section 2.1(b)), the Lessor agrees to lease to the Lessee, and the Lessee agrees to lease from the Lessor those certain Scooters identified on Leased Scooter Schedules produced from time to time by or on behalf of the Lessee pursuant to Section 2.1(c). (b) Conditions Precedent to Lease of Scooters. The agreement of the Lessor to commence leasing any Scooter to the Lessee hereunder is subject to the following conditions precedent being satisfied on the Scooter Lease Commencement Date for such Scooter: (i) No Default. No Operating Lease Event of Default shall have occurred and be continuing on the Scooter Lease Commencement Date for such Scooter or would result from the leasing of such Scooter hereunder, and no Potential Operating Lease Event of Default shall have occurred and be continuing on the Scooter Lease Commencement Date for such Scooter or would result from the leasing of such Scooter hereunder; (ii) Representations and Warranties. The representations and warranties contained in Section 7 are true and correct in all material respects (unless any such representation or warranty contains a materiality limitation by its terms, in which case such representation or warranty shall be true and correct) as of such date (unless any such representation or warranty by its terms makes reference to a specific date, in which case, such representation or warranty shall be true and correct for such specific date); and (iii) Eligible Vehicle. Such Scooter is an Eligible Scooter. (c) Leased Scooter Schedules. From time to time, the Lessee shall deliver or cause to be delivered to the Lessor one or more schedules identifying the scooters the Lessee desires to lease from the Lessor hereunder, which schedules shall include the Basic Scooter Information (each such schedule, a “Leased Scooter Schedule”). The Lessee hereby


 
6 US-DOCS\137537508.5 agrees that each such delivery of a Leased Scooter Schedule shall be deemed hereunder to constitute a representation and warranty by the Lessee, to and in favor of the Lessor, that each condition precedent to the leasing of the Scooters identified in such Leased Scooter Schedule has been or will be satisfied as of the date of such delivery. 2.2. Hell-or-High-Water Lease. THIS AGREEMENT SHALL BE A NET LEASE, AND THE LESSEE’S OBLIGATION TO PAY ALL RENT AND OTHER SUMS HEREUNDER SHALL BE ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY ABATEMENT, SETOFF, COUNTERCLAIM, DEDUCTION OR REDUCTION FOR ANY REASON WHATSOEVER. The obligations and liabilities of the Lessee hereunder shall in no way be released, discharged or otherwise affected (except as may be expressly provided herein) for any reason, including without limitation: (i) any defect in the condition, merchantability, quality or fitness for use of the Scooters or any part thereof; (ii) any damage to, removal, abandonment, salvage, loss, scrapping or destruction of or any requisition or taking of the Scooters or any part thereof; (iii) any restriction, prevention or curtailment of or interference with any use of the Scooters or any part thereof; (iv) any defect in or any Lien on title to the Scooters or any part thereof; (v) any change, waiver, extension, indulgence or other action or omission in respect of any obligation or liability of the Lessee or the Lessor; (vi) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to the Lessee, the Lessor or any other Person, or any action taken with respect to this Agreement by any trustee or receiver of any Person mentioned above, or by any court; (vii) any claim that the Lessee has or might have against any Person, including without limitation the Lessor; (viii) any failure on the part of the Lessor or the Lessee to perform or comply with any of the terms hereof or of any other agreement; (ix) any invalidity or unenforceability or disaffirmance of this Agreement or any provision hereof or any of the other Related Documents or any provision of any thereof, in each case whether against or by the Lessee or otherwise; (x) any insurance premiums payable by the Lessee with respect to the Scooters; or (xi) any other occurrence whatsoever, whether similar or dissimilar to the foregoing, whether or not the Lessee shall have notice or knowledge of any of the foregoing and whether or not foreseen or foreseeable. This Agreement shall not be cancellable by the Lessee and, except as expressly provided by this Agreement, the Lessee, to the extent permitted by law, waives all rights now or hereafter conferred by statute or otherwise to quit, terminate or surrender this Agreement, or to any


 
7 US-DOCS\137537508.5 diminution or reduction of Rent or other amounts payable by the Lessee hereunder. All payments by the Lessee made hereunder shall be final (except to the extent of adjustments provided for herein), absent manifest error and, except as otherwise provided herein, the Lessee shall not seek to recover any such payment or any part thereof for any reason whatsoever, absent manifest error. All covenants and agreements of the Lessee herein shall be performed at its cost, expense and risk unless expressly otherwise stated. 3. TERM. 3.1. Scooter Lease Term. (a) Scooter Lease Commencement Date. The “Scooter Lease Commencement Date” with respect to any Scooter shall mean the date referenced in the applicable Leased Scooter Schedule with respect to such Scooter but in no event shall such date be a date later than the date on which the Lessor acquires such Scooter. (b) Scooter Lease Term. The “Scooter Lease Term” with respect to each Scooter shall extend from the Scooter Lease Commencement Date through the earliest of: (i) the date such Scooter is disposed of pursuant to Section 4.5; (ii) [reserved]; and (iii) the Operating Lease Expiration Date. 3.2. Operating Lease Term. The “Operating Lease Commencement Date” shall mean the Closing Date. The “Operating Lease Expiration Date” shall mean the later of (i) the date of the final payment in full of the Loans and (ii) the disposition or return of the last Scooter leased by the Lessee hereunder. The “Term” of this Agreement shall mean the period commencing on the Operating Lease Commencement Date and ending on the Operating Lease Expiration Date. 4. RENT AND LEASE CHARGES. The Lessee will pay the amounts set forth below on each due date set forth below in this Section 4. 4.1. Amortization Schedule. On or prior to the Scooter Lease Commencement Date for each Scooter, the Lessor shall establish or cause to be established a schedule of the amortization amounts due with respect to such Scooter (which may be the Amortization Schedule attached as Schedule II to the Loan Agreement). 4.2. Monthly Base Rent. On each Payment Date, the Lessee shall pay to the Lessor the Monthly Base Rent due in respect of all Scooters. The “Monthly Base Rent” due with respect to a Scooter on each Payment Date shall equal such Scooter’s Pro Rata Share of the Amortization Amount due and payable on the immediately succeeding Payment Date. 4.3. [Reserved]. 4.4. Quarterly Rider Incentive / Contra Pay True-Up Amount. On each Payment Date immediately following a Quarterly Period under the Loan Agreement, the Lessee shall pay to the Lessor the Quarterly Rider Incentive / Contra Pay True-Up Amount, if any, due in respect of all Scooters on such Payment Date. The “Quarterly Rider Incentive / Contra Pay True-Up Amount” due for each Payment Date immediately following a Quarterly Period shall equal the amount by which the


 
8 US-DOCS\137537508.5 Rider Incentive / Contra Pay offered in respect of all Scooters owned by the Lessor at any point during such Quarterly Period exceeds 20% of the aggregate amount of all revenue earned in respect of such Scooters over such Quarterly Period; provided, that the Quarterly Rider Incentive / Contra Pay True-Up Amount for the Payment Date occurring in October 2022 shall be $0. 4.5. Disposition. On each Payment Date, the Lessee shall deliver to the Lessor and the Administrative Agent a list containing each Scooter leased by the Lessee with respect to which the Lessee became obligated to repurchase such Scooter pursuant to Section 10.2 in the preceding calendar month (each such list, a “Monthly Disposition Report” and each such Scooter an “Affected Scooter”). On each Payment Date following a Collection Period in which there is an Affected Scooter (i) the Lessor shall cause title to such Scooter to be transferred to or at the direction of the Lessee of such Scooter and (ii) the Lessee shall pay to the Lessor the Adjusted Cost of the Scooter, in the case of a Scooter that the Lessee is required to repurchase pursuant to Section 10.2. 4.6. Tariff Rebate Amount. On each Payment Date, the Lessee shall pay to the Lessor the Tariff Rebate Amount, if any, for such Payment Date; provided, that the Lessee shall not be required to pay the Tariff Rebate Amount for any Payment Date if, on such Payment Date, no Event of Default or Potential Event of Default under the Loan Agreement has occurred and is continuing. The “Tariff Rebate Amount” due for each Payment Date shall equal all rebates, credits or other reimbursement of tariffs received in respect of a Scooter, if any, during the immediately preceding Collection Period. 4.7. Making of Payments. (a) All payments hereunder shall be made by the Lessee, or by the Servicer on behalf of the Lessee, to, or for the account of, the Lessor in immediately available funds, without setoff, counterclaim or deduction of any kind. (b) All such payments shall be deposited into the Collection Account not later than 2:00 p.m., New York City time, on the date such payments are payable hereunder. (c) In the event the Lessee fails to remit payment of any amount due under this Agreement on or before the date when due and payable hereunder, the amount not paid will be considered delinquent and the Lessee shall pay default interest with respect thereto at a rate equal to the effective interest rate that would be payable by the Lessor on any overdue amounts owed by the Lessor with respect to the Loans, during the period from the date on which such delinquent amount was payable until such delinquent amount (with accrued interest) is paid. 4.8. Ordering and Delivery Expenses. With respect to any Scooter to be leased by the Lessee hereunder, the Lessee shall pay to or at the direction of the Lessor all applicable costs and expenses of freight, packing, handling, storage, shipment and delivery of such Scooter and all tariffs, sales and use tax (if any). 5. SCOOTER OPERATIONAL COVENANTS 5.1. NET LEASE. THIS AGREEMENT SHALL BE A NET LEASE. 5.1.1. Maintenance and Repairs. The Lessee shall pay for all maintenance, charging, storage and repairs of the Scooters. The Lessee will pay, or cause to be paid, all usual and


 
9 US-DOCS\137537508.5 routine expenses incurred in the use and operation of Scooters leased by the Lessee hereunder including, but not limited to, deploying, charging, repairing and rebalancing Scooters, maintaining Scooters in good and safe operating condition, and recycling or otherwise disposing of Scooters and related parts. Any improvements or additions to any Scooters shall become and remain the property of the Lessor. 5.1.2. Riders. The Lessee shall request Riders to execute or acknowledge Rider Contracts and Terms of Service agreements and shall enforce such Rider Contracts and Terms of Service agreements in accordance with the Lessee’s historical practice. The Lessee shall maintain customer support functions and other user-facing functions to maintain and improve the user experience consistent with historical practice. The Lessee shall not amend or modify Rider Contracts if such amendment or modification would reasonably be expected to have a Lease Material Adverse Effect. 5.1.3. Fleet Managers. With respect to Scooters subject to Fleet Management Contracts, the Lessee shall ensure that all Fleet Managers are properly trained and onboarded with all relevant Fleet Manager-facing mobile applications. The Lessee shall monitor the performance of Fleet Managers and identify and rectify any breaches by Fleet Managers under Fleet Management Contracts, including terminating Fleet Management Contracts and recovering Scooters. The Lessee shall promptly pay and discharge all obligations under Fleet Management Contracts. 5.1.4. Insurance. The Lessee shall at all times maintain or cause to be maintained insurance policies covering risks against casualty events (which may be umbrella policies covering the Lessee, the Lessor and some or all Affiliates of the Lessee) with respect to the Scooters and use thereof (and shall cause each such insurance policy maintained by it or an Affiliate to name the Lessor and the Administrative Agent as an additional insured and loss payee to the extent required by the Loan Agreement) of at least the types and in at least the same amounts as are customarily maintained by the Lessee and its Affiliates for its own scooters and related assets. The Lessee shall, from time to time upon the Lessor’s or the Administrative Agent’s reasonable request, deliver to the Lessor and the Administrative Agent copies of documentation evidencing all insurance required by this Section 5.1.4 that is then in effect. 5.1.5. Ordering and Delivery Expenses. The Lessee shall be responsible for the payment of all ordering and delivery expenses as set forth in Section 4.8. 5.1.6. Fees; Traffic Summonses; Penalties and Fines. The Lessee shall be responsible for the payment of all registration fees, title fees, license fees, permit fees or other similar governmental fees and taxes (including the cost of any recording or registration fees or other similar governmental charges with respect to the notation on any Certificates of Title of the Scooters of the interest of the Administrative Agent), all costs and expenses in connection with the transfer of title of, or reflection of the interest of any lienholder in, any Scooter, traffic summonses, penalties, judgments and fines incurred with respect to any Scooter during the Scooter Lease Term for such Scooter or imposed during the Scooter Lease Term for such Scooter by any Governmental Authority with respect to such Scooters in connection with the Lessee’s operation of such Scooters.


 
10 US-DOCS\137537508.5 5.1.7. No Prejudice to the Lessor. The Lessee agrees to operate the Scooters leased hereunder with a goal of maximizing the profit generated from such Scooters as if such Scooters were owned directly by the Lessee. In deciding where to deploy the Scooters, whether to engage Fleet Managers to assist in the management of the Scooters and all other decisions relevant to the use of the Scooters, the Lessee shall not intentionally take any action to compete with or prejudice the Lessor or any Secured Party. The Lessee agrees to notify the Lessor and the Administrative Agent in writing of strategic changes to the Lessee’s historical business model, including without limitation, with respect to the revenue sharing program utilized with Fleet Managers, to the extent such strategic changes could reasonably be expected to be materially adverse to the Lessor or the Lenders. 5.2. Collections. 5.2.1. The Lessee shall collect all amounts due under Rider Contracts from the use of Scooters as and when the same shall become due. Any amounts constituting property of the Lessor received by the Lessee at any time other than in the Collection Account shall be held by the Lessee in trust for the benefit of the Lessor and applied in accordance with this Section 5.2. 5.2.2. The Lessee shall cause all collections from Rider Contracts to be deposited in the Stripe Account, Paypal Account, or Other Lessee Account of the Lessee (a “Lessee Account”). The Lessee shall ascertain the Payment Information relating to any payments received or recognized in (x) a Lessee Account or (y) the Collection Account, in each case, using commercially reasonable efforts as soon as practicable following receipt or deposit of such funds and in any event on or prior to the next occurring Payment Date following receipt or deposit of such funds (to the extent such funds were received or deposited on or prior to the last day of the month most recently ended prior to such Payment Date); provided, however, that if the Lessee has not been able to obtain the Payment Information with respect to any payments in respect of scooters on or prior to the next occurring Payment Date (to the extent such funds were received or deposited on or prior to the last day of the month most recently ended prior to such Payment Date), then the Lessee shall deposit any such amounts into the Collection Account. Once the Lessee has determined all Payment Information with respect to a payment in respect of a scooter, the Lessee shall segregate any such funds that constitute property of the Lessor for the benefit of the Lessor. 5.3. Intellectual Property. 5.3.1. The Lessee shall not do any act or omit to do any act whereby any of the Scooter IP may lapse, or become abandoned or cancelled, or dedicated to the public, in each case except with respect to non-material Patents, Trademarks, Copyrights or other Intellectual Property that are, in the reasonable judgment of Lessee, no longer economically practicable to maintain or useful in the conduct of the business of Lessee, taken as a whole, or the abandonment or cancellation of which could not reasonably be expected to result in a Lease Material Adverse Effect; 5.3.2. The Lessee shall not, with respect to any Trademarks constituting Scooter IP, fail to maintain the level of the quality of Scooters leased and services rendered under any such trademark at a level at least substantially consistent with the quality of such Scooters and services as of the Closing Date, and Lessee shall adequately control the quality of


 
11 US-DOCS\137537508.5 Scooters and services offered by any licensee of its trademarks to maintain such standards, except for any such failure which could not reasonably be expected to result in a Lease Material Adverse Effect; 5.3.3. The Lessee shall promptly notify the Lessor if it knows or becomes aware that any item of Intellectual Property may become subject to any judicial or administrative adverse determination regarding Lessee’s right to own, register or use or the validity or enforceability of any material item of Scooter IP (including the institution of any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office, any state registry, or any court but excluding non-final office actions issued in the ordinary course), except for any such determination which could not reasonably be expected to result in a Lease Material Adverse Effect; 5.3.4. In the event that the Lessee knows or has reason to know that any material Scooter IP has been infringed, misappropriated or diluted by a third party in a manner that could reasonably be expected to have a Lease Material Adverse Effect, the Lessee shall promptly notify the Lessor and shall, if the Lessee deems it necessary in its reasonable business judgment, promptly sue and recover any and all damages, and take such other actions as are reasonably appropriate under the circumstances; and 5.3.5. In the event that any Scooter IP which is material to the business of the Lessee is not owned by the Lessee but is instead owned by (i) an Affiliate of the Lessee, the Lessee shall obtain sufficient rights in and to such Scooter IP from its applicable Affiliate, or (ii) a third party, the Lessee shall use commercially reasonable efforts to obtain sufficient rights in and to such Scooter IP from such third party, in each case in order to grant the Lessor a license, or sublicense, to use such Scooter IP on the same terms and conditions as those set forth in Section 9.3.3 hereof. 5.4. Scooter Use. The Lessee may use Scooters leased hereunder in connection with its business, subject to the provisions of this Agreement. Such use shall be confined to the United States (which use will include all normal course movements of Scooters across geographic markets in the United States, in each case in the Lessee’s course of business and subject to the Transaction Documents). The Lessee agrees to possess, operate and maintain each Scooter leased to it in a manner consistent with how the Lessee would possess, operate and maintain such Scooter were the Lessee the beneficial owner of such Scooter. 5.5. Non-Disturbance. So long as the Lessee satisfies its obligations hereunder with respect a Scooter, its quiet enjoyment, possession and use of such Scooter will not be disturbed during the Scooter Lease Term for such Scooter subject, however, to Section 9 hereof. 5.6. Manufacturer’s Warranties. If a Scooter is covered by a manufacturer’s warranty, the Lessee, during the Scooter Lease Term for such Scooter, shall (to the extent permitted under such manufacturer’s warranty) make any claims under such warranty on behalf of the Lessor that the Lessor could make. 6. SERVICER FUNCTIONS. 6.1. Servicer Duties. The Servicer agrees to perform the following duties on behalf of the Lessor under the Transaction Documents:


 
12 US-DOCS\137537508.5 (a) Delivering such items as are necessary or advisable to perfect or protect the Administrative Agent’s security interest in and a valid and perfected Lien on all Collateral thereunder, including the preparation of any financing statements or continuation relating to the Collateral pledged thereunder for filing under the provisions of the UCC of any applicable jurisdiction; (b) Obtaining and preserving the Lessor’s qualification to do business in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect, or which qualification shall be necessary to protect the validity and enforceability of the Loan Agreement and any instrument or agreement included in the Collateral thereunder; (c) Giving the Lessor and the Administrative Agent written notice of the commencement or existence of any proceedings by or before any Governmental Authority against or affecting the Lessor which is reasonably likely to have a Material Adverse Effect; and (d) Doing and performing, from time to time, any and all acts to prepare for the execution by the Lessor of any and all further instruments required or reasonably requested by the Lessor to more fully effect the purposes of such Transaction Document. 6.2. Disposition of Scooters. Upon the occurrence and continuance of an Operating Lease Event of Default, the Servicer shall dispose of any Scooters in accordance with the instructions of the Administrative Agent. To the extent the Servicer fails to so dispose of any such Scooters, the Administrative Agent shall have the right to otherwise dispose of such Scooters. 6.3. Merger. The Servicer shall not merge or consolidate with or into any other Person unless (i) the Servicer is the surviving entity of such merger or consolidation or (ii) the surviving entity of such merger or consolidation expressly assumes the Servicer’s obligations under this Agreement. For the avoidance of doubt, the SPAC Transaction shall not constitute a breach of this covenant. 7. CERTAIN REPRESENTATIONS AND WARRANTIES. The Lessee and the Servicer each represents and warrants to the Lessor, the Lenders and the Administrative Agent that as of the Closing Date, as of each Scooter Lease Commencement Date, and as of the Amendment 2 Initial Funding Date: 7.1. Organization; Power; Qualification. It has been duly formed and is validly existing as a corporation in good standing under the laws of its jurisdiction of organization, with corporate power under the laws of such jurisdiction to execute and deliver this Agreement and the other Transaction Documents to which it is a party and to perform its obligations hereunder and thereunder, and is duly qualified and in good standing to do business as a foreign corporation in each jurisdiction where the character of its properties or the nature of its business makes such qualification necessary and where the failure to be so qualified and in good standing would reasonably be expected to result in a Lease Material Adverse Effect. 7.2. Authorization; Enforceability. Each of this Agreement and the other Transaction Documents to which it is a party has been duly authorized, executed and delivered and, assuming due authorization, execution and delivery by the other parties hereto or thereto, is a valid and legally binding agreement of the Lessee or the Servicer, as applicable, enforceable against the Lessee or the Servicer, as applicable, in accordance with its terms (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally or by general equitable principles, whether


 
13 US-DOCS\137537508.5 considered in a proceeding at law or in equity or by an implied covenant of good faith and fair dealing). 7.3. Compliance. The execution, delivery and performance by it of this Agreement and the Transaction Documents to which it is a party will not conflict with or result in a breach 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 its property or assets pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or other similar agreement or instrument under which it is a debtor or guarantor (except to the extent that such conflict, breach, creation or imposition is not reasonably likely to have a Lease Material Adverse Effect) nor will such action result in a violation of any provision of applicable law or regulation (except to the extent that such violation is not reasonably likely to result in a Lease Material Adverse Effect) or of the provisions of its certificate of incorporation or the by-laws. 7.4. Governmental Approvals. There is no consent, approval, authorization, order, registration or qualification of or with any Governmental Authority having jurisdiction over it which is required for the execution, delivery and performance of this Agreement or the Transaction Documents (other than such consents, approvals, authorizations, orders, registrations or qualifications as have been obtained or made), except to the extent that the failure to so obtain or effect any such consent, approval, authorization, order, registration or qualification is not reasonably likely to result in a Lease Material Adverse Effect. 7.5. Eligible Vehicles. Each Scooter is or will be, as the case may be, on the applicable Scooter Lease Commencement Date, an Eligible Scooter. On the Amendment No. 2 Initial Funding Date, all Scooters related to the Credit Extension on such date were Eligible Scooters. 7.6. Investment Company Act. It is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “Act”), and it is not subject to any other statute which would impair or restrict its ability to perform its obligations under this Agreement or the other Transaction Documents, and neither the entering into or performance by it of this Agreement violates any provision of such Act. 7.7. Supplemental Documents True and Correct. All information contained in any written material that has been submitted, or that may hereafter be submitted by it to the Lessor, the Administrative Agent or any Lender is, or will be, true, correct and complete in all material respects. 7.8. ERISA. Except as would not be reasonably likely to result in a Lease Material Adverse Effect, (a) it is in compliance with all applicable provisions and requirements of all applicable laws, rules and regulations with respect to each Employee Benefit Plan, and has performed all of its obligations under each Employee Benefit Plan; (b) no liability to the PBGC (other than required premium payments), the Internal Revenue Service, any Employee Benefit Plan or any trust established under Title IV of ERISA has been or is expected to be incurred by the it or its ERISA Affiliates; and (c) no ERISA Event has occurred or is reasonably expected to occur. 8. CERTAIN COVENANTS. Until the expiration or termination of this Agreement, and thereafter until the obligations of the Lessee under this Agreement and the Transaction Documents are satisfied in full, the Lessee covenants and agrees: 8.1. Corporate Existence; Foreign Qualification. It shall do and cause to be done at all times all things necessary to (i) subject to Section 8.4, maintain and preserve its corporate, partnership, limited liability or trust existence; (ii) be, and ensure that it is, duly qualified to do business and in good


 
14 US-DOCS\137537508.5 standing as a foreign entity in each jurisdiction where the character of its properties or the nature of its business makes such qualification necessary and where the failure to so qualify would be reasonably expected to result in a Lease Material Adverse Effect; and (iii) comply with all Contractual Obligations and Requirements of Law binding upon it, except to the extent that the failure to comply therewith would not, in the aggregate, be reasonably expected to result in a Lease Material Adverse Effect. 8.2. Books, Records, Inspections and Access to Information. The Lessee shall: (a) Maintain complete and accurate books and records in all material respects with respect to the Scooters leased by it under this Agreement and the other Collateral; (b) At any time and from time to time during regular business hours, upon reasonable prior notice from the Lessor or the Administrative Agent, permit the Lessor or the Administrative Agent (or such other person who may be designated from time to time by the Lessor or the Administrative Agent) to examine and make copies of such books, records and documents in the possession or under the control of the Lessee relating to the Scooters leased by it under this Agreement and the other Collateral (other than any such books, records and documents that are subject to legal privilege, contain trade secrets or are otherwise of strategic importance to the business of the Lessee, in each case as determined by the Lessee acting reasonably and in good faith); provided, that any such examination pursuant to this clause (b) shall not occur more frequently than once per month unless and until an Operating Lease Event of Default or Servicer Default has occurred and is continuing; (c) Permit any of the Lessor or the Administrative Agent (or such other person who may be designated from time to time by any of the Lessor or the Administrative Agent) to visit the office and properties of the Lessee during regular business hours and with reasonable prior notice for the purpose of discussing matters relating to the Scooters leased by the Lessee under this Agreement with any of the Lessee’s senior management having knowledge of such matters, all at such reasonable times and as often as the Lessor or the Administrative Agent may reasonably request (other than matters that are subject to legal privilege or which require the disclosure of trade secrets, in each case as determined by the Lessee acting reasonably and in good faith); provided, that any such examination or discussion pursuant to this clause (c) shall not occur more frequently than once per month unless and until an Operating Lease Event of Default or Servicer Default has occurred and is continuing; and (d) Upon the reasonable request of the Lessor or the Administrative Agent from time to time, make reasonable efforts (but not disrupt the ongoing normal course rental of Scooters to customers) to confirm to the Lessor and the Administrative Agent the location and status (as recorded in the Lessee’s computer systems) of each Scooter leased by the Lessee hereunder. 8.3. ERISA. The Lessee shall comply with all applicable provisions and requirements of all applicable laws, rules and regulations with respect to each Employee Benefit Plan, and perform all its obligations under each Employee Benefit Plan, except to the extent that the failure to so comply or perform would not, in the aggregate, be reasonably expected to result in a Lease Material Adverse Effect.


 
15 US-DOCS\137537508.5 8.4. Merger. The Lessee shall not merge or consolidate with or into any other Person unless (i) a Lessee is the surviving entity of such merger or consolidation or (ii) the surviving entity of such merger or consolidation expressly assumes the Lessee’s obligations under this Agreement. For the avoidance of doubt, the SPAC Transaction shall not constitute a breach of this covenant. 8.5. Reporting. The Lessee shall provide to the Lessor and the Administrative Agent: 8.5.1. Annual. Within (i) 180 days after the end of the Lessee’s 2020 fiscal year and (ii) 90 days after the end of each of the Lessee’s fiscal years thereafter, consolidated financial statements consisting of a balance sheet of Bird Global, Inc. and its consolidated subsidiaries as at the end of such fiscal year and statements of income, stockholders’ equity and cash flows of Bird Global, Inc. and its consolidated subsidiaries for such fiscal year, setting forth in comparative form the corresponding figures for the preceding fiscal year (if applicable, with such comparative figures of Bird Global, Inc. to commence in the first fiscal quarter of 2023 with such comparison to be made against figures for the first fiscal quarter of 2022), certified by and containing an opinion, unqualified as to scope (other than a qualification or exception resulting from or relating to (i) an actual or anticipated breach of a financial covenant or (ii) an upcoming maturity date), of Ernst & Young LLP or another firm of independent certified public accountants of nationally recognized standing selected by the Lessee and acceptable to the Lessor and the Administrative Agent. 8.5.2. Quarterly. Within forty-five (45) days after the end of each of the first three (3) quarters of each of the Lessee’s fiscal years (commencing with the fiscal quarter ending on or around March 31, 2021), financial statements consisting of consolidated balance sheets of Bird Global, Inc. and its consolidated subsidiaries as at the end of such quarter and statements of income, stockholders’ equity and cash flows of Bird Global, Inc. and its consolidated subsidiaries for each such quarter, setting forth in comparative form the corresponding figures for the corresponding periods of the preceding fiscal year (if applicable, with such comparative figures of Bird Global, Inc. to commence in the first fiscal quarter of 2023 with such comparison to be made against figures for the first fiscal quarter of 2022), all in reasonable detail and certified (subject to normal year-end audit adjustments) by a senior financial officer of Bird Global, Inc. as having been prepared in accordance with GAAP. 8.5.3. Monthly Minimum Liquidity. Within twenty five (25) calendar days after the end of each Collection Period, a certificate of the Lessee certifying (which, for the avoidance of doubt, shall not require any backup documentation evidencing such certification) whether it is in compliance with the Minimum Liquidity covenant set forth in Section 8.6. 8.5.4. Monthly Minimum Tangible Net Worth. Within twenty five (25) calendar days after the end of each Collection Period, a certificate of the Lessee certifying whether it is in compliance with the Minimum Tangible Net Worth covenant set forth in Section 8.7 hereof. 8.5.5. Notice of Material Events. Promptly after becoming aware thereof, (a) notice of the occurrence of any Potential Operating Lease Event of Default or Operating Lease Event of Default, together with a written statement of an Authorized Officer of the Lessee describing such event and the action that the Lessee proposes to take with respect thereto, (b) notice of any Event of Default or Potential Event of Default and (c) notice of the occurrence of any other event which would be reasonably expected to have a Lease


 
16 US-DOCS\137537508.5 Material Adverse Effect, specifying the nature thereof, and what action the Lessee has taken, is taking or proposes to take with respect thereto. The financial data that shall be delivered to the Lessor and the Administrative Agent pursuant to Section 8.5.1 and Section 8.5.2 shall be prepared in conformity with GAAP in all material respects. Notwithstanding the foregoing, the obligations in Sections 8.5.1 and 8.5.2 may be satisfied with respect to financial information of the Lessee and its consolidated subsidiaries by furnishing (A) the information required pursuant to Sections 8.5.1 and 8.5.2 for Parent and its consolidated subsidiaries or Lessee and its consolidated subsidiaries or (B) the Parent’s Form 10-K or 10-Q, as applicable, filed with the SEC; provided, that with respect to each of clauses (A) and (B), (i) to the extent such information is provided for Parent and its consolidated subsidiaries, such information is accompanied by a reconciliation that explains in reasonable detail the differences between the information relating to Parent, on the one hand, and the information relating to the Lessee and its Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is provided for Parent and its consolidated subsidiaries in lieu of information required to be provided under Section 8.5.1, such materials are accompanied by a report and opinion of Ernst & Young LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall be unqualified as to scope other than as permitted by Section 8.5.1. 8.6. Minimum Liquidity. At all times from and after the Closing Date, the Liquidity of the Lessee shall not be less than Minimum Liquidity Covenant Level Amount. 8.7. Minimum Tangible Net Worth. On the last Business Day of each calendar month, the Tangible Net Worth of Lessee shall not be less than the Minimum Tangible Net Worth Covenant Level Amount. 8.8. Dividends. The Lessee will not authorize, declare or pay any Dividends, except that (i) the Lessee may repurchase or retire (and may make Dividends to any direct or indirect parent of the Lessee (including Parent) to enable such parent entity to repurchase or retire) the stock of current, future, or former employees, directors, officers, or consultants (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of Lessee (or of any direct or indirect parent of Lessee (including Parent)) pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or compensation arrangement (including pursuant to any stockholder or subscription agreement) with any employee, director, officer or consultant of Lessee (or the direct or indirect parent of Lessee (including Parent)); provided, that the aggregate amount of all such repurchases or retirements does not exceed $1,000,000 per fiscal year; (ii) the Lessee may authorize, declare, or pay any Dividends so long as an Event of Default or Potential Event of Default under the Loan Agreement does not exist at the time of such authorization, declaration, or payment and would not exist after giving effect to such authorization, declaration, or payment; provided, that the aggregate amount of all Dividends authorized, declared, or paid following the Closing Date does not exceed $1,000,000; (iii) the Lessee may make (x) payments in lieu of fractional shares of equity securities arising out of stock dividends, splits, combinations, or conversions and (y) Dividends to any direct or indirect parent thereof (including Parent) in an amount sufficient to enable such direct or indirect parent entity (including Parent) to make payments in lieu of fractional shares of equity securities arising out of stock dividends, splits, combinations, or


 
17 US-DOCS\137537508.5 conversions; (iv) the Lessee may convert any of its convertible equity securities into other equity securities pursuant to the terms of such convertible equity securities or otherwise in exchange thereof; (v) the Lessee may authorize, declare, or pay any Dividends to the Permitted Holders solely in the form of Voting Stock; (vi) the Lessee may authorize, declare, or pay any Dividends to Parent to be used by Parent to make Permitted Subordinated Loan Payments (as defined in and permitted under the Intercreditor Agreement), (vii) after a Qualifying IPO, the Lessee may authorize, declare, or pay any Dividends to any direct or indirect parent entity of the Lessee (including Parent), the proceeds of which will be used to pay (A) such parent entity’s allocable share of the net taxable income of the Lessee for the relevant taxable period (appropriately reduced by taxes paid by the Lessee to the extent that such taxes would otherwise be borne by such parent entity), (B) franchise taxes and other fees, taxes, and expenses (including expenses necessary to maintain its status as a public company after a Qualifying IPO) required to maintain the corporate or legal existence of such parent entity and comply with laws applicable to a public company (including fees and expenses for the preparation of financial statements for a public company), and/or (C) customary salary, bonus, and other benefits payable to officers and employees of such parent entity to the extent such salaries, bonuses, and other benefits are attributable to the ownership or operation of the Lessee and its subsidiaries (to the extent such payments have not been and are not expected to be made by the Lessee or its subsidiaries); (viii) the Lessee may authorize, declare, or pay any Dividends (and may make Dividends to any direct or indirect parent of Lessee in order to enable such parent entity to pay Dividends) in respect of withholding or other similar taxes payable upon repurchase, retirement, or other acquisition or retirement of equity interests of the Lessee (or any direct or indirect parent thereof (including Parent)) or otherwise pursuant to any employee or director equity plan, employee or director stock option or profits interest plan or any other employee or director benefit plan or any similar agreement; and (ix) the Lessee may authorize, declare, or pay any Dividends (and may make Dividends to any direct or indirect parent of Lessee (including Parent) to enable such parent entity to make Dividends) in the form of repurchases of Equity Interests in Lessee (or a direct or indirect parent thereof (including Parent)) deemed to occur upon the exercise of stock options, warrants, and similar equity incentive awards if such Equity Interests represent a portion of the exercise price of such options or warrants or similar rights. 8.9. Transactions with Affiliates. The Lessee will not enter into any transaction or series of related transactions with any of its Affiliates, other than on terms and conditions substantially as favorable to the Lessee as would reasonably be obtained by the Lessee at that time in a comparable arm’s-length transaction with a Person other than an Affiliate, except that the following in any event shall be permitted: (i) Dividends may be paid to the extent provided in Section 8.8; (ii) customary fees, indemnities and reimbursements may be paid to non-officer directors of the Lessee; (iii) the Lessee may enter into, and may make payments under, employment agreements, employee benefits plans, stock option plans, indemnification provisions and other similar compensatory arrangements with officers, employees and directors of the Lessee in the ordinary course of business; (iv) the sale or issuance of the Lessee’s Equity Interests in a bona-fide equity financing transaction, or merger or combination transaction of the Lessee or any of its Subsidiaries (including the SPAC Transaction), in each case, to the extent not constituting a Change of Control;


 
18 US-DOCS\137537508.5 (v) unsecured debt financings from the Lessee’s existing investors; (vi) transactions by and among Lessee and any of its Subsidiaries; (vii) transactions by and among (i) any direct or indirect parent of Lessee that is a public company (including Parent) on the one hand and (ii) Lessee or any of its Subsidiaries on the other hand; and (viii) the Note Documents and any transactions contemplated by the Note Documents. 8.10. Line of Business. The Lessee will not engage directly or indirectly in any business other than the operation and management of micro-mobility vehicles and reasonable extensions thereof and businesses ancillary or complementary thereto. 8.11. Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements, etc.. The Lessee will not amend, modify or change its certificate or articles of incorporation (including, without limitation, by the filing or modification of any certificate or articles of designation), certificate of formation, limited liability company agreement or by-laws (or the equivalent organizational documents), as applicable, or any agreement entered into by it with respect to its capital stock or other Equity Interests, or enter into any new agreement with respect to its capital stock or other Equity Interests, unless such amendment, modification, change or other action contemplated by this Section 8.11 could not reasonably be expected to be materially adverse to the interests of the Lenders or the Administrative Agent, provided that the Lessee will not change its name or jurisdiction of organization unless the Lessee provides the Administrative Agent and the Lenders at least thirty (30) days’ prior notice thereof. 8.12. Limitation on Certain Restrictions on Subsidiaries. The Lessee will not, and will not permit any of its Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on (a) the granting by the Credit Parties of any Liens securing such Credit Parties’ obligations under the Transaction Documents, or (b) the ability of the Lessee to make investments in or transfer property or assets to a Credit Party, except pursuant to the Note Documents to the extent permitted under the Intercreditor Agreement. 9. DEFAULT AND REMEDIES THEREFOR. 9.1. Events of Default. Any one or more of the following will constitute an event of default (a “Operating Lease Event of Default”) as that term is used herein: 9.1.1. there occurs a default in the payment of any amount payable by the Lessee under this Agreement that continues for a period of two (2) Business Days; 9.1.2. subject to Section 11.3(ii), any unauthorized assignment or transfer of this Agreement by the Lessee or the Servicer occurs; 9.1.3. [reserved]; 9.1.4. the failure of the Lessee or the Servicer to observe or perform any other covenant, condition, agreement or provision hereof, including, but not limited to, usage, and maintenance and such default continues for more than thirty (30) consecutive days after the earlier of the date written notice thereof is delivered by the Lessor or the


 
19 US-DOCS\137537508.5 Administrative Agent to the Lessee or the date an Authorized Officer of the Lessee or the Servicer obtains actual knowledge thereof; 9.1.5. subject to Section 10.2, if (i) any representation or warranty made or deemed made by the Lessee or the Servicer herein or any information or report delivered by the Lessee or the Servicer pursuant to this Agreement shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered, which, to the extent capable of cure, remains unremedied for thirty (30) consecutive days after the earlier of (x) the date of the receipt of written notice thereof from the Lessor or the Administrative Agent to the Lessee or the Servicer and (y) the date an Authorized Officer of the Lessee or the Servicer learns of such circumstance or condition; 9.1.6. one or more judgments or decrees shall be entered against the Lessee or the Servicer involving in the aggregate a liability (not paid or to the extent not covered by a reputable and solvent insurance company) and such judgments and decrees either shall be final and non-appealable or shall not be vacated, discharged or stayed or bonded pending appeal for any period of 30 consecutive days, and the aggregate amount of all such judgments equals or exceeds $10,000,000; 9.1.7. an Event of Bankruptcy occurs with respect to the Lessee or the Servicer; 9.1.8. any material provision of this Agreement ceases to be in full force and effect (other than in accordance with its terms or as otherwise expressly permitted in the Transaction Documents) or a proceeding shall be commenced by the Lessee or the Servicer to establish the invalidity or unenforceability of this Agreement; or 9.1.9. an Event of Default occurs under the Loan Agreement. 9.2. Effect of Operating Lease Event of Default. If any Operating Lease Event of Default shall occur, the Lessee’s right of possession with respect to any Scooters leased hereunder shall be subject to the Lessor’s option to terminate such right as set forth in Sections 9.3 and 9.4. 9.3. Rights of Lessor Upon Operating Lease Event of Default. 9.3.1. 9.3.1. If an Operating Lease Event of Default shall occur and be continuing, then the Lessor may proceed by appropriate court action or actions, either at law or in equity, to enforce performance by the Lessee of the applicable covenants and terms of this Agreement or to recover damages for the breach hereof calculated in accordance with Section 9.5. 9.3.2. If any Operating Lease Event of Default shall occur and be continuing, then (i) the Lessor shall have the right (a) to terminate the Lessee’s rights of possession hereunder of all or a portion of the Scooters leased hereunder by the Lessee, (b) to take possession of all or a portion of the Scooters leased by the Lessee hereunder, (c) to peaceably enter upon the premises of the Lessee or other premises where Scooters may be located and take possession of all or a portion of the Scooters and thenceforth hold, possess and enjoy the same free from any right of the Lessee, or its successors or assigns, and to use such Scooters for any purpose whatsoever and (d) to direct delivery by the Servicer of the Certificates of Title (if any) for all or a portion of the Scooters and (ii) the Lessee, at the request of the Administrative Agent, shall return or cause to be returned all Scooters to the Lessor or the Administrative Agent, as the case may be.


 
20 US-DOCS\137537508.5 9.3.3. Without limiting any other rights of the Lessor hereunder, for the purpose of enabling the Lessor to exercise rights and remedies under this Agreement, solely during and for the continuation of an Event of Default, Lessee hereby grants to the Lessor, for the benefit of the Secured Parties, an irrevocable, nonexclusive license (exercisable without payment of royalty or other compensation to the Lessee) to use, license or sublicense (including, without limitation, to the Administrative Agent) any Scooter IP now owned or hereafter acquired by the Lessee, in each case to the extent reasonably necessary to permit the Administrative Agent to take possession of and dispose of the Scooters, and wherever the same may be located (whether or not any license agreement by and between the Lessee and any other Person relating to the use of such Scooter IP may be terminated hereafter), and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof, provided, however, that any such license granted by the Lessor to a third party shall include reasonable and customary terms necessary to preserve the existence, validity and value of the affected Scooter IP, including without limitation, provisions requiring the continuing confidential handling of trade secrets, requiring the use of appropriate notices and prohibiting the use of false notices, protecting and maintaining the quality standards of the trademarks (it being understood and agreed that, without limiting any other rights and remedies of the Lessor under this Agreement or applicable law, nothing in the foregoing license grant shall be construed as granting the Lessor rights in and to such Scooter IP above and beyond (x) the rights to such Scooter IP that the Lessee has reserved for itself and (y) in the case of Scooter IP that is licensed to Lessee by a third party, the extent to which the Lessee has the right to grant a sublicense to such Scooter IP hereunder). For the avoidance of doubt, the Lessee acknowledges and agrees that the Lessor may sublicense the Scooter IP to the Administrative Agent, in accordance with this Section 9.3.3, and accordingly, that the Administrative Agent may further sublicense the Scooter IP during and for the continuation of an Event of Default. Notwithstanding anything to the contrary herein, this Section 9.3.3 shall not grant any rights to use, license, or sublicense the source code of the Bird applications on Android and iOS. 9.3.4. Each and every power and remedy hereby specifically given to the Lessor and its assignees will be in addition to every other power and remedy hereby specifically given or now or hereafter existing at law, in equity or in bankruptcy and each and every power and remedy may be exercised from time to time and simultaneously and as often and in such order as may be deemed expedient by the Lessor. All such powers and remedies will be cumulative, and the exercise of one will not be deemed a waiver of the right to exercise any other or others. No delay or omission of the Lessor in the exercise of any such power or remedy and no renewal or extension of any payments due hereunder will impair any such power or remedy or will be construed to be a waiver of any default or any acquiescence therein. Any extension of time for payment hereunder or other indulgence duly granted to the Lessee will not otherwise alter or affect the Lessor’s rights or the obligations hereunder of the Lessee. The Lessor’s acceptance of any payment after it will have become due hereunder will not be deemed to alter or affect the Lessor’s rights hereunder with respect to any subsequent payments or defaults therein. 9.3.5. Notwithstanding the exercise of any rights or remedies pursuant to this Section 9.3, the Lessor will, nevertheless, have a right to recover from the Lessee any and all amounts as may be then due.


 
21 US-DOCS\137537508.5 9.3.6. Measure of Damages. If an Operating Lease Event of Default occurs and the Lessor or the Administrative Agent exercises the remedies granted to the Lessor or the Administrative Agent under this Section 9, the amount that the Lessor shall be permitted to recover from the Lessee as payment shall be equal to: (i) all Rent for each Scooter leased by the Lessee hereunder to the extent accrued and unpaid as of the earlier of the date of the return to the Lessor of such Scooter, the disposition by the Servicer of such Scooter in accordance with the terms of this Agreement, or the taking possession of such Scooter by the Lessor (at the direction of the Administrative Agent) or the Administrative Agent pursuant to Section 9.3.2 and all other payments payable under this Agreement by the Lessee, accrued and unpaid as of such date; plus (ii) any reasonable and documented out-of-pocket damages and expenses, including reasonable attorneys’ fees and expenses that the Lessor or the Administrative Agent will have sustained by reason of such Operating Lease Event of Default, together with reasonable sums for such attorneys’ fees and such expenses as will be expended or incurred in the seizure, storage, rental or sale of the Scooters leased by the Lessee hereunder or in the enforcement of any right or privilege hereunder or in any consultation or action in such connection, in each case to the extent reasonably attributable to the Lessee; plus (iii) interest from time to time on amounts due from the Lessee and unpaid under this Agreement at a rate equal to the effective interest rate that would be payable by the Lessor on any overdue amounts owed by the Lessor with respect to the Loans, computed from the date of such Operating Lease Event of Default or the date payments were originally due to the Lessor by the Lessee under this Agreement or from the date of each expenditure by the Lessor or the Administrative Agent, as applicable, that is recoverable from the Lessee pursuant to this Section 9, as applicable, to and including the date payments are made by the Lessee. 9.4. Servicer Default. Any of the following events will constitute a default of the Servicer (a “Servicer Default”) as that term is used herein: (i) the failure of the Servicer to comply with or perform any provision of this Agreement or any other Transaction Document that has a Lease Material Adverse Effect with respect to the Servicer, the Lessor or the Lessee, and such default continues for more than thirty (30) consecutive days after the earlier of the date written notice is delivered by the Lessor or the Administrative Agent to the Servicer or the date an Authorized Officer of the Servicer obtains actual knowledge thereof; (ii) an Event of Bankruptcy occurs with respect to the Servicer; (iii) the failure of the Servicer to make any payment when due from it hereunder or under any of the other Transaction Documents when required and, in each case, such failure continues for five (5) consecutive Business Days after the earlier of (a) the date written notice is delivered by the Lessor or the Administrative Agent to the Servicer or (b) the date an Authorized Officer of the Servicer obtains actual knowledge thereof; or


 
22 US-DOCS\137537508.5 (iv) if (I) any representation or warranty made or deemed made by the Servicer in any Transaction Document or any information, or report delivered by the Servicer pursuant to any Transaction Document shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered, (II) such inaccuracy or falsehood has a Lease Material Adverse Effect with respect to the Lessor, the Servicer or the Lessee and (III) the circumstance or condition in respect of which such representation, warranty or writing was inaccurate, incorrect, breached, false or misleading, as the case may be, shall not have been eliminated or otherwise cured for at least thirty (30) consecutive days after the earlier of (x) the date of the receipt of written notice thereof from the Lessor or the Administrative Agent to the Servicer and (y) the date an Authorized Officer of the Servicer obtains actual knowledge of such circumstance or condition. In the event of a Servicer Default, the Administrative Agent shall have the right to replace the Servicer as servicer. 10. INDEMNIFICATION. 10.1. Indemnification. Each of the Servicer and the Lessee agrees to indemnify, defend and hold harmless the Lessor and the Administrative Agent, individually and on behalf of the Secured Parties, and each of their respective agents, for any and all liabilities, losses, damages and expenses that may be incurred as a result of (i) any breach of any of its agreements or covenants under this Agreement and the other Transaction Documents or (ii) any breach of any representation or warranty of the Servicer or Lessee contained in this Agreement or the other Transaction Documents; excluding, however, liabilities, losses, damages, and expenses to the extent a final non-appealable judgment of a court of competent jurisdiction holds that such liabilities, losses, damages, and expenses resulted solely from the fraud, gross negligence, or willful misconduct of the party seeking indemnification hereunder. The obligations of the Servicer and the Lessee in this Section 10.1 shall survive the termination of this Agreement. 10.2. Certain Payments in Respect of Scooters. Notwithstanding Section 10.1, upon discovery by the Lessor, the Servicer, the Lessee or the Administrative Agent that any representation set forth in Section 7.5 was incorrect when made or deemed made, the party discovering such incorrectness shall give prompt written notice to the other parties. Prior to the next Payment Date following its discovery of such breach or notice to such effect to the Servicer and the Lessee, the Servicer and the Lessee shall cure in all material respects the circumstances or condition giving rise to such breach. If the Servicer and the Lessee are unable or unwilling to so cure any such breach, the Servicer and the Lessee shall, as the sole remedy for such breach (i) purchase the related Scooter, (ii) deposit (or cause to be deposited) into the Collection Account on the first Payment Date following discovery or notice of such breach an amount equal to the Adjusted Cost of such Scooter, and (iii) indemnify, defend and hold harmless the Lessor and the Administrative Agent individually and on behalf of the Lenders from and against, any and all loss or liability with respect to, or resulting from, any such Scooter (including the reasonable fees and expenses of counsel). A repurchase of a Scooter in accordance with the immediately preceding sentence shall be deemed to be a cure of a breach of the related representation set forth in Section 7.5 with respect to such Scooter for all purposes hereunder. 11. LIENS AND ASSIGNMENTS. 11.1. Rights of Lessor Assigned to Administrative Agent. Each of the Lessee and the Servicer acknowledges that the Lessor has assigned or will assign all of its rights under this Agreement to


 
23 US-DOCS\137537508.5 the Administrative Agent pursuant to the Loan Agreement. Accordingly, each of the Lessee and the Servicer agrees that: (i) subject to the terms of the Transaction Documents, the Administrative Agent shall have all the rights, powers, privileges and remedies of the Lessor hereunder, and the Lessee’s and the Servicer’s obligations hereunder (including the payment of Rent and all other amounts payable hereunder) shall not be subject to any claim or defense that the Lessee or the Servicer may have against the Lessor (other than the defense of payment actually made) and shall be absolute and unconditional and shall not be subject to any abatement, setoff, counterclaim, deduction or reduction for any reason whatsoever. Specifically, each of the Lessee and the Servicer agrees that, upon the occurrence of an Operating Lease Event of Default or a Servicer Default, the Administrative Agent may exercise (for and on behalf of the Lessor) any right or remedy against the Lessee or the Servicer provided for herein and neither the Lessee nor the Servicer will interpose as a defense that such claim should have been asserted by the Lessor; (ii) upon the delivery by the Administrative Agent or the Administrative Agent of any notice to the Lessee stating that an Operating Lease Event of Default or to the Servicer stating that a Servicer Default has occurred, the Lessee or the Servicer will, if so requested by the Administrative Agent, treat the Administrative Agent for all purposes as the Lessor hereunder and in all respects comply with all obligations under this Agreement that are asserted by the Administrative Agent, as the Lessor hereunder, irrespective of whether the Lessee or the Servicer has received any such notice from the Lessor; and (iii) the Lessee acknowledges that pursuant to this Agreement it has agreed to make all payments of Rent hereunder (and any other payments hereunder) directly to the Administrative Agent for deposit in the Collection Account. 11.2. Right of the Lessor to Assign this Agreement. The Lessor shall have the right to finance the acquisition and ownership of Scooters by selling or assigning its right, title and interest in this Agreement, including, without limitation, in moneys due from the Lessee and any third party under this Agreement, to the Administrative Agent for the benefit of the Lenders; provided, however, that any such sale or assignment shall be subject to the rights and interest of the Lessee in the Scooters, including but not limited to the Lessees’ right of quiet and peaceful possession of such Scooters as set forth in Section 5.5 hereof, and under this Agreement. 11.3. Limitations on the Right of the Lessee and the Servicer to Assign this Agreement. (i) Neither the Lessee nor the Servicer shall assign this Agreement or any of its rights hereunder to any other party; provided, however, that (i) the Lessee may rent the Scooters leased by the Lessee hereunder in connection with its business and (ii) the Lessee may delegate to one or more of its Affiliates or fleet managers the performance of any of the Lessee’s obligations as Lessee hereunder (but the Lessee shall remain fully liable for its obligations hereunder). Any purported assignment in violation of this Section 11.3 shall be void and of no force or effect. Nothing contained herein shall be deemed to restrict the right of the Lessee to acquire or dispose of, by purchase, lease, financing, or otherwise, scooters that are not subject to the provisions of this Agreement.


 
24 US-DOCS\137537508.5 (ii) Notwithstanding anything herein to the contrary, the Lessee (and the Servicer, if the Servicer is the same Person as the Lessee) may enter into a transaction constituting a Qualifying IPO so long as, upon completion of such Qualifying IPO, the Lessee (and the Servicer, if the Servicer is the same Person as the Lessee) is the surviving entity or the entity that survives such Qualifying IPO expressly assumes all obligations of the Lessee (and the Servicer, if the Servicer is the same Person as the Lessee) hereunder. Following the completion of any such Qualifying IPO, all references herein to the Lessee (and the Servicer, if the Servicer is the same Person as the Lessee) shall be deemed to refer to the surviving entity. 11.4. Liens. The Lessor may grant security interests in the Scooters leased by the Lessee hereunder without consent of the Lessee. Except for Permitted Liens, the Lessee shall keep all Scooters free of all Liens arising during the Term. If on the Operating Lease Expiration Date for any Scooter, there is a Lien on such Scooter, the Lessor may, in its discretion, remove such Lien and any sum of money that may be paid by the Lessor in release or discharge thereof, including reasonable attorneys’ fees and costs, will be paid by the Lessee upon demand by the Lessor. 12. NON-LIABILITY OF LESSOR. AS BETWEEN THE LESSOR AND THE LESSEE, ACCEPTANCE FOR LEASE OF EACH SCOOTER PURSUANT TO SECTION 2.1 SHALL CONSTITUTE THE LESSEE’S ACKNOWLEDGMENT AND AGREEMENT THAT THE LESSEE HAS FULLY INSPECTED SUCH SCOOTER, THAT SUCH SCOOTER IS IN GOOD ORDER AND CONDITION AND IS OF THE MANUFACTURE, DESIGN, SPECIFICATIONS AND CAPACITY SELECTED BY THE LESSEE, THAT THE LESSEE IS SATISFIED THAT THE SAME IS SUITABLE FOR THIS USE. THE LESSEE ACKNOWLEDGES THAT THE LESSOR IS NOT A MANUFACTURER OR AGENT THEREOF OR PRIMARILY ENGAGED IN THE SALE OR DISTRIBUTION OF SCOOTERS. THE LESSEE ACKNOWLEDGES THAT THE LESSOR MAKES NO REPRESENTATION, WARRANTY OR COVENANT, EXPRESS OR IMPLIED IN ANY SUCH CASE, AS TO THE FITNESS, SAFENESS, DESIGN, MERCHANTABILITY, CONDITION, QUALITY, DURABILITY, SUITABILITY, CAPACITY OR WORKMANSHIP OF THE SCOOTERS IN ANY RESPECT OR IN CONNECTION WITH OR FOR ANY PURPOSES OR USES OF THE LESSEE AND MAKES NO REPRESENTATION, WARRANTY OR COVENANT, EXPRESS OR IMPLIED IN ANY SUCH CASE, THAT THE SCOOTERS WILL SATISFY THE REQUIREMENTS OF ANY LAW OR ANY CONTRACT SPECIFICATION, AND AS BETWEEN THE LESSOR AND THE LESSEE, THE LESSEE AGREES TO BEAR ALL SUCH RISKS AT ITS SOLE COST AND EXPENSE. THE LESSEE SPECIFICALLY WAIVES ALL RIGHTS TO MAKE CLAIMS AGAINST THE LESSOR AND ANY SCOOTER FOR BREACH OF ANY WARRANTY OF ANY KIND WHATSOEVER, AND THE LESSEE LEASES EACH SCOOTERS “AS IS.” UPON THE LESSOR’S ACQUISITION OF ANY SCOOTER IDENTIFIED ON ANY LEASED SCOOTER SCHEDULE, LESSOR SHALL IN NO WAY BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES OR INCONVENIENCE RESULTING FROM ANY DEFECT IN OR LOSS, THEFT, DAMAGE OR DESTRUCTION OF ANY SCOOTER OR OF THE CARGO OR CONTENTS THEREOF OR THE TIME CONSUMED IN RECOVERY REPAIRING, ADJUSTING, SERVICING OR REPLACING THE SAME AND THERE SHALL BE NO ABATEMENT OR APPORTIONMENT OF RENTAL AT SUCH TIME. THE LESSOR SHALL NOT BE LIABLE FOR ANY FAILURE TO PERFORM ANY PROVISION HEREOF RESULTING FROM FIRE OR OTHER CASUALTY, NATURAL DISASTER, RIOT OR OTHER CIVIL UNREST, WAR, TERRORISM, STRIKE OR OTHER LABOR DIFFICULTY, GOVERNMENTAL REGULATION OR RESTRICTION, OR ANY CAUSE BEYOND THE LESSOR’S DIRECT


 
25 US-DOCS\137537508.5 CONTROL. IN NO EVENT SHALL THE LESSOR BE LIABLE FOR ANY INCONVENIENCES, LOSS OF PROFITS OR ANY OTHER SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHATSOEVER OR HOWSOEVER CAUSED (INCLUDING RESULTING FROM ANY DEFECT IN OR ANY THEFT, DAMAGE, LOSS OR FAILURE OF ANY SCOOTER). 13. [RESERVED]. 14. SUBMISSION TO JURISDICTION. The Lessor or the Administrative Agent may enforce any claim arising out of this Agreement in any state or federal court having subject matter jurisdiction, including, without limitation, any state or federal court located in the State of New York. For the purpose of any action or proceeding instituted with respect to any such claim, the Lessee and the Servicer each hereby irrevocably submits to the jurisdiction of such courts. The Lessee and the Servicer further irrevocably consents to the service of process out of said courts by mailing a copy thereof, by registered mail, postage prepaid, to the Lessee or the Servicer and agrees that such service, to the fullest extent permitted by law, (i) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (ii) shall be taken and held to be valid personal service upon and personal delivery to it. Nothing herein contained shall affect the right of the Administrative Agent and the Lessor to serve process in any other manner permitted by law or preclude the Lessor or the Administrative Agent from bringing an action or proceeding in respect hereof in any other country, state or place having jurisdiction over such action. The Lessee and the Servicer each hereby irrevocably waives, to the fullest extent permitted by law, any objection which it may have or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court located in the State of New York and any claim that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum. 15. GOVERNING LAW. THIS AGREEMENT, AND ALL MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAW. 16. JURY TRIAL. EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR ANY OTHER RELATED DOCUMENT TO WHICH IT IS A PARTY, OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION THEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT OR ANY RELATED TRANSACTION, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. 17. NOTICES. All notices, requests and other communications to any party hereunder shall be in writing (including facsimile transmission or similar writing) and shall be given to such party, addressed to it, at its address or telephone number set forth on the signature pages below, or at such other address or telephone number as such party may hereafter specify for the purpose by notice to the other party. Copies of notices, requests and other communications delivered to the Administrative Agent, the Lessee, the Servicer or the Lessor pursuant to the foregoing sentence shall be sent to the following addresses: Administrative Agent:


 
26 US-DOCS\137537508.5 MidCap Financial Trust c/o MidCap Financial Services, LLC, as servicer 7255 Woodmont Avenue, Suite 300 Bethesda, Maryland 20814 Attn: Account Manager for Bird transaction Facsimile: 301-941-1450 Email: notices@midcapfinancial.com With a copy to: MidCap Financial Trust c/o MidCap Financial Services, LLC, as servicer 7255 Woodmont Avenue, Suite 300 Bethesda, Maryland 20814 Attn: General Counsel Facsimile: 301-941-1450 Email: legalnotices@midcapfinancial.com Lessor, Lessee, and/or Servicer: c/o Bird Rides, Inc. 8605 Santa Monica Blvd., #20388 West Hollywood, CA 90069 Attn: Michael Washinushi, Chief Financial Officer Email: mwashinushi@mac.com cc: birdlegal@bird.co with a copy to: Latham & Watkins LLP 355 S. Grand Ave., #100 Los Angeles, CA 90071 Attn: Mark O. Morris Email: mark.morris@lw.com Each such notice, request or communication shall be effective when received at the address specified below. Copies of all notices must be sent by first class mail promptly after transmission by email. 18. ENTIRE AGREEMENT. This Agreement and the other agreements specifically referenced herein constitute the entire agreement among the parties hereto and supersede any prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they related in any way to the subject matter hereof. This Agreement, together with the Leased Scooter Schedules and any other related documents attached to this Agreement (including, for the avoidance of doubt, all related joinders, exhibits, annexes, schedules, attachments and appendices), in each case solely to the extent to which such schedules and documents relate to Scooters will constitute the entire agreement regarding the leasing of Scooters by the Lessor to the Lessee. 19. MODIFICATION AND SEVERABILITY. The terms of this Agreement will not be waived, altered, modified, amended, supplemented or terminated in any manner whatsoever unless the same shall be in writing and signed and delivered by the Lessor, the Servicer and the Lessee, subject to any restrictions on such waivers, alterations, modifications, amendments, supplements


 
27 US-DOCS\137537508.5 or terminations set forth in the Loan Agreement. If any part of this Agreement is not valid or enforceable according to law, all other parts will remain enforceable. 20. SURVIVABILITY. In the event that, during the term of this Agreement, the Lessee becomes liable for the payment or reimbursement of any obligations, claims or taxes pursuant to any provision hereof, such liability will continue, notwithstanding the expiration or termination of this Agreement, until all such amounts are paid or reimbursed by or on behalf of the Lessee. 21. HEADINGS. Section headings used in this Agreement are for convenience of reference only and shall not affect the construction of this Agreement. 22. EXECUTION IN COUNTERPARTS; ELECTRONIC EXECUTION. This Agreement may be executed manually or electronically in any number of counterparts (including by facsimile or electronic transmission (including.pdf file,.jpeg file, Adobe Sign, or DocuSign), each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart signature page of this Agreement by facsimile or any such electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement and shall have the same legal validity and enforceability as a manually executed signature to the fullest extent permitted by applicable law. Any electronically signed document delivered via email from a person purporting to be an authorized officer shall be considered signed or executed by such authorized officer on behalf of the applicable person and will be binding on all parties hereto to the same extent as if it were manually executed. 23. THIRD-PARTY BENEFICIARIES. The parties hereto acknowledge that the Administrative Agent (for the benefit of itself and the Secured Parties and their assigns) shall be a third-party beneficiary hereunder. 24. INTERCREDITOR AGREEMENT. Notwithstanding anything herein to the contrary, this Agreement and the exercise of any right or remedy by the Lessor and/or the Administrative Agent hereunder are subject to the provisions of the Intercreditor Agreement. In the event of any conflict or inconsistency between the provisions of the Intercreditor Agreement and this Agreement, the provisions of the Intercreditor Agreement shall govern and control. [REMAINDER OF THE PAGE LEFT INTENTIONALLY BLANK]


 
[Signature Page to Master Scooter Operating Lease] US-DOCS\137537508.5 IN WITNESS WHEREOF, the parties have executed this Agreement or caused it to be executed by their respective officers thereunto duly authorized as of the day and year first above written. LESSOR: BIRD US OPCO, LLC By: Name: Shane Torchiana Title: Chief Executive Officer LESSEE AND SERVICER: BIRD RIDES, INC. By: Name: Shane Torchiana Title: Chief Executive Officer


 
Schedule I - 1 US-DOCS\137537508.5 SCHEDULE I Definitions “Act” has the meaning specified in Section 7.6. “Adjusted Cost” means, with respect to a Scooter, an amount equal to the product of (i) the Advance Rate for such Scooter and (ii) the Cost of such Scooter. “Affected Scooter” has the meaning specified in Section 4.5. “Affiliate” means, with respect to any specified Person, another Person that directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the Person specified. For purposes of this definition, “control” means the power to direct the management and policies of a Person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise; and “controlled” and “controlling” have meanings correlative to the foregoing. “Authorized Officer” means, as to the Lessee or any of its Affiliates, any of (i) the President, (ii) Chief Executive Officer, (iii) the Chief Financial Officer, (iv) General Counsel, (v) the Treasurer, (vi) any Assistant Treasurer, or (vii) any Vice President in the tax, legal, or treasury department, in each case of the Lessee or such Affiliate, as applicable. “Bankruptcy Code” means The Bankruptcy Reform Act of 1978, as amended from time to time, as codified as 11 U.S.C. Section 101 et seq. “Basic Scooter Information” means the following terms specified by the Lessee in a Leased Scooter Schedule: a list of the scooters the Lessee desires to be made available by the Lessor to the Lessee for lease as “Scooters” and, with respect to each such scooter, the make, model, and requested lease commencement date of each such scooter. “Cash Equivalents” shall mean, as to any Person, (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than six months from the date of acquisition, (ii) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within six months from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either Standard & Poor’s Ratings Services, a division of McGraw-Hill, Inc. (“S&P”) or Moody’s Investors Service, Inc. (“Moody’s”), (iii) Dollar denominated time deposits, certificates of deposit and bankers acceptances of any Lender or any commercial bank having, or which is the principal banking subsidiary of a bank holding company having, a long-term unsecured debt rating of at least “A” or the equivalent thereof from S&P or “A2” or the equivalent thereof from Moody’s with maturities of not more than six months from the date of acquisition by such Person, (iv) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (i) above entered into with any bank meeting the qualifications specified in clause (iii) above, (v) commercial paper issued by any Person incorporated in the United States rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s and in each case maturing not more than six months after the date of acquisition by such Person and (vi) investments in money market funds substantially all of whose assets are comprised of securities of the types described in clauses (i) through (v) above.


 
Schedule I - 2 US-DOCS\137537508.5 “Certificate of Title” means, with respect to any Scooter, the certificate of title or similar evidence of ownership applicable to such Scooter duly issued in accordance with the certificate of title act or other applicable statute of the jurisdiction applicable to such Scooter as determined by the Servicer or the Collateral Servicer, as applicable. “Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time and any successor statute of similar import, in each case as in effect from time to time. References to sections of the Code also refer to any successor or replacement sections. “Collateral” has the meaning specified in Section 2(b). “Contractual Obligation” means, with respect to any Person, any provision of any security issued by that Person or of any material indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any material portion of its properties is bound or to which it or any material portion of its properties is subject. “Controlled Group” means, with respect to any Person, such Person, whether or not incorporated, and any corporation, trade or business that is, along with such Person, a member of a controlled group of corporations or a controlled group of trades or businesses as described in Sections 414(b) and (c), respectively, of the Code. “Copyright Licenses” shall mean any and all license agreements and covenants not to sue with respect to any Copyright (whether such Lessor is licensee or licensor thereunder). “Copyrights” shall mean all United States copyrights and all Mask Works (as defined under 17 U.S.C. 901 of the U.S. Copyright Act), whether registered or unregistered and, with respect to any and all of the foregoing: (i) all registrations and applications therefor, (ii) all extensions and renewals thereof, (iii) the right to sue or otherwise recover for any past, present and future infringement or other violation thereof, and (iv) all proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages and proceeds of suit now or hereafter due and/or payable with respect thereto. “Customer Deposits” means, as of any date of determination, the aggregate amount of customer deposits that would be recognized as such on the consolidated balance sheet of the Lessee; provided, that if such Customer Deposits constitute Restricted cash, the amount of Customer Deposits for such date of determination shall be reduced dollar-for-dollar by the amount of such Restricted cash. “Dividend” shall mean, with respect to any Person, that such Person has declared or paid a dividend, distribution or returned any equity capital to its stockholders, partners or members or authorized or made any other distribution, payment or delivery of property (other than common Equity Interests of such Person) or cash to its stockholders, partners or members in their capacity as such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for a consideration any shares of any class of its capital stock or any other Equity Interests outstanding on or after the Closing Date (or any options or warrants issued by such Person with respect to its capital stock or other Equity Interests), or set aside any funds for any of the foregoing purposes. “Earnout Consideration” means the aggregate Per Share Earnout Consideration (as defined in the Business Combination Agreement) payable pursuant to the terms of the Business Combination Agreement.


 
Schedule I - 3 US-DOCS\137537508.5 “Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA (whether or not subject to ERISA) which is sponsored, maintained or contributed to by, or required to be contributed by, the Lessee. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, in each case as in effect from time to time. References to sections of ERISA also refer to any successor sections. “ERISA Event” means (i) a “reportable event” within the meaning of Section 4043(c) of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for 30-day notice to the PBGC has been waived by regulation); (ii) the failure to meet the minimum funding standard of Sections 412 and 430 of the Internal Revenue Code and Sections 302 and 303 of ERISA with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code and Section 302(c) of ERISA) or the failure to make by its due date a required installment under Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by the Lessee or its ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to the Lessee or its ERISA Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on the Lessee or its ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of the Lessee or its ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefore, or the receipt by the Lessee or its ERISA Affiliates of notice from any Multiemployer Plan that it is insolvent pursuant to Section 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) receipt from the Internal Revenue Service of written notice of the failure of any Pension Plan to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; or (ix) the imposition of a lien pursuant to Section 430(k) of the Internal Revenue Code or Section 303(k) of ERISA or a violation of Section 436 of the Internal Revenue Code. “Event of Bankruptcy” shall be deemed to have occurred with respect to a Person if: (a) a case or other proceeding shall be commenced, without the application or consent of such Person, in any court, seeking the liquidation, reorganization, debt arrangement, dissolution, winding up, or composition or readjustment of debts of such Person, the appointment of a trustee, receiver, custodian, liquidator, assignee, sequestrator or the like for such Person or all or any substantial part of its assets, or any similar action with respect to such Person under any law relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts, and such case or proceeding shall continue undismissed, or unstayed and in effect, for a period of sixty (60) consecutive days; or an order for relief in respect of such Person shall be entered in an involuntary case under the federal bankruptcy laws or other similar laws now or hereafter in effect; or (b) such Person shall commence a voluntary case or other proceeding under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law now or hereafter in effect, or shall consent to the appointment of or taking possession


 
Schedule I - 4 US-DOCS\137537508.5 by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) for such Person or for any substantial part of its property, or shall make any general assignment for the benefit of creditors; or (c) the board of directors of such Person (if such Person is a corporation or similar entity) shall vote to implement any of the actions set forth in clause (b) above. “Exchange Act” means the Securities Exchange Act of 1934, as amended. “Fleet Management Contracts” means those certain fleet management contracts in existence as of the Closing Date and otherwise entered into from time to time by Bird Rides, Inc. pursuant to which the Fleet Managers party thereto agree to maintain the Scooters in good working order, amongst other things. “Fleet Manager” means those individuals or entities party to a Fleet Management Contract. “Intellectual Property” shall mean, all intellectual property arising under the laws of the United States, including without limitation, Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks, Trademark Licenses, trade secrets and the right to sue or otherwise recover for any past, present and future infringement, dilution, misappropriation, or other violation thereof, including the right to receive all proceeds therefrom, including without limitation license fees, royalties, income, payments, claims, damages and proceeds of suit, now or hereafter due and/or payable with respect thereto. “Lease Material Adverse Effect” means, with respect to any party hereto and any occurrence, event or condition applicable to such party: (a) a material adverse effect on the ability of such party to perform its obligations under this Agreement, the Loan Agreement or any other Transaction Document; (b) a material adverse effect on the Lessor’s ownership interest in the Scooters or on the ability of the Lessor to grant a Lien on any after-acquired property that would constitute Collateral; (c) a material adverse effect on the validity or enforceability of this Agreement; or (d) a material adverse effect on the validity, perfection or priority of the lien of the Administrative Agent in the Collateral. “Leased Scooter Schedule” has the meaning specified in Section 2.1(c). “Lessee” has the meaning set forth in the introductory paragraph to this Agreement. “Lessee Account” has the meaning specified in Section 5.2.2. “Lessor” has the meaning set forth in the introductory paragraph to this Agreement. “Lien” means, when used with respect to any Person, any interest in any real or personal property, asset or other right held, owned or being purchased or acquired by such Person that secures payment or performance of any obligation, and shall include any mortgage, lien, pledge, encumbrance, charge, retained security title of a conditional vendor or lessor, or other security interest of any kind, whether arising under a security agreement, mortgage, lease, deed of trust, chattel mortgage, assignment, pledge, retention or security title, financing or similar statement, or notice or arising as a matter of law,


 
Schedule I - 5 US-DOCS\137537508.5 judicial process or otherwise; provided, that the foregoing shall not include, as of any date of determination, any interest in or right with respect to any Scooter that is being rented (as of such date) to any Rider, which interest or right secures payment or performance of any obligation of such Rider. “Liquidity” shall mean, in respect of any day, the amount of Unrestricted cash and Unrestricted Cash Equivalents of the Lessee and all of its direct and indirect Subsidiaries on a consolidated basis (for the avoidance of doubt, including but not limited to Unrestricted cash and Unrestricted Cash Equivalents located outside of the U.S.) on such day. “Minimum Liquidity Covenant Level Amount” shall mean (i) prior to the Amendment No. 2 Initial Funding Date, $20,000,000 and (ii) from and after the Amendment No. 2 Initial Funding Date, the lesser of (A) 50% of the outstanding principal amount of the Loans and (B) $500,000. “Minimum Tangible Net Worth Covenant Level Amount” shall mean (i) prior to the Amendment No. 6 Effective Date, an amount equal to 75% of the outstanding principal amount of the Loans at such time and (ii) from and after the Amendment No. 6 Effective Date, an amount equal to 50% of the outstanding principal amount of the Loans at such time. “Monthly Base Rent” has the meaning specified in Section 4.2. “Monthly Disposition Report” has the meaning specified in Section 4.5. “Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” which is sponsored, maintained or contributed to by, or required to be contributed by, the Lessee or its ERISA Affiliates that is defined in Section 3(37) of ERISA. “Operating Lease Commencement Date” has the meaning specified in Section 3.2. “Operating Lease Expiration Date” has the meaning specified in Section 3.2. “Operating Lease Event of Default” has the meaning specified in Section 9.1. “Other Lessee Account” means any account owned by the Lessee and identified as such to the Administrative Agent pursuant to a written notice and that is, unless otherwise consented to in writing by the Administrative Agent, free and clear of any Adverse Claim other than pursuant to clause (iii) of the definition of Permitted Liens. “Parent” means Bird Global, Inc. or any other successor entity permitted hereunder. “Patent Licenses” shall mean all license agreements or covenants not to sue with respect to any Patent (whether such Lessor is licensee or licensor thereunder). “Patents” shall mean all United States patents and certificates of invention, or industrial property designs, and applications for any of the foregoing, including, without limitation: (i) each patent and patent application, (ii) all reissues, divisions, continuations, continuations-in-part and extensions thereof, (iii) all patentable inventions described and claimed therein, (iv) the right to sue or otherwise recover for any past, present and future infringement or other violation thereof, and (v) all proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/ or payable with respect thereto.


 
Schedule I - 6 US-DOCS\137537508.5 “Payment Information” means, with respect to any payment in respect of a scooter or the use of a scooter received by the Lessee or the Lessor (i) the amount of each receipt, (ii) the Scooter to which such receipt relates, (iii) the nature of such payment by or on behalf of the related user or other amount, (iv) the date of receipt of such payment or other amount and (v) whether such payment or other amount relates to a Scooter leased by the Lessee or any other scooter. “Paypal Account” means that certain account in the name of the Lessee and held with the online payment processing platform known as “Paypal”, as disclosed to the Lessor prior to the date hereof. “PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor thereto). “Pension Plan” means any Employee Benefit Plan which is sponsored, maintained or contributed to by, or required to be contributed by, the Lessee or its ERISA Affiliates, other than a Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA. “Permitted Lien” means (i) Liens for current taxes not delinquent or for taxes being contested in good faith and by appropriate proceedings, and with respect to which adequate reserves have been established, and are being maintained, in accordance with GAAP, (ii) mechanics’, materialmen’s, landlords’, warehousemen’s and carriers’ Liens, and other Liens imposed by law, securing obligations that are not more than thirty days past due or are being contested in good faith and by appropriate proceedings and with respect to which adequate reserves have been established, and are being maintained, in accordance with GAAP, (iii) Liens in favor of banking institutions arising as a matter of law or under general terms and conditions encumbering deposits (including the right of set off) and which are within the general parameters customary in the banking industry, (iv) Liens in favor of the Administrative Agent pursuant to the Loan Agreement, and (v) Liens in favor of the Note Collateral Agent pursuant to the Note Purchase Agreement and the other Note Documents. “Person” means any natural person, corporation, business trust, joint venture, association, company, partnership, limited liability company, joint stock company, corporation, trust, unincorporated organization or Governmental Authority. “Plan” means any “employee pension benefit plan”, as such term is defined in ERISA, that is subject to Title IV of ERISA (other than a “multiemployer plan”, as defined in Section 4001 of ERISA) and to which any company in the Controlled Group has liability, including any liability by reason of having been a substantial employer within the meaning of Section 4063 of ERISA for any time within the preceding five years or by reason of being deemed to be a contributing sponsor under Section 4069 of ERISA. “Potential Operating Lease Event of Default” means any occurrence or event that, with the giving of notice, the passage of time or both, would constitute an Operating Lease Event of Default. “Potential Servicer Default” means any occurrence or event that, with the giving of notice, the passage of time or both, would constitute an Servicer Default. “Proceeds” has the meaning specified in Section 9-102(a)(64) of the applicable UCC. “Pro Rata Share” means, as of any date with respect to a Scooter, the percentage equivalent of a fraction, the numerator of which is the Cost of such Scooter and the denominator of which is the Cost of all Scooters (including such Scooter) owned by the Lessor on such date.


 
Schedule I - 7 US-DOCS\137537508.5 “Quarterly Rider Incentive / Contra Pay True-Up Amount” has the meaning specified in Section 4.4. “Rent” means Monthly Base Rent. “Requirement of Law” means, with respect to any Person or any of its property, the certificate of incorporation or articles of association and by-laws, limited liability company agreement, partnership agreement or other organizational or governing documents of such Person or any of its property, and any law, treaty, rule or regulation, or determination of any arbitrator or Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject, whether federal, state or local. “Restricted” shall mean, when referring to cash or Cash Equivalents of the Lessee, that such cash or Cash Equivalents (i) appear (or would be required to appear) as “restricted” as required by GAAP on a consolidated balance sheet of the Lessee, (ii) are subject to any Lien (other than pursuant to clause (iii) of the definition of Permitted Lien) in favor of any Person other than the Administrative Agent for the benefit of the Secured Parties or (iii) are not otherwise generally available for use by the Lessee. “Rider” means any individual that rents and rides a Scooter using the Bird app. “Rider Contracts” means the Bird Rental Agreement, Waiver of Liability, and Release that is available at https://www.bird.co/agreement, which may be updated from time to time. “Scooter IP” means any of the Intellectual Property used in the operation of the business of the Lessee, but excluding any proprietary source code used therein. “Scooters” means, as of any date of determination, each scooter leased to the Lessee hereunder. “SEC” means the Securities and Exchange Commission. “Servicer” has the meaning specified in the introductory paragraph to this Agreement. “Servicer Default” has the meaning specified in Section 9.5. “Scooter Lease Commencement Date” has the meaning specified in Section 3.1(a). “Scooter Lease Term” has the meaning specified in Section 3.1(b). “Stripe Account” means that certain account in the name of the Lessee and held with the online payment processing platform known as “Stripe”, as disclosed to the Lessor prior to the date hereof. “Tangible Net Worth” means, with respect to any date of determination, (x) an amount equal to total assets of the Lessee minus intangible assets and total liabilities of the Lessee, in each case as shown on a consolidated balance sheet of the Lessee as of such date of determination, plus (y) any liabilities consisting of the Earnout Consideration, SPAC Warrants (as defined in the Business Combination Agreement), and Private Placement Warrants (as defined in the Business Combination Agreement), in each case (1) to the extent subtracted from Tangible Net Worth pursuant to clause (x) above, and (2) so long as such liability is a non-monetary liability, plus (z) an amount equal to 50% of Customer Deposits as of such date of determination. “Tariff Rebate Amount” has the meaning specified in Section 4.6.


 
Schedule I - 8 US-DOCS\137537508.5 “Term” has the meaning specified in Section 3.2. “Trademark Licenses” shall mean any and all license agreements or covenants not to sue with respect to any Trademark or permitting co-existence with respect to a Trademark (whether such Lessor is licensee or licensor thereunder). “Trademarks” shall mean all United States trademarks, trade names, trade dress, Internet domain names, service marks, certification marks, logos, and other source identifiers, whether or not registered, and with respect to any and all of the foregoing: (i) all registrations and applications therefor, (ii) all extensions or renewals of any of the foregoing, (iii) all of the goodwill of the business connected with the use of and symbolized by any of the foregoing, (iv) the right to sue or otherwise recover for any past, present and future infringement, dilution or other violation of any of the foregoing, and (v) all proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect thereto. “UCC” means the Uniform Commercial Code as in effect from time to time in the specified jurisdiction or any applicable jurisdiction, as the case may be. “Unrestricted” shall mean, when referring to cash or Cash Equivalents of the Lessee, that such cash or Cash Equivalents are not Restricted.


 
US-DOCS\137537508.5


 

EXECUTION VERSION 1 THIRD AMENDED AND RESTATED EMEA GUARANTY AND PLEDGE AGREEMENT This THIRD AMENDED AND RESTATED EMEA GUARANTY AND PLEDGE AGREEMENT (the “EMEA Guaranty”), dated as of December 30, 2022, made by Bird Rides International Holding, Inc. (the “EMEA Guarantor”), is made in favor of MidCap Financial Trust, as Administrative Agent) (the “Administrative Agent”) and the Lenders (the “Lenders” collectively with the Administrative Agent and the other Secured Parties, the “Beneficiaries”) under the Credit Agreement (as defined below). RECITALS 1. Bird US Opco, LLC as Borrower (the “Borrower”), Bird US Holdco, LLC, as Guarantor (the “Holdco Guarantor”), and the Beneficiaries have entered into the Loan and Security Agreement dated as of April 27, 2021 (as amended, supplemented or modified from time to time, the “Credit Agreement”). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement. 2. In connection with Amendment No. 8 to Loan and Security Agreement, dated as of the date hereof, by and among the Borrower, the Holdco Guarantor, and the Administrative Agent (the “Eighth Amendment”), which amends the Credit Agreement, the Borrower is required to provide the Beneficiaries with an amended guarantee duly executed by the EMEA Guarantor, and this EMEA Guaranty is being delivered in satisfaction of such requirement. 3. The EMEA Guarantor derives substantial direct and indirect benefits from the extensions of credit contemplated by the Credit Agreement. 4. The EMEA Guarantor previously entered into that certain Second Amended and Restated EMEA Guaranty and Pledge Agreement dated as of October 7, 2022 in favor of the Beneficiaries under the Credit Agreement (the “Existing EMEA Guaranty”), and desires to amend and restate the Existing EMEA Guaranty. GUARANTEE As an inducement to the Beneficiaries to extend credit to the Borrower in respect of the Loans and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the EMEA Guarantor agrees as follows: 1. Guarantee. The EMEA Guarantor hereby unconditionally guarantees (as primary obligor and not merely as surety) to each Beneficiary and its successors and permitted assigns the punctual and complete payment of all amounts due and payable and performance of all other obligations in respect of the Loans (now or hereafter arising, by acceleration or otherwise) by the Borrower under the Credit Agreement (the “Guaranteed Obligations”) without regard to any defense of any kind which the EMEA Guarantor may have or assert, and without abatement, suspension, deferment or diminution of any event or condition whatsoever.


 
2 2. Guarantee Absolute and Unconditional. The EMEA Guarantor hereby agrees that its obligations shall be absolute, irrevocable and unconditional and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by: (a) any failure or delay to enforce the provisions of the Credit Agreement; (b) the perfection, release or extent of any Collateral or EMEA Guarantor Collateral or any failure to realize on any Collateral or EMEA Guarantor Collateral; (c) any waiver, modification or consent to departure from, or amendment of the Credit Agreement; (d) the invalidity, illegality or unenforceability of the Credit Agreement or the Guaranteed Obligations; (e) any change in the corporate existence, structure or ownership of the Borrower or the EMEA Guarantor; or (f) any other circumstances (other than payment in full) which may otherwise constitute a legal or equitable discharge of a surety or guarantor. This EMEA Guaranty constitutes a guarantee of payment when due and not of collection. The Beneficiaries have no duty or responsibility whatsoever to the EMEA Guarantor and make no representation or warranty in respect of the management and maintenance of the Guaranteed Obligations or any collateral therefor. 3. Parallel Debt. For the purpose of taking and ensuring the continuing validity and enforceability of the security created under the EMEA Dutch Pledge, the EMEA Guarantor hereby agrees and covenants with the Administrative Agent that it shall pay to the Administrative Agent an amount equal to, and in the currency of, any sums owing by it to a Secured Party under any Transaction Document (the “Principal Obligations”) as and when the same fall due for payment under the relevant Transaction Document (the “Parallel Debt”). The Parallel Debt will become due and payable as and when one or more of the Principal Obligations of the EMEA Guarantor becomes due and payable. Notwithstanding anything to the contrary in any Transaction Document, the Administrative Agent shall have its own independent right to demand payment of the Parallel Debt by the Secured Parties and the Administrative Agent acts in its own name and not as a trustee, and its claims in respect of the Parallel Debt shall not be held on trust. The rights of the Secured Parties to receive payment of the Principal Obligations are several from the rights of the Administrative Agent to receive payment of the Parallel Debt; provided that the payment by the EMEA Guarantor of its Parallel Debt to the Administrative Agent in accordance with this paragraph and the immediately preceding paragraph shall be a good discharge of the corresponding Principal Obligations and the payment by the EMEA Guarantor of its corresponding Principal Obligations in accordance with the Transaction Documents shall be a good discharge of the relevant Parallel Debt. In the event of a good discharge of the Principal Obligations, the Administrative Agent and the Secured Parties shall not be entitled any more to demand payment of the corresponding Parallel Debt and such


 
3 Parallel Debt shall cease to exist. The amount of the Parallel Debt of the EMEA Guarantor shall at all times be equal to the amount of its Principal Obligations. This shall apply accordingly in the event of a good discharge of the Parallel Debt to the corresponding Principal Obligations. Despite the foregoing, any payment under the Loan Documents shall be made to the Administrative Agent, unless expressly stated otherwise in the Transaction Documents (save for this paragraph and the immediately preceding paragraph) or unless the Administrative Agent directs such payment to be made to the Administrative Agent. 4. Waiver by Guarantor. The EMEA Guarantor agrees that the Beneficiaries may at any time and from time to time, either before or after the maturity thereof, without notice to or further consent of the EMEA Guarantor, extend the time of payment of, exchange or surrender any collateral for, or renew any of the Guaranteed Obligations, and may also make any agreement with Borrower for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, for any modification of the terms thereof or of any agreement between any of the Beneficiaries and Borrower without in any way impairing or affecting this EMEA Guaranty. The EMEA Guarantor hereby waives notice of acceptance of this EMEA Guaranty, diligence, acceleration, presentment, notice of default or demand of payment to or upon the Borrower or the EMEA Guarantor, filing of claims with a court in the event of merger or bankruptcy of the Borrower, any right or requirement to proceed first against the Borrower, any protest or notice with respect to the Credit Agreement or the obligations created or evidenced thereby and all demands whatsoever, any exchange, sale or surrender of, or realization on, any other guarantee or any collateral, and any and all other notices and surety defenses (other than payment in full) whatsoever. The Beneficiaries shall not be obligated to file any claim relating to the Guaranteed Obligations in the event that Borrower becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Beneficiaries to so file shall not affect the EMEA Guarantor’s obligations hereunder. 5. Reinstatement in Certain Instances. The EMEA Guarantor further agrees that if any payment or delivery of any of the Guaranteed Obligations is subsequently rescinded or is subsequently recovered from or repaid by the recipient thereof, in whole or in part, in any bankruptcy, reorganization, insolvency or similar proceedings instituted by or against the Borrower, or otherwise, the EMEA Guarantor’s obligations hereunder with respect to such Guaranteed Obligation shall be reinstated at such time to the same extent as though the payment or delivery so recovered or repaid had not been originally made. 6. Security Interest. (a) As security for the performance by the EMEA Guarantor of all the terms, covenants and agreements on the part of the EMEA Guarantor to be performed under this EMEA Guaranty and any other Transaction Document, including all Guaranteed Obligations, the EMEA Guarantor hereby grants to the Administrative Agent for its benefit and the ratable benefit of the Secured Parties, a continuing security interest in, all of the EMEA Guarantor’s right, title and interest in, to and under all of the following, whether now or hereafter owned, existing or arising (collectively, the “EMEA Guarantor Collateral”): (i) sixty-five percent (65%) of the Equity Interests of Bird Rides Europe B.V. and (ii) all proceeds of, and all amounts received or receivable under any or all of, the foregoing. The Administrative Agent (for the benefit of the Secured Parties) shall have, with respect to all


 
4 the EMEA Guarantor Collateral, and in addition to all the other rights and remedies available to the Administrative Agent (for the benefit of the Secured Parties), all the rights and remedies of a secured party under any applicable UCC. (b) The EMEA Guarantor authorizes the Administrative Agent to perfect the Administrative Agent’s security interest in the EMEA Guarantor Collateral, by filing or authorizing the filing of, at the expense of the EMEA Guarantor, a UCC-1 financing statement naming the Administrative Agent as secured party and describing the EMEA Guarantor Collateral in a manner that the Administrative Agent reasonably determines is necessary or advisable to perfect the security interest granted hereunder. (c) At any time or from time to time upon the request of the Administrative Agent, the EMEA Guarantor will, at its expense, promptly execute, acknowledge and deliver such further documents and do such other acts and things as the Administrative Agent reasonably determines is necessary or advisable to perfect the security interest granted hereunder. (d) Upon the Borrower’s obligation to repay the Loans becoming immediately due and payable, the Administrative Agent and the other Secured Parties shall have, in addition to the rights and remedies which they may have under this EMEA Guaranty and the other Transaction Documents, all other rights and remedies provided after default under the UCC and under other Applicable Law, which rights and remedies shall be cumulative. Any proceeds from liquidation of the EMEA Guarantor Collateral shall be applied in the order of priority set forth in Section 4.01 of the Credit Agreement. (e) Immediately upon the earlier to occur of (i) (A) the Borrower having made voluntary prepayments of the Loans pursuant to Section 2.02(e) of the Credit Agreement in an amount equal to or in excess of $5,000,000 in the aggregate after the closing of the Eighth Amendment (excluding, for the avoidance of doubt, any prepayments required in connection with the closing of the Eighth Amendment and any other repayments of principal of the Loans) and (B) on the date of each such prepayment, Bird Rides, Inc. and its consolidated subsidiaries having Liquidity (as defined in the Scooter Lease and calculated pro forma for the voluntary prepayments referred to in clause (a)) in an amount of not less than 90% of the amount of liquidity for the calendar quarter in which such prepayment occurs that is reflected in the pro forma 2023-2024 forecast provided by Bird Rides, Inc. (or any of its Affiliates) to the Administrative Agent on December 15, 2022 (the “Forecast”), as certified by Bird Rides, Inc. to the Administrative Agent in a certificate (which certificate shall provide the amount of Liquidity on the date of such prepayment and a calculation showing that such Liquidity is not less than 90% of the amount of liquidity for the applicable calendar quarter reflected in the Forecast), or (ii) the satisfaction in full of the Guaranteed Obligations (other than unasserted or contingent indemnification claims) and the occurrence of the outstanding principal amount of the Loans being permanently reduced to $0, the EMEA Guarantor Collateral shall be automatically released from the lien created hereby, and this EMEA Guaranty and all obligations (other than those expressly stated to survive such termination) of the EMEA Guarantor shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the EMEA Guarantor Collateral shall revert to the EMEA Guarantor; provided, however,


 
5 that promptly following written request therefor by the EMEA Guarantor delivered to the Administrative Agent following any such termination, and at the expense of the EMEA Guarantor, the Administrative Agent shall execute and deliver to and authorize the filing by the EMEA Guarantor of UCC-3 termination statements or amendment statements and such other documents as the EMEA Guarantor shall reasonably request to evidence such termination. 7. Representations and Warranties. The EMEA Guarantor hereby represents and warrants to the Beneficiaries that: (a) The EMEA Guarantor (i) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has full power and authority to own its properties and assets and to carry on its business as now being conducted and as presently contemplated, and (iii) has full power and authority to execute, deliver and perform its obligations under this EMEA Guaranty. (b) The execution, delivery and performance by the EMEA Guarantor of its obligations under this EMEA Guaranty will not (i) violate or conflict with (x) any provision of law, order, judgment or decree of any court or other agency or government, (y) any provision of its constitutional documents, or (z) any agreement or other instrument to which the EMEA Guarantor is a party or is bound; (ii) result in a breach of, or constitute (with due notice or lapse of time or both) a default under any contractual provision to which it is bound; or (iii) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the EMEA Guarantor pursuant to any indenture, agreement or instrument (other than pursuant to this EMEA Guaranty), except in the case of each of the foregoing clauses (i) through (iii) to the extent that any such conflict, breach, default, lien, charge, encumbrance, or violation as applicable, could not reasonably be expected to have a Material Adverse Effect. (c) Except where the failure to obtain or make such consent, approval or authorization could not reasonably be expected to have a Material Adverse Effect, all consents, approvals, or authorizations from any Governmental Authority that are required to be obtained in connection with or as a condition to the execution, delivery or performance of this EMEA Guaranty have been obtained or made and are in full force and effect. (d) The EMEA Guarantor is Solvent. (e) The EMEA Guarantor is not contemplating either a filing of a petition under any state or federal bankruptcy law, or the liquidating of all or a major portion of its property; and the EMEA Guarantor has no knowledge of any person contemplating the filing of such petition against it. (f) Perfection Representations. (i) This EMEA Guaranty creates a valid and continuing security interest (as defined in the applicable UCC) in the EMEA Guarantor’s right, title and interest in, to and under the EMEA Guarantor Collateral which (A) security interest is


 
6 enforceable against creditors of and purchasers from the EMEA Guarantor, (B) security interest will be perfected upon filing of a financing statement in the EMEA Guarantor’s location (within the meaning of Section 9-307 of the UCC) naming the EMEA Guarantor as debtor and the Administrative Agent as secured party and describing the EMEA Guarantor Collateral and (C) will be free of all Adverse Claims in such EMEA Guarantor Collateral, except for Permitted Liens. (ii) The EMEA Guarantor owns and has good and marketable title to the EMEA Guarantor Collateral free and clear of any Adverse Claim of any Person other than Liens permitted to exist under the Credit Agreement. (iii) All appropriate financing statements, financing statement amendments and continuation statements have been prepared by the Administrative Agent to be filed in the proper filing office in the appropriate jurisdictions under Applicable Law in order to perfect (and continue the perfection of) the grant by the EMEA Guarantor of a security interest in the EMEA Guarantor Collateral to the Administrative Agent pursuant to this Agreement. (iv) Other than the security interest granted to the Administrative Agent pursuant to this EMEA Guaranty, the EMEA Guarantor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the EMEA Guarantor Collateral except as permitted by the Transaction Documents. The EMEA Guarantor has not authorized the filing of and, except as otherwise notified to the Administrative Agent in writing, is not aware of any financing statements filed against the EMEA Guarantor that include a description of collateral covering the EMEA Guarantor Collateral other than any financing statement (i) in favor of the Administrative Agent or (ii) that has been terminated. The EMEA Guarantor is not aware of any judgment lien, ERISA lien or tax lien filings against the EMEA Guarantor that are not permitted by this Agreement and the other Transaction Documents. (v) Notwithstanding any other provision of this Agreement or any other Transaction Document, the representations contained in this Section 7(f) shall be continuing and remain in full force and effect until the Final Payout Date. 8. [Reserved]. 9. Subrogation. The EMEA Guarantor shall be subrogated to all rights of the Beneficiaries against the Borrower in respect of any amounts paid or deliveries made by the EMEA Guarantor pursuant to the provisions of this EMEA Guaranty, provided, however, that the EMEA Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until payment in full of all of the Guaranteed Obligations. 10. Expenses of Enforcement. The EMEA Guarantor further agrees to pay all reasonable and documented out-of-pocket costs and expenses, including reasonable attorneys’ fees, which are incurred by any of the Beneficiaries in any effort to collect or enforce any provision of this EMEA Guaranty.


 
7 11. Set-Off. Upon the Guaranteed Obligations becoming due and payable (by acceleration or otherwise) under the Credit Agreement or any other applicable Transaction Document, each Beneficiary is hereby authorized to setoff, appropriate and apply (without presentment, demand, protest or other notice which are hereby expressly waived) any deposits and any other indebtedness held or owing by such Beneficiary (including by any branches or agencies of such Beneficiary) to, or for the account of, the EMEA Guarantor against amounts owing by the EMEA Guarantor hereunder (even if contingent or unmatured); provided that such Beneficiary shall notify the EMEA Guarantor promptly following such setoff. 12. Counterclaim/Setoff and Taxes. All payments and deliveries hereunder shall be made by the EMEA Guarantor (a) without set-off, counterclaim or deduction; and (b) without ,deduction for Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of the EMEA Guarantor) requires the deduction or withholding of any Tax from any such payment by the EMEA Guarantor, then the EMEA Guarantor shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and if any such withholding or deduction is in respect of any Indemnified Taxes, then the EMEA Guarantor shall pay such additional amount or amounts as is necessary to ensure that the net amount actually received by the Beneficiaries will equal the full amount the Beneficiaries would have received had no such withholding or deduction of Indemnified Taxes been required (including, without limitation, such withholdings and deductions applicable to additional sums payable under this Section 10). After payment of any Tax by the EMEA Guarantor to a Governmental Authority pursuant to this Section 10, the EMEA Guarantor shall promptly forward to the Beneficiaries the original or a certified copy of an official receipt, a copy of the return reporting such payment, or other documentation reasonably satisfactory to the Beneficiaries evidencing such payment to such authority. 13. Governing Law; Submission to Jurisdiction. THIS EMEA GUARANTY AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL MATTERS ARISING OUT OF OR RELATING IN ANY WAY TO THIS EMEA GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICTS OF LAW PROVISIONS THEREOF, EXCEPT TO THE EXTENT THAT THE PERFECTION, THE EFFECT OF PERFECTION OR PRIORITY OF THE INTERESTS OF ADMINISTRATIVE AGENT OR ANY LENDER IN THE COLLATERAL IS GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK). With respect to any suit, action or proceedings relating to this EMEA Guaranty (“Proceedings”), the EMEA Guarantor irrevocably: (a) submits to the exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City and irrevocably agrees to designate any Proceedings brought in the courts of the State of New York as “commercial” on the Request for Judicial Intervention seeking assignment to the Commercial Division of the Supreme Court; and (b) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings that such court does not have any jurisdiction over the EMEA Guarantor. Nothing in this EMEA Guaranty precludes the Beneficiaries from bringing


 
8 Proceedings in any other jurisdiction in order to enforce any judgment obtained in any Proceedings referred to in the preceding sentence. 14. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT. 15. Successor and Assigns. This EMEA Guaranty shall continue in full force and effect and be binding upon the EMEA Guarantor and the successors and permitted assigns of the EMEA Guarantor, provided, however, that the EMEA Guarantor may not assign or otherwise transfer this EMEA Guaranty or any obligations hereunder without the prior written consent of the Beneficiaries and any such assignment or transfer without such consent shall be void. The Beneficiaries may, concurrently with any assignment of their rights and obligations in accordance with the Credit Agreement, assign this EMEA Guaranty or any rights or powers hereunder, with any or all of the underlying liabilities or obligations, the payment of which is guaranteed hereunder. 16. Entire Agreement; Amendments and Waivers. This EMEA Guaranty supersedes any prior negotiations, discussions, or communications between the Beneficiaries and the EMEA Guarantor and constitutes the entire agreement between the Beneficiaries and the EMEA Guarantor with respect to the Credit Agreement and this EMEA Guaranty. No provision of this EMEA Guaranty may be amended, modified or waived without the prior written consent of the Beneficiaries. 17. Notices. All notices or other communications to the EMEA Guarantor and the Beneficiaries shall be delivered pursuant to the requirements set forth in Section 14.02 of the Credit Agreement. 18. Amendment and Restatement. This EMEA Guaranty is an amendment and restatement, and not in extinguishment, of the Existing EMEA Guaranty. Nothing contained herein shall be construed as a release or other discharge of the EMEA Guarantor’s obligations under the Existing EMEA Guaranty, all of which obligations are hereby ratified and confirmed in all respects and shall continue hereunder, and the EMEA Guarantor hereby ratifies the security interests granted by it under the Existing EMEA Guaranty. [SIGNATURE PAGE TO FOLLOW.]


 
[Signature Page to Third Amended and Restated EMEA Guaranty and Pledge Agreement] IN WITNESS WHEREOF, the EMEA Guarantor has caused this Third Amended and Restated EMEA Guaranty to be executed by one of its duly authorized representatives or officers. BIRD RIDES INTERNATIONAL HOLDING, INC. By: /s/ Shane Torchiana Name: Shane Torchiana Title: President and Chief Executive Officer


 
[Signature Page to Third Amended and Restated EMEA Guaranty and Pledge Agreement] Acknowledged and Agreed: MIDCAP FINANCIAL TRUST, as the Administrative Agent By: Apollo Capital Management, L.P., its Investment Manager By: Apollo Capital Management GP, LLC, its General Partner By: /s/ Maurice Amsellem Name: Maurice Amsellem Title: Authorized Signatory


 

BIRD CANADA, INC. Michael Washinushi January 1, 2023 Dear Mr. Washinushi, Bird Canada, Inc. (the “Company”), is pleased to offer you employment with the Company on the terms described in this Employment Letter Agreement (this “Letter”), commencing as of the Start Date set forth on the signature page hereto (the “Start Date”). 1. Position. You shall, effective as of the Start Date, serve as Chief Financial Officer of Bird Global, Inc. (“Parent”), pursuant to an agreement to be entered into between the Company and Parent, and you shall perform such employment duties as are usual and customary for such position and/or as otherwise directed by the Company. You will report to Parent’s Chief Executive Officer (currently Shane Torchiana). In addition to the foregoing, you shall serve the Company, Parent and/or any of their respective subsidiaries or affiliates in such other capacities as the Company may request from time to time, without additional compensation. By signing this Letter, you confirm that you are under no contractual or other legal obligations that would prohibit you from performing your duties hereunder. 2. Compensation. (a) Base Salary. Effective as of the Start Date, you will be paid an annual base salary (“Base Salary”) at the rate of $682,000 CAD per year, payable on the Company’s regular payroll dates and pro-rated for any partial year of service (including, for clarity, calendar year 2023). (b) Equity Award. (i) RSU Award. Subject to the approval of Parent’s Board of Directors (the “Board”), or a subcommittee of the Board, you will be granted an award of Restricted Stock Units (“RSUs”) covering 2,500,000 shares of Parent’s Class A common stock (the “RSU Award”). Unless otherwise specified, the grant date shall be the date that the Board (or a subcommittee of the Board, as applicable) approves the grant of such RSUs. The RSU Award will be subject to the terms and conditions contained in Parent’s 2021 Incentive Award Plan or an employment inducement plan, as determined by the Board in its sole discretion (in any case, the “Plan”), and the applicable RSU award agreement in a form attached hereto as Schedule A, which may include forfeiture provisions applicable on termination of your employment, subject to Section 3 below. The RSU Award will vest with respect to 1/12 of the RSUs on March 1, 2023 and 1/12 each of the first 11 quarterly anniversaries thereafter, subject to the terms of the Plan and the RSU award agreement. As soon as administratively practicable after the RSU Award becomes fully vested, the RSU Award will be settled in accordance with the terms of the Plan and applicable RSU award agreement. (ii) Future RSU Award(s). In addition, if Parent achieves specified stock price goals outlined in Exhibit A attached hereto, Parent will grant you, subject to the approval of the Board or a subcommittee thereof, one or more RSU awards (the “Performance-Vesting RSUs”). The Performance- Vesting RSUs will be subject to the terms and conditions contained in the Plan and the applicable RSU award agreement(s) in a form attached hereto as Schedule A, and will vest on a quarterly basis subject to Section 3 below. You acknowledge and agree that the Performance-Vesting RSUs, and the shares of Class A common stock and the Price Per Share Goals (as defined on Exhibit A hereto) subject thereto, are subject to adjustment, modification and termination in connection with certain events as provided in this Letter (including Exhibit A hereto) and the Plan, as if they were granted under the Plan as of the date hereof. For


 
2 purposes of clarity, in connection with an Equity Restructuring (as defined in the Plan), the Price Per Share Goals, the number of Performance-Vesting RSUs and the shares of Class A common stock subject thereto shall be subject to adjustment pursuant to the Plan (as applicable), including Section 8.1 of Parent’s 2021 Incentive Award Plan. (iii) Annual Equity Awards. Beginning in calendar year 2024, you will be eligible to receive an annual equity-based compensation award as determined by the Board (or a subcommittee thereof) from time to time. The Board (or such subcommittee) will determine in its sole discretion the grant timing, amount, form(s) and mix, and such other terms and conditions, applicable to any such annual equity-based compensation award, which may include forfeiture provisions applicable on termination of the your employment, subject to Section 3 below. (iv) Notwithstanding the foregoing and notwithstanding anything to the contrary in the Plan, the awards described in paragraphs (i), (ii) and (iii) above will be structured in a manner that complies with Section 7 of the Income Tax Act (Canada), including, without limitation: (A) by requiring that Parent’s Class A common stock be issued to you from treasury upon settlement of RSUs and not in cash or with shares purchased on the open market, (B) by requiring that dividend equivalents be paid to you in as a bonus, in cash, and (C) by deeming any provisions of the Plan which are inconsistent with Section 7 of the Income Tax Act (Canada) to be inapplicable. (c) Performance Bonus. For each of calendar years 2023 and 2024, you shall be eligible to earn one or more cash performance bonuses (each, a “Performance Bonus”), as follows: (i) Adjusted EBITDA. You shall be eligible to earn (i) a Performance Bonus equal to $12,800 CAD for each calendar quarter in which the Company achieves positive Adjusted EBITDA (as defined below), beginning with the first quarter of 2023; and (ii) an additional Performance Bonus equal to $51,200 CAD if the Company achieves positive Adjusted EBITDA for any three calendar quarters in the same calendar year (i.e., in 2023 or in 2024), in each case, as determined by the Board or a subcommittee thereof. In no event shall more than $102,400 CAD be payable to you with respect to any one calendar year under this Section 2(c)(i). For purposes of this Letter, “Adjusted EBITDA” means, with respect to the applicable period, Adjusted EBITDA as reported in the applicable earnings release attached as an exhibit to the Company’s Current Report on Form 8-K for the applicable period. (ii) Free Cash Flow. You shall be eligible to earn (i) a Performance Bonus equal to $25,600 CAD for each calendar quarter during which the Company achieves positive Free Cash Flow (as defined below), beginning with the first quarter of 2023; and (ii) an additional Performance Bonus equal to $102,400 CAD if the Company achieves positive Free Cash Flow for any three calendar quarters in the same calendar year (i.e., in 2023 or in 2024), in each case, as determined by the Board or a subcommittee thereof. In no event shall more than $204,800 CAD be payable to you with respect to any one calendar year under this Section 2(c)(ii). For purposes of this Letter, “Free Cash Flow” means, with respect to an applicable period, (1) Free Cash Flow as reported in the applicable earnings release attached as an exhibit to the Company’s Current Report on Form 8-K for the applicable period or (2) if Free Cash Flow is not specifically reported in the applicable earnings release, (x) net cash provided by operating activities, less (y) purchases of vehicles, each as reported in the applicable earnings release attached as an exhibit to the Company’s Current Report on Form 8-K for the applicable period. (iii) YOY Net Revenue. You shall be eligible to earn (i) a Performance Bonus equal to $38,400 CAD if the Company’s Net Revenue (as defined below) increases by 30% or more year- over-year from calendar year 2022 to calendar year 2023 (the “2023 YOY Net Revenue Goal”); and (ii) an additional Performance Bonus equal to $38,400 CAD if the Company’s Net Revenue increases by 30% or more year-over-year from calendar year 2023 to calendar year 2024 (the “2024 YOY Net Revenue Goal”


 
3 and, together with the 2023 YOY Net Revenue Goal, the “YOY Net Revenue Goals”), as determined by the Board or a subcommittee thereof; provided, however, that (x) any additional 2023 Net Revenue associated with a corporate acquisition that is consummated in calendar year 2023 will be excluded for purposes of calculating the level at which the 2023 YOY Net Revenue Goal is achieved and (y) any additional 2024 Net Revenue associated with a corporate acquisition that is consummated in calendar year 2024 will be excluded for purposes of calculating the level at which the 2024 YOY Net Revenue Goal is achieved. In no event shall more than $76,800 CAD be payable to you under this Section 2(c). For purposes of this Letter, “Net Revenue” means, with respect to an applicable period, (x) revenue, less (y) contra revenue, each as reported in the applicable earnings release attached as an exhibit to the Company’s Current Report on Form 8-K for the applicable period. (iv) Additional Performance Bonus. Without limiting anything set forth in this Section 2, you also will be eligible to earn an additional $204,800 CAD with respect to each of calendar year 2023 and calendar year 2024 if the Company achieves both (i) positive Adjusted EBITDA and positive Free Cash Flow for any three calendar quarters in the same calendar year (i.e., in 2023 or in 2024); and (ii) the YOY Net Revenue Goal for such calendar year, in each case, as determined by the Board or a subcommittee thereof. In no event shall more than $409,600 CAD be payable to you under this Section 2(c)(iv). (v) Payment. The payment of any Performance Bonus, to the extent any Performance Bonus becomes payable, will be made within 75 days after the end of the applicable calendar quarter or 75 days after the end of the applicable calendar year (as applicable), subject to your continued employment with the Company throughout the applicable performance period, and subject to Section 3 below. Performance Bonus is not earned until it is paid. Except only as may be required to satisfy the minimum requirements of applicable employment or labour standards legislation, no Performance Bonus will be paid or is payable to you following the Termination Date, and you waive any claim to damages in respect thereof whether related or attributable to any contractual or common law termination entitlements or otherwise. (d) Signing Bonus. The Company shall pay you a one-time cash signing bonus (the “Signing Bonus”) in an amount equal to $100,000 CAD, payable in a lump-sum within 45 days following the Start Date. Notwithstanding the foregoing or anything to the contrary herein or in any other agreement, you acknowledge and agree that if the Termination Date occurs other than due to a Qualifying Termination (as defined below) or due to your death or disability, in any case, prior to the second anniversary of the Start Date, all or a portion of the Signing Bonus shall be repaid promptly by you to the Company immediately upon demand therefor in an amount equal to: (i) 100% of the Signing Bonus, if such termination occurs prior to the first anniversary of the Start Date; and (ii) 50% of the Signing Bonus, if such termination occurs on or after the first anniversary of the Start Date and prior to the second anniversary of the Start Date. You and the Company acknowledge and agree that the Signing Bonus (or the relevant portion thereof) will not be earned unless and until you are continuously, actively employed with the Company through the applicable anniversary of the Start Date, and the Termination Date has not occurred. However, if a Change in Control (as defined in the Plan) is consummated and you remain in continuous employment until immediately prior to the Change in Control, you will be deemed earned in the entire Signing Bonus and you will not be required to repay any portion of the Signing Bonus that remains subject to the above repayment provision.


 
4 (e) Benefits. During your employment with the Company, you (and your spouse and/or eligible dependents to the extent provided in the applicable plans and programs) shall be eligible to participate in and be covered under the health and welfare benefit plans and programs maintained by the Company for the benefit of its employees from time to time, pursuant to the terms of such plans and programs, on the same terms and conditions as those applicable to similarly situated executives of the Company. 3. Severance. (a) Qualifying Termination. Subject to Section 3(b) below and your continued compliance with the Confidentiality Agreement (as defined below), if your employment is terminated due to a Qualifying Termination, then, the Company will provide you with: (i) payment of any Base Salary that is earned, due and payable to you up to and including the last day of employment; (ii) payment of any Performance Bonus that was earned, but not yet paid, on the date of termination; (iii) an amount equal to 12 months of your Base Salary then in effect (the “Severance”), payable in substantially equal installments in accordance with the Company’s normal payroll practices over the 12-month period following the termination of your employment (the “Severance Period”), with such installments commencing on the first regular payroll date following the effective date of the Release (as defined below), and amounts otherwise payable prior to such first payroll date shall be paid on such date without interest thereon; (iv) subject to insurer approval and any required exclusions, continued participation under the Company benefits plans for the minimum period required pursuant to applicable employment or labour standards legislation; (v) the minimum amount of vacation pay as may then be required to be paid to your pursuant to applicable employment or labour standards legislation; (vi) all outstanding Time Vesting Awards (as defined below) shall, to the extent then-unvested, vest (and, as applicable, become exercisable) on an accelerated basis as of the Termination Date with respect to the number of shares underlying the award that would have vested had you remained in continuous employment during the 24-month period following the Termination Date; provided, however, that, with respect to any Time Vesting Award that vests on a quarterly basis, the number of Parent shares that become vested in accordance with the foregoing shall be calculated assuming that the vesting schedule for such award is monthly (rather than quarterly) over the vesting period from the applicable vesting commencement date. Notwithstanding the foregoing, in the event that such Qualifying Termination occurs during the 24-month period following the date on which a Change in Control is consummated, all of your then-outstanding Time Vesting Awards shall, to the extent then-unvested, become fully vested (and, as applicable, exercisable) on an accelerated basis as of the Termination Date; and (vii) to the extent that the compensation and benefits set out above do not fully satisfy your entitlements under the applicable employment or labour standards legislation, payment and provision of any additional compensation and benefits that are then required to be paid or provided to the you to satisfy your minimum entitlements under the applicable employment or labour standards legislation. For absolute clarity, in no case will you receive less than the minimum payments and benefits that are then


 
5 required to be provided to you by the Company upon such termination pursuant to applicable employment or labour standards legislation. In addition to the severance payments and benefits described in Section 3(a) above, you and the Company acknowledge and agree that, following a Qualifying Termination of your employment, at the Company’s request, you and the Company shall enter into an advisor or consulting agreement, pursuant to which you will provide advisory and/or transition services to the Company and its affiliates for a period of up to one year following the Termination Date, on terms and conditions determined by the Board or a subcommittee thereof. You agree that if your employment with the Company ceases as a result of the constructive dismissal of your employment, then this Section will govern and limit your entitlements upon such constructive dismissal as if the Company had terminated your employment without Cause. (b) Release. Any severance payments and benefits described in Section 3(a) above, which exceed your minimum standards under applicable employment and labour standards legislation, will be conditional upon your timely execution and non-revocation of the Company’s standard separation and release agreement, including a general release of all claims, in a form prescribed by the Company (the “Release”), within 21 days (or such longer period as may be required by applicable law) following the Termination Date. For the avoidance of doubt, each Time Vesting Award shall remain outstanding and eligible to vest following the termination date and shall actually vest and become non-forfeitable upon the effectiveness of the Release. (c) Performance Awards. Any Parent equity compensation awards that have not become Time Vesting Awards and remain subject to the achievement of performance conditions (i.e., other than continued service) as of the Termination Date (including any Performance-Vesting RSUs that have not yet been granted because the applicable performance goal has not yet been achieved) shall be forfeited and terminated without consideration therefor, except to the extent required under applicable employment or labour standards legislation. (d) Certain Definitions. For purposes of this Letter: (i) “Cause” shall have the meaning set forth in the Plan. (ii) “Change in Control” shall have the meaning set forth in the Plan. For greater certainty, and for the purposes of this Letter: (1) references to “the Company” in the definition of “Change in Control” are deemed to refer to Bird Canada, Inc. and/or Bird Global, Inc.; (2) references to a “transaction” in the definition of “Change in Control” are deemed to include a dissolution, winding up or bankruptcy of the Company, or any changes occurring as a result of the Company filing for protection under the Companies' Creditors Arrangement Act, RSC 1985, c C-36 or the U.S. equivalent, in addition to the transactions that are specifically described; and (3) a “Change in Control” is deemed to have occurred where the Company and/or Parent’s Board of Directors determines, in its sole discretion, that there has been a change of control. (iii) “Good Reason” shall mean the occurrence of any one or more of the following events without your prior written consent unless the Company fully corrects the circumstances


 
6 constituting Good Reason (provided such circumstances are capable of correction): (1) a material reduction in your Base Salary of 10% or greater, other than a reduction of up to 10% in connection with an across- the-board reduction affecting all similarly situated senior executives of the Company; (2) a material reduction in your benefits and perquisites; (3) the discontinuation of your participation in any equity or incentive plan or program that is described in Section 2 above; (4) a failure to pay you any portion of your then-current compensation when it becomes due, unless you have consented to delay such compensation; (5) a material diminution of your title, authority, duties or responsibilities, excluding for this purpose any isolated, insubstantial or inadvertent actions not taken in bad faith and which are remedied by the Company promptly after receipt of notice thereof given by you; (6) a relocation of your principal workplace (which may include your personal residence) by more than 35 miles; (7) a material breach by the Company or any of its affiliates of this Letter; or (8) a requirement that you report to any person other than the President or the Chief Executive Officer of Parent (other than temporarily or as required by applicable law). Notwithstanding the foregoing, you will not be deemed to have resigned your employment for Good Reason unless (x) you provide the Company with written notice setting forth in reasonable detail the facts and circumstances you claim to constitute Good Reason within 90 days after the date of the occurrence of any event that you know or should reasonably have known to constitute Good Reason; (y) the Company fails to cure such acts or omissions within 30 days following its receipt of such notice; and (z) the effective date of your resignation for Good Reason occurs no later than 60 days after the expiration of the Company’s cure period. (iv) “Qualifying Termination” shall mean a termination of your employment (1) by the Company without Cause (other than by reason of your death or disability) or (2) by you for Good Reason. (v) “Termination Date” means the date on which you cease to be an employee of the Company for any reason, whether lawful or otherwise (including, without limitation, by reason of resignation, termination for Cause, termination without Cause, death, frustration of contract due to disability or constructive dismissal), without regard to any pay in lieu of notice (whether by lump sum or salary continuance), benefits continuation, or other termination or severance payments or benefits which the Employee may then receive or be entitled to receive, whether pursuant to contract, the common law or otherwise. (vi) “Time Vesting Awards” shall mean all outstanding Parent equity awards that vest solely on the passage of time that are held by you on the Termination Date (including, for clarity, (x) any then-unvested RSUs underlying the RSU Award and (y) any then-unvested Performance-Vesting RSUs (to the extent then-outstanding) that, as of the Termination Date, have satisfied the applicable performance goal (but which remain subject to time-based vesting conditions)). (e) No Other Rights. Except as expressly provided in this Section 3(a), you shall not be entitled to any additional payments or benefits upon or in connection with your termination of employment. 4. Confidential Agreement. Like all Company employees, you will be required, as a condition of your employment with the Company, to sign the Company’s standard Intellectual Property and Confidential Information Agreement (the “Confidentiality Agreement”). 5. Employment Relationship. Your employment with the Company with commence on the Start Date and continue indefinitely until terminated in accordance with this Letter. 6. Outside Activities. While you render services to the Company, you agree that you will not engage in any other employment, or any consulting or other business activity that competes or causes a


 
7 conflict of interest with Parent or the Company and/or the performance of your duties, without the written consent of Parent or the Company. 7. Indemnification. Parent or the Company will indemnify, defend, and hold you harmless to the fullest extent provided in the Company’s Bylaws and other organizing documents, including the Certificate of Incorporation and any separate, written indemnification agreement entered into by and between you and the Company in the substantially the same form as provided to all other Company officers and directors. 8. Taxes, Withholding and Required Deductions. All forms of compensation referred to in this Letter are in Canadian dollars and are subject to all applicable taxes, withholding and any other deductions required by applicable law. 9. Employee Handbook. Additionally, your acceptance of this offer of employment means that you understand and agree to familiarize yourself with and adhere to the Company policies and procedures which you will find in the Company Handbook. 10. No Tax Advice. You acknowledge and agree that you have consulted with any tax advisors that you deem advisable in connection with this Letter and the potential payments and other benefits specified herein and that you are not relying on the Company, Parent or any of their respective subsidiaries, affiliates, stockholders, directors, officers or employees, or any of their respective representatives, for tax advice. 11. Arbitration. Like all Company employees, you will be required, as a condition of your employment with the Company, to sign the Company’s Mutual Agreement to Arbitrate. Unless a mandatory dispute resolution procedure is required by a statute applicable to this Letter, any disputes concerning your employment, the terms of your employment, the termination of your employment, your relationship with the Company, or the interpretation and application of this offer shall be resolved on an individual basis through binding arbitration in accordance with the Mutual Agreement to Arbitrate. 12. Governing Law. The validity, interpretation, construction and performance of this Letter, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable in that Province, without giving effect to principles of conflicts of law. 13. Entire Agreement. This Letter, and the agreements referenced herein, set forth the entire agreement and understanding of the parties hereto relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings and agreements, whether oral or written, between them relating to the subject matter hereof. 14. Counterparts. This Letter may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the same agreement. Execution of a facsimile or PDF (or other electronic) copy will have the same force and effect as execution of an original, and a facsimile or electronic signature will be deemed an original and valid signature. 15. Electronic Delivery. The Company may, in its sole discretion, decide to deliver any documents or notices related to this Letter, securities of the Company or any of its affiliates or any other matter, including documents and/or notices required to be delivered to you by applicable securities law or any other law by email or any other electronic means. You hereby consent to (i) conduct business electronically (ii) receive such documents and notices by such electronic delivery and (iii) sign documents


 
8 electronically and agree to participate through an on-line or electronic system established and maintained by the Company or a third party designated by the Company. If you wish to accept this offer, please sign and date and return to me. You acknowledge and agree that this offer is contingent upon (i) your ability to provide proper work authorization to be employed by the Company and (ii) receiving applicable background check results that meet standards based upon job duties and business necessity. Please note, given ongoing delays and closures with certain public institutions in light of the COVID pandemic, we may need to re-run your background check for certain jurisdictions once they are accessible. You will be notified at that time and will be provided with the applicable disclosures, and asked to provide consent to run your background check. You understand that your continued employment will be contingent upon receiving applicable background check results that meet standards based upon job duties and business necessity at that time. This means that if a potentially disqualifying record is revealed in the completed background check, the Company may terminate your employment in accordance with applicable law. This offer, if not accepted, will expire at the close of business on January 3, 2023. [Signature Page Follows]


 
[Signature Page to Offer Letter] Please indicate your acknowledgement of, and agreement to, the terms and conditions set forth in this Letter by signing and dating this Letter in the space provided below and returning the signed Letter to Brooke Tandy. We very much look forward to having you join us. Very truly yours, BIRD CANADA, INC. By: /s/ Shane Torchiana Name: Shane Torchiana Title: Authorized Signatory


 
[Signature Page to Offer Letter] ACCEPTED AND AGREED: Michael Washinushi /s/ Michael Washinushi Anticipated Start Date: January 1, 2023


 
EXHIBIT A Grant of Performance-Vesting RSUs; General Vesting Schedule Grant of RSUs. Performance-Vesting RSUs will be granted to you in two separate tranches as set forth in the table below (each, a “Tranche”), following the attainment of the applicable Price Per Share (as defined below) goals set forth in the following table (each, a “Price Per Share Goal” and, the date on which such Price Per Share Goal is attained (the “Vesting Commencement Date”)), in each case, subject to approval by the Board or a subcommittee thereof. Price Per Share Goal (1) Number of Granted Performance- Vesting RSUs Price Per Share is greater than or equal to $2.50 USD for any 10 Trading Days (as defined below), which may or may not be consecutive, within any 20 consecutive Trading Day period within the Performance Period 1,000,000 Price Per Share is greater than or equal to $5.00 USD for any 10 Trading Days, which may or may not be consecutive, within any 20 consecutive Trading Day period within the Performance Period 500,000 (1) Upon a Change in Control during the Performance Period, the Price Per Share shall be the CIC Price (as defined below) and the Price Per Share Goal shall be measured without regard to the Trading Day period described in the table above. For the avoidance of doubt, (i) each Price Per Share Goal may be achieved only once during the Performance Period and (ii) more than one Price Per Share Goal may be achieved on a particular date. For example, if the first Price Per Share Goal of $2.50 USD per Share is satisfied on January 21, 2023, the Price Per Share thereafter drops below such level and again reaches $2.50 USD per Share, then no additional Performance-Vesting RSUs shall be granted with respect to the achievement of such Price Per Share Goal a second time. Service-Vesting Requirement. Each Performance-Vesting RSU granted to you with respect to a Tranche shall fully vest as to 1/6th of the total number of RSUs subject such Tranche on each quarterly anniversary of the applicable Vesting Commencement Date, such that all of the RSUs subject to such Tranche shall have fully vested as of the 18-month anniversary of such Vesting Commencement Date, subject to your continued employment with the Company or its affiliates throughout the applicable performance period (and rounded down to the nearest whole RSU until the final vesting date), subject to Section 3. For certainty, except only as may be required to satisfy the minimum requirements of applicable employment or labour standards legislation, as amended or replaced, no RSUs granted to you shall further vest following the Termination Date, and any RSU that is unvested (or any unvested portion thereof) on the Termination Date will terminate and be cancelled on that date, and you shall have no claim to any payment or damages in lieu thereof whether under the common law or otherwise. Change in Control If a Change in Control occurs during the Performance Period, and a Price Per Share Goal is first achieved based on the CIC Price, then any Performance-Vesting RSUs to which such Price Per Share Goal applies shall be granted (or, as determined by the Board or a subcommittee thereof in its sole discretion, shall be deemed granted) and shall be eligible to vest following such Change in Control subject to the satisfaction of the service-vesting condition set forth above or in accordance with Section 3.


 
Notwithstanding the generality of the foregoing, in the event that a Price Per Share Goal was achieved prior to such Change in Control, no additional Performance-Vesting RSUs shall be granted with respect to the achievement of such Price Per Share Goal in connection with such Change in Control. Notwithstanding anything to the contrary contained herein or in the Plan (including Section 8.3 of Parent’s 2021 Incentive Award Plan), if, in connection with the occurrence of a Change in Control, any Performance-Vesting RSUs have not or do not become granted due to failure to achieve the applicable Price Per Share Goal, then your right to the grant of such RSUs automatically will be forfeited and terminated without consideration therefor as of immediately prior to the consummation of such Change in Control, and you shall have no claim to any payment or damages in lieu thereof whether under the common law or otherwise. Termination of Service Upon your Termination Date, all Performance-Vesting RSUs that have not become Time Vesting Awards and/or been granted as of the Termination Date (because the applicable Price Per Share Goal has not yet been achieved) automatically will be forfeited and terminated without consideration therefor. For certainty, except only as may be required to satisfy the minimum requirements of applicable employment or labour standards legislation, as amended or replaced, no Performance-Vesting RSUs shall be granted following your Termination Date and will terminate and be cancelled on that date, and you shall have no claim to any payment or damages in lieu thereof whether under the common law or otherwise. Definitions “CIC Price” means the price per Share of Class A Common Stock (each such term as defined in the Plan) (or, in connection with a sale or other disposition of all or substantially all of the Parent’s assets, the implied price per Share of Class A Common Stock) paid by an acquiror in connection with such Change in Control or, to the extent that the consideration in the Change in Control transaction is paid in stock of the acquiror or its affiliate, then, unless otherwise determined by the Administrator (as defined in the Plan), the CIC Price shall mean the value of the consideration paid per Share based on the average of the closing trading prices of a share of such acquiror stock on the principal exchange on which such shares are then traded for each Trading Day during the five consecutive Trading Days ending on and including the date on which a Change in Control occurs. In the event the consideration in the Change in Control takes any other form, the value of such additional consideration shall be determined by the Administrator in its sole discretion. “Performance Period” means the period beginning on (and including) the Start Date and ending on (and including) the five year anniversary of the Start Date. “Price Per Share” means (i) the daily volume-weighted average sale price of one Share quoted on the New York Stock Exchange (or the exchange on which the Shares are then listed); or (ii) if a Change in Control is consummated during the Performance Period, the CIC Price. “Termination Date” means the date on which you cease to be an employee of the Company or its affiliates for any reason, whether lawful or otherwise (including, without limitation, by reason of resignation, termination for Cause (as defined in the Plan), termination without Cause, death, frustration of contract due to disability or constructive dismissal), without regard to any pay in lieu of notice (whether by lump sum or salary continuance), benefits continuation, or other termination or severance payments or benefits which you may then receive or be entitled to receive, whether pursuant to contract, the common law or otherwise.


 
“Trading Day” means any day on which Shares are actually traded on the principal securities exchange or securities market on which Shares are then traded.


 
SCHEDULE A RESTRICTED STOCK UNIT GRANT NOTICE Bird Global, Inc., a Delaware corporation (the “Company”), has granted to the participant listed below (“Participant”) the Restricted Stock Units (the “RSUs”) described in this Restricted Stock Unit Grant Notice (this “Grant Notice”), subject to the terms and conditions of the Bird Global, Inc. 2021 Incentive Award Plan (as amended from time to time, the “Plan”) and the Restricted Stock Unit Agreement attached hereto as Exhibit A (the “Agreement”), both of which are incorporated into this Grant Notice by reference. Capitalized terms not specifically defined in this Grant Notice or the Agreement have the meanings given to them in the Plan. Participant: Grant Date: Number of RSUs: Vesting Commencement Date: Vesting Schedule: By accepting (whether in writing, electronically or otherwise) the RSUs, Participant agrees to be bound by the terms of this Grant Notice, the Plan and the Agreement. Participant has reviewed the Plan, this Grant Notice and the Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Grant Notice and fully understands all provisions of the Plan, this Grant Notice and the Agreement. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under the Plan, this Grant Notice or the Agreement. BIRD GLOBAL, INC. PARTICIPANT By: Name: Participant Name: Title: BIRD GLOBAL, INC. 2021 INCENTIVE AWARD PLAN


 
Exhibit A RESTRICTED STOCK UNIT AGREEMENT Capitalized terms not specifically defined in this Restricted Stock Unit Agreement (this “Agreement”) have the meanings specified in the Grant Notice or, if not defined in the Grant Notice, in the Plan. ARTICLE I. GENERAL 1.1 Award of RSUs. The Company has granted the RSUs to Participant effective as of the Grant Date set forth in the Grant Notice (the “Grant Date”). Each RSU represents the right to receive one Share as set forth in this Agreement. Participant will have no right to the distribution of any Shares until the time (if ever) the RSUs have vested. 1.2 Incorporation of Terms of Plan. The RSUs are subject to the terms and conditions set forth in this Agreement and the Plan, which is incorporated herein by reference. In the event of any inconsistency between the Plan and this Agreement, the terms of the Plan will control. 1.3 Unsecured Promise. The RSUs will at all times prior to settlement represent an unsecured Company obligation payable only from the Company’s general assets. ARTICLE II. VESTING; FORFEITURE AND SETTLEMENT 2.1 Vesting; Forfeiture. The RSUs will vest according to the vesting schedule in the Grant Notice except that any fraction of an RSU that would otherwise be vested will be accumulated and will vest only when a whole RSU has accumulated. In the event of Participant’s Termination of Service for any reason, all unvested RSUs will immediately and automatically be cancelled and forfeited, except as otherwise determined by the Administrator or provided in a binding written agreement between Participant and the Company. 2.2 Settlement. (a) The RSUs will be paid in Shares as soon as administratively practicable after the vesting of the applicable RSU, but in no event later than March 15 of the year following the year in which the RSU’s vesting date occurs. (b) Notwithstanding the foregoing, the Company may delay any payment under this Agreement that the Company reasonably determines would violate Applicable Law until the earliest date the Company reasonably determines the making of the payment will not cause such a violation (in accordance with Treasury Regulation Section 1.409A-2(b)(7)(ii)); provided the Company reasonably believes the delay will not result in the imposition of excise taxes under Section 409A. ARTICLE III. TAXATION AND TAX WITHHOLDING 3.1 Representation. Participant represents to the Company that Participant has reviewed with Participant’s own tax advisors the tax consequences of this award of RSUs (the “Award”) and the transactions contemplated by the Grant Notice and this Agreement. Participant is relying solely on such advisors and not on any statements or representations of the Company or any of its agents.


 
3.2 Tax Withholding. (a) Subject to Section 3.2(b), payment of the withholding tax obligations with respect to the Award may be by any of the following, or a combination thereof, as determined by the Company in its sole discretion: (i) Cash or check; (ii) In whole or in part by delivery of Shares, including Shares delivered by attestation and Shares retained from the Award creating the tax obligation, valued at their Fair Market Value on the date of delivery; or (iii) In whole or in part by the Company withholding of Shares otherwise vesting or issuable under this Award in satisfaction of any applicable withholding tax obligations. (b) Unless the Company otherwise determines, and subject to Section 9.10 of the Plan, payment of the withholding tax obligations with respect to the Award shall be by delivery (including electronically or telephonically to the extent permitted by the Company) of an irrevocable and unconditional undertaking by a broker acceptable to the Company to deliver promptly to the Company sufficient funds to satisfy the applicable tax withholding obligations. (c) Subject to Section 9.5 of the Plan, the applicable tax withholding obligation will be determined based on Participant’s Applicable Withholding Rate. Participant’s “Applicable Withholding Rate” shall mean (i) if Participant is subject to Section 16 of the Exchange Act, the greater of (A) the minimum applicable statutory tax withholding rate or (B) with Participant’s consent, the maximum individual tax withholding rate permitted under the rules of the applicable taxing authority for tax withholding attributable to the underlying transaction, or (ii) if Participant is not subject to Section 16 of the Exchange Act, the minimum applicable statutory tax withholding rate or such other higher rate approved by the Company; provided, however, that (i) in no event shall Participant’s Applicable Withholding Rate exceed the maximum individual statutory tax rate in the applicable jurisdiction at the time of such withholding (or such other rate as may be required to avoid the liability classification of the applicable award under generally accepted accounting principles in the United States of America); and (ii) the number of Shares tendered or withheld, if applicable, shall be rounded up to the nearest whole Share sufficient to cover the applicable tax withholding obligation, to the extent rounding up to the nearest whole Share does not result in the liability classification of the RSUs under generally accepted accounting principles. (d) Participant acknowledges that Participant is ultimately liable and responsible for all taxes owed in connection with the RSUs, regardless of any action the Company or any Subsidiary takes with respect to any tax withholding obligations that arise in connection with the RSUs. Neither the Company nor any Subsidiary makes any representation or undertaking regarding the treatment of any tax withholding in connection with the awarding, vesting or payment of the RSUs or the subsequent sale of Shares. The Company and its Subsidiaries do not commit and are under no obligation to structure the RSUs to reduce or eliminate Participant’s tax liability. ARTICLE IV. OTHER PROVISIONS 4.1 Adjustments. Participant acknowledges that the RSUs and the Shares subject to the RSUs are subject to adjustment, modification and termination in certain events as provided in this Agreement and the Plan.


 
4.2 Clawback. The Award and the Shares issuable hereunder shall be subject to any clawback or recoupment policy in effect on the Grant Date or as may be adopted or maintained by the Company following the Grant Date, including the Dodd-Frank Wall Street Reform and Consumer Protection Act and any rules or regulations promulgated thereunder. 4.3 Notices. Any notice to be given under the terms of this Agreement to the Company must be in writing and addressed to the Company in care of the Company’s General Counsel at the Company’s principal office or the General Counsel’s then-current email address or facsimile number. Any notice to be given under the terms of this Agreement to Participant must be in writing and addressed to Participant (or, if Participant is then deceased, to the Designated Beneficiary) at Participant’s last known mailing address, email address or facsimile number in the Company’s personnel files. By a notice given pursuant to this Section, either party may designate a different address for notices to be given to that party. Any notice will be deemed duly given when actually received, when sent by email, when sent by certified mail (return receipt requested) and deposited with postage prepaid in a post office or branch post office regularly maintained by the United States Postal Service, when delivered by a nationally recognized express shipping company or upon receipt of a facsimile transmission confirmation. 4.4 Titles. Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement. 4.5 Conformity to Securities Laws. Participant acknowledges that the Plan, the Grant Notice and this Agreement are intended to conform to the extent necessary with all Applicable Laws and, to the extent Applicable Laws permit, will be deemed amended as necessary to conform to Applicable Laws. 4.6 Successors and Assigns. The Company may assign any of its rights under this Agreement to a single or multiple assignees, and this Agreement will inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth in this Agreement or the Plan, this Agreement will be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto. 4.7 Limitations Applicable to Section 16 Persons. Notwithstanding any other provision of the Plan or this Agreement, if Participant is subject to Section 16 of the Exchange Act, the Plan, the Grant Notice, this Agreement and the RSUs will be subject to any additional limitations set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule 16b-3) that are requirements for the application of such exemptive rule. To the extent Applicable Laws permit, this Agreement will be deemed amended as necessary to conform to such applicable exemptive rule. 4.8 Entire Agreement; Amendment. The Plan, the Grant Notice and this Agreement (including any exhibit hereto) constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and Participant with respect to the subject matter hereof. To the extent permitted by the Plan, this Agreement may be wholly or partially amended or otherwise modified, suspended or terminated at any time or from time to time by the Administrator or the Board; provided, however, that except as may otherwise be provided by the Plan, no amendment, modification, suspension or termination of this Agreement shall materially and adversely affect the RSUs without the prior written consent of Participant. 4.9 Agreement Severable. In the event that any provision of the Grant Notice or this Agreement is held illegal or invalid, the provision will be severable from, and the illegality or invalidity of the provision will not be construed to have any effect on, the remaining provisions of the Grant Notice or this Agreement.


 
4.10 Limitation on Participant’s Rights. Participation in the Plan confers no rights or interests other than as herein provided. This Agreement creates only a contractual obligation on the part of the Company as to amounts payable and may not be construed as creating a trust. Neither the Plan nor any underlying program, in and of itself, has any assets. Participant will have only the rights of a general unsecured creditor of the Company with respect to amounts credited and benefits payable, if any, with respect to the RSUs, and rights no greater than the right to receive cash or the Shares as a general unsecured creditor with respect to the RSUs, as and when settled pursuant to the terms of this Agreement. 4.11 Not a Contract of Employment. Nothing in the Plan, the Grant Notice or this Agreement confers upon Participant any right to continue in the employ or service of the Company or any Subsidiary or interferes with or restricts in any way the rights of the Company and its Subsidiaries, which rights are hereby expressly reserved, to discharge or terminate the services of Participant at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between the Company or a Subsidiary and Participant. 4.12 Counterparts. The Grant Notice may be executed in one or more counterparts, including by way of any electronic signature, subject to Applicable Law, each of which will be deemed an original and all of which together will constitute one instrument. 4.13 General Appendix and Country-Specific Appendix. Notwithstanding any provisions in this Agreement or the Plan to the contrary, if Participant resides outside of the United States, the RSUs shall be subject to any special terms and conditions set forth in the general appendix to this Agreement (the “General Appendix”) as well as the specific appendix for Participant’s country (the “Country-Specific Appendix”). Moreover, if Participant relocates to one of the countries included in the Country-Specific Appendix, the special terms and conditions for such country will apply to him or her unless determined otherwise by the Company. * * * * *


 
GENERAL APPENDIX TO RESTRICTED STOCK UNIT AGREEMENT FOR NON-US PARTICIPANTS 1. Service Conditions. In accepting the RSUs, Participant acknowledges and agrees that: (a) Subject to the individual terms under the Participant’s employment contract, any notice period mandated under Applicable Laws shall not be treated as service for the purpose of determining the vesting of the RSUs; and Participant’s right to vesting of Shares in settlement of the RSUs after termination of service, if any, will be measured by the date of termination of Participant’s active service and will not be extended by any notice period mandated under Applicable Laws. Subject to the foregoing and the provisions of the Plan, the Company, in its sole discretion, shall determine whether Participant’s service has terminated and the effective date of such termination. (b) The Plan is established voluntarily by the Company. It is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, unless otherwise provided in the Plan and this Agreement. (c) The grant of the RSUs is voluntary and occasional and does not create any contractual or other right to receive future grants of RSUs, or benefits in lieu of RSUs, even if RSUs have been granted repeatedly in the past. (d) All decisions with respect to future RSUs grants, if any, will be at the sole discretion of the Company. (e) Participant’s participation in the Plan shall not create a right to further service with the Company or another Subsidiary and shall not interfere with the ability of the Company or another Subsidiary to terminate Participant’s service at any time, with or without cause, subject to Applicable Laws. (f) Participant is voluntarily participating in the Plan. (g) The future value of the underlying Shares is unknown and cannot be predicted with certainty. The value of the Shares may increase or decrease. (h) No claim or entitlement to compensation or damages arises from termination of the RSUs or diminution in value of the RSUs or Shares and Participant irrevocably releases the Company and any Subsidiary from any such claim that may arise. If, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen then, by signing this Agreement, Participant shall be deemed irrevocably to have waived Participant’s entitlement to pursue such a claim.


 
2. Data Privacy. The following provisions shall only apply to Participant if he or she resides outside of the US, Brazil, the EU, EEA, and the UK: (a) Participant voluntarily consents to the collection, use, disclosure and transfer to the United States and other jurisdictions, in electronic or other form, of his or her personal data as described in this Agreement and any other award materials (“Data”) by and among, as applicable, the Company and any Subsidiary for the exclusive purpose of implementing, administering, and managing his or her participation in the Plan. If Participant does not choose to participate in the Plan, his or her employment status or service with the Company and any Subsidiary will not be adversely affected. (b) Participant understands that the Company and any Subsidiary may collect, maintain, process and disclose, certain personal information about him or her, including, but not limited to, his or her name, home address, email address and telephone number, date of birth, social insurance number, passport or other identification number, salary, nationality, job title, any Shares or directorships held in the Company, details of all equity awards or any other entitlement to Shares awarded, canceled, exercised, vested, unvested or outstanding in his or her favor, for the exclusive purpose of implementing, administering and, managing the Plan. (c) Participant understands that Data will be transferred to one or more service provider(s) selected by the Company, which may assist the Company with the implementation, administration and management of the Plan. Participant understands that the recipients of the Data may be located in the United States or elsewhere, and that the recipient’s country (e.g., the United States) may have different, including less stringent, data privacy laws and protections than his or her country. Participant understands that if he or she resides outside the United States, he or she may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. Participant authorizes the Company and any other possible recipients that may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing his or her participation in the Plan. (d) Participant understands that Data will be held only as long as is necessary to implement, administer and manage his or her participation in the Plan, including to maintain records regarding participation. Participant understands that if he or she resides in certain jurisdictions, to the extent required by Applicable Laws, he or she may, at any time, request access to Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents given by accepting these RSUs, in any case without cost, by contacting in writing his or her local human resources representative. Further, Participant understands that he or she is providing these consents on a purely voluntary basis. If Participant does not consent or if he or she later seeks to revoke his or her consent, his or her engagement as a service provider with the Company and any Subsidiary will not be adversely affected; the only consequence of refusing or withdrawing his or her consent is that the Company will not be able to grant him or her RSUs under the Plan or administer or maintain RSUs. Therefore, Participant understands that refusing or withdrawing his or her consent may affect his or her ability to participate in the Plan (including the right to retain the RSUs). Participant understands that he or she may contact his or her local human resources representative for more information on the consequences of his or her refusal to consent or withdrawal of consent.


 
The following provisions shall only apply to Participant if he or she resides in Brazil, the EU or EEA, the UK, or EU privacy laws are otherwise applicable: (a) Data Collected and Purposes of Collection. Participant understands that the Company, acting as controller, as well as the employing Subsidiary, will process, to the extent permissible under Applicable Laws, certain personal information about him or her, including name, home address and telephone number, information necessary to process the RSUs (e.g., mailing address for a check payment or bank account wire transfer information), date of birth, social insurance number or other identification number, salary, nationality, job title, employment location, details of all RSUs granted, canceled, vested, unvested or outstanding in his or her favor, and where applicable service termination date and reason for termination, any capital shares or directorships held in the Company (where needed for legal or tax compliance), and any other information necessary to process mandatory tax withholding and reporting (all such personal information is referred to as “Data”). The Data is collected from Participant, and from the Company and any Subsidiary, for the purpose of implementing, administering and managing the Plan pursuant to its terms. The legal bases (that is, the legal justification) for processing the Data is that it is necessary to perform, administer and manage the Plan pursuant to this Agreement between Participant and the Company, and in Company’s legitimate interests to comply with applicable non-EU laws when performing, administering and managing the Plan, subject to his or her interest and fundamental rights. The Data must be provided in order for Participant to participate in the Plan and for the parties to this Agreement to perform their respective obligations hereunder. If Participant does not provide Data, he or she will not be able to participate in the Plan and become a party to this Agreement. (b) Transfers and Retention of Data. Participant understands that the Data will be transferred to and among the Company and any Subsidiary, as well as service providers (such as stock administration providers, brokers, transfer agents, accounting firms, payroll processing firms or tax firms), for the purposes explained above, which are necessary to allow the Company to perform this Agreement. Participant understands that the recipients of the Data may be located in the United States and in other jurisdictions outside of the European Economic Area where the Company and any Subsidiary or its service providers have operations. The United States and some of these other jurisdictions have not been found by the European Commission to have adequate data protection safeguards. If the Company and any Subsidiary make transfers of Data outside of the European Economic Area, those transfers will be made solely to the extent necessary to perform this Agreement and take necessary actions in connection with such performance. In addition, service providers may commit to provide adequate safeguards for the transferred Data, such as standard contractual clauses approved by the European Commission. In that case, Participant may obtain details of the transfers by contacting privacy@bird.co. (c) Participant’s Rights in Respect of Data. Participant has the right to access his or her Data being processed by the Company as well as understand why the Company is processing such Data. Additionally, subject to Applicable Laws, Participant is entitled to have any inadequate, incomplete or incorrect Data corrected (that is, rectified). Further, subject to Applicable Laws, and under certain circumstances, Participant may be entitled to the following rights in regard to his or her Data: (i) to object to the processing of Data; (ii) to have his or her Data erased, such as where it is no longer necessary in relation to the purposes for which it was processed; (iii) to restrict the processing of his or her Data so that it is stored but not actively processed (e.g., while the Company assesses whether Participant is entitled to have Data erased); and (iv) to port a copy of the Data provided pursuant to this Agreement or generated by him or her, in a common machine-readable format. To exercise his or her rights, Participant may contact the applicable human resources representative. Participant may also contact the relevant data protection supervisory authority, as he or she has the right to lodge a complaint. 3. Electronic Delivery. Participant agrees that the Company’s delivery of any documents related to the Plan or Shares acquired under Plan (including the Plan, this Agreement, the Plan’s prospectus,


 
and any reports of the Company provided generally to the Company’s stockholders) to him or her may be made by electronic delivery, which may include the delivery of a link to a Company intranet or to the Internet site of a third party involved in administering the Plan, the delivery of the document via e-mail, or any other means of electronic delivery specified by the Company. If the attempted electronic delivery of such documents fails, Participant will be provided with a paper copy of the documents. Participant acknowledge that he or she may receive from the Company a paper copy of any documents that were delivered electronically at no cost to him or her by contacting the Company by telephone or in writing. Participant may revoke his or her consent to the electronic delivery of documents or may change the electronic mail address to which such documents are to be delivered (if Participant has provided an electronic mail address) at any time by notifying the Company of such revoked consent or revised e-mail address by telephone, postal service or electronic mail. Participant agrees that the foregoing online or electronic participation in the Plan shall have the same force and effect as documentation executed in hardcopy written form. Finally, Participant understands that he or she is not required to consent to electronic delivery of documents. 4. No Advice Regarding Grant. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations or assessments regarding Participant’s participation in the Plan, or his or her acquisition or sale of the underlying Shares. Participant is hereby advised to consult with his or her own personal tax, legal and financial advisors regarding his or her participation in the Plan before taking any action related to the Plan. 5. Language. If Participant has received this Agreement or any other document related to the RSUs translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control, subject to Applicable Laws. * * * * *


 
Country-Specific Appendix to RESTRICTED STOCK UNIT AGREEMENT FOR NON-US PARTICIPANTS This Country-Specific Appendix includes additional notifications, terms and conditions that govern the RSUs granted to Participant under the Plan if Participant resides in one of the countries listed below. Capitalized terms used but not defined in this Country-Specific Appendix have the meanings set forth in the Plan and/or this Agreement. Participant understands and agrees that the Company strongly recommends that Participant not rely on the information herein as the only source of information relating to the consequences of participation in the Plan because applicable rules and regulations regularly change, sometimes on a retroactive basis, and the information may be out of date at the time the RSUs vest under the Plan. Participant further understands and agrees that if Participant is a citizen or resident of a country other than the one in which Participant is currently working, transfer employment after grant of the RSUs, or is considered a resident of another country for Applicable Laws purposes, the information contained herein may not apply to Participant, and the Company shall, in its discretion, determine to what extent the terms and conditions contained herein shall apply. […] CANADA Terms and Conditions Termination of Service. Notwithstanding any provision of the Plan or this Agreement, the following provision shall apply to Participants employed in Canada on the date on which notification of termination (for any reason, with or without cause) or resignation from service is delivered: For purposes of this Agreement, Participant’s termination date shall mean the later of (i) the date upon which Participant ceases to perform services for the Company following the provision of such notification of termination or resignation from service and (ii) the end of any minimum period of notice of termination (if any) required by applicable employment or labour standards legislation. For clarity, unless otherwise expressly provided in this Agreement or determined by the Company, no RSUs will vest under the Plan following Participant’s termination date, and the termination date will not be extended by any period of deemed notice of termination under contract or at common or civil law in respect of which Participant may receive pay in lieu of notice of termination or damages in lieu of such notice. Participant will not be entitled to any further payments in respect of the value of any RSUs that have not yet vested as of Participant’s termination date and no RSUs or any pro-rated portion thereof shall be included in any entitlement to any pay in lieu of notice of termination or damages in lieu of such notice. Subject to any applicable statutory notice period, the Administrator shall have the exclusive discretion to determine when Participant is no longer actively providing services for purposes of the grant of RSUs. Language Consent. The parties to this Agreement acknowledge that it is their express wish that this Agreement, as well as all documents, notices, and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English. Consentement relatif à la langue utilisée. Les parties reconnaissent avoir exigé que cette convention («Agreement») soit rédigée en anglais, ainsi que tous les documents, avis et procédures judiciaires, éxécutés, donnés ou intentés en vertu de, ou liés directement ou indirectement à la présente.


 
Notifications Securities Law Information. Participant is permitted to sell Shares acquired through the Plan through the designated broker appointed by the Company, provided the resale of Shares acquired under the Plan takes place outside of Canada, including, if applicable, through the facilities of a stock exchange on which the Shares are listed. Foreign Asset/Account Reporting Information. Canadian residents are required to report any foreign property (e.g., Shares acquired under the Plan and possibly unvested RSUs) on form T1135 (Foreign Income Verification Statement) if the total cost of their foreign property exceeds C$100,000 at any time in the year. It is Participant’s responsibility to comply with these reporting obligations, and Participant should consult with his or her personal tax advisor in this regard. Share Settlement of RSUs. Notwithstanding anything to the contrary in the Plan or this Agreement, RSUs granted to Canadian Participants shall only be settled in treasury Shares and shall not be settled in cash. Section 7 Plan. Despite anything to the contrary in the Plan or this Agreement, the Company acknowledges and agrees that the RSUs granted hereunder are intended to be governed by section 7 of the Income Tax Act (Canada) (the “ITA”) and accordingly: (i) RSUs shall be paid in treasury Shares and shall not be paid in Shares purchased on the open market or in any other manner that may otherwise be contemplated under the Plan; (ii) Despite section 9.9 of the Plan, the Administrator shall not settle an Award in cash, or a combination of Shares and cash, without the advance written consent of the Participant, which consent may be given or withheld in the absolute discretion of the Participant; (iii) Despite the last sentence of Section 3.2(d) of this Agreement, the Company and its Subsidiaries shall do all things reasonably necessary to ensure that the RSUs are governed by section 7 of the ITA; (iv) Despite section 7.2 of the Plan, any Dividend Equivalents shall be paid currently in cash to the Participant and, for greater certainty, shall not credited to an account for the Participant or paid in Shares. […]


 

Execution Version 1 US-DOCS\137586120.8 THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT OR AGREEMENT IS SUBJECT TO THE SUBORDINATION AND INTERCREDITOR AGREEMENT, DATED AS OF DECEMBER 30, 2022, 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., 1393631 B.C. UNLIMITED LIABILITY COMPANY, AND BIRD CANADA INC. GUARANTEE This GUARANTEE (the “Guarantee”), dated as of December 30, 2022, made by Bird US OpCo, LLC (the “Guarantor”), is in favor of U.S. Bank Trust Company, National Association, as Collateral Agent (the “Collateral Agent”), and the Purchasers (the “Purchasers” and collectively with the Collateral Agent, the “Beneficiaries”) under the Note Purchase Agreement (as defined below). RECITALS 1. Bird Global, Inc., a Delaware corporation (the “Issuer”), and the Beneficiaries have entered into the Note Purchase Agreement dated as of December 30, 2022 (as amended, supplemented, or modified from time to time, the “Note Purchase Agreement”). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Note Purchase Agreement. 2. Prior to the Beneficiaries extending any credit to the Issuer under the Note Purchase Agreement, the Issuer is required to provide the Beneficiaries with a guarantee duly executed by the Guarantor, and this Guarantee is being delivered in satisfaction of such requirement. 3. The Guarantor, a wholly-owned Subsidiary of the Issuer, derives substantial direct and indirect benefits from the extensions of credit contemplated by the Note Purchase Agreement. GUARANTEE As an inducement to the Beneficiaries to enter into the Note Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Guarantor agrees as follows: 1. Guarantee. The Guarantor hereby unconditionally and irrevocably guarantees (as primary obligor and not merely as surety) to the Beneficiaries and their successors and permitted assigns the punctual and complete payment of all amounts due and payable and performance of all other Obligations (now or hereafter arising, by acceleration or otherwise) by the Issuer and the other Note Parties under the Note Purchase Agreement and the other Note Documents (the “Guaranteed Obligations”) without regard to any defense of any kind which the Guarantor may have or assert, and without abatement, suspension, deferment, or diminution of any event or condition whatsoever, provided, that, notwithstanding anything to the contrary hereunder, the Guaranteed Obligations of the Guarantor shall be limited to an aggregate amount equal to the


 
2 US-DOCS\137586120.8 largest amount that would not render this Guarantee subject to avoidance under Section 548 of the Bankruptcy Code or any comparable provisions of applicable law. 2. Guarantee Absolute and Unconditional. The Guarantor hereby agrees that its obligations shall be absolute, irrevocable, and unconditional and, without limiting the generality of the foregoing, shall not be released, discharged, or otherwise affected by: (a) any failure or delay to enforce the provisions of the Note Purchase Agreement or the other Note Documents; (b) the perfection, release or extent of any Collateral or Guarantor Collateral or any failure to realize on any Collateral or Guarantor Collateral; (c) any waiver, modification or consent to departure from, or amendment of the Note Purchase Agreement or the other Note Documents; (d) the invalidity, illegality or unenforceability of the Note Purchase Agreement or the Guaranteed Obligations; (e) any change in the corporate existence, structure, or ownership of the Issuer or the other Note Parties; or (f) any other circumstances (other than payment or conversion in full of the Obligations or the Guaranteed Obligations) which may otherwise constitute a legal or equitable discharge of a surety or guarantor. This Guarantee constitutes a guarantee of payment when due and not of collection. The Beneficiaries have no duty or responsibility whatsoever to the Guarantor and make no representation or warranty in respect of the management and maintenance of the Guaranteed Obligations or any collateral therefor. 3. Waiver by Guarantor. The Guarantor agrees that the Beneficiaries may at any time and from time to time, either before or after the maturity thereof, without notice to or further consent of the Guarantor, extend the time of payment of, exchange or surrender any collateral for, or renew any of the Guaranteed Obligations, and may also make any agreement with the Issuer for the extension, renewal, payment, compromise, discharge, or release thereof, in whole or in part, for any modification of the terms thereof or of any agreement between any of the Beneficiaries and the Issuer without in any way impairing or affecting this Guarantee. The Guarantor hereby waives notice of acceptance of this Guarantee, diligence, acceleration, presentment, notice of default or demand of payment to or upon the Issuer or the Guarantor, filing of claims with a court in the event of merger or bankruptcy of the Issuer, any right or requirement to proceed first against the Issuer, any protest or notice with respect to the Note Purchase Agreement or the obligations created or evidenced thereby and all demands whatsoever, any exchange, sale or surrender of, or realization on, any other guarantee or any collateral, and any and all other notices and surety defenses (other than payment in full) whatsoever. The Beneficiaries shall not be obligated to file any claim relating to the Guaranteed Obligations in the event that Issuer becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Beneficiaries to so file shall not affect the Guarantor’s obligations hereunder.


 
3 US-DOCS\137586120.8 4. Reinstatement in Certain Instances. The Guarantor further agrees that if any payment or delivery of any of the Guaranteed Obligations is subsequently rescinded or is subsequently recovered from or repaid by the recipient thereof, in whole or in part, in any bankruptcy, reorganization, insolvency or similar proceedings instituted by or against the Issuer, or otherwise, the Guarantor’s obligations hereunder with respect to such Guaranteed Obligation shall be reinstated at such time to the same extent as though the payment or delivery so recovered or repaid had not been originally made. 5. Security Interest. (a) As security for the performance by the Guarantor of all the terms, covenants and agreements on the part of the Guarantor to be performed under this Guarantee and any other Note Document, including all Guaranteed Obligations, the Guarantor hereby grants to the Collateral Agent for its benefit and the ratable benefit of the other Secured Parties, a continuing security interest in, all of the Guarantor’s right, title and interest in, to and under all of the following, whether now or hereafter owned, existing or arising (collectively, the “Guarantor Collateral”): (i) all electronic scooter vehicles, (ii) all other personal and fixture property or assets of the Guarantor of every kind and nature including, without limitation, all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts, chattel paper (whether tangible or electronic), deposit accounts, securities accounts, securities entitlements, letter-of-credit rights, commercial tort claims, securities and all other investment property, supporting obligations, money, any other contract rights or rights to the payment of money, insurance claims and proceeds, and all general intangibles (including all payment intangibles) (each as defined in the UCC), and (iii) all proceeds of, and all amounts received or receivable under any or all of, the foregoing. The Collateral Agent (for the benefit of the Secured Parties) shall have, with respect to all the Guarantor Collateral, and in addition to all the other rights and remedies available to the Collateral Agent (for the benefit of the Secured Parties), all the rights and remedies of a secured party under any applicable UCC. The Guarantor hereby authorizes the Collateral Agent (at the direction of the Required Purchasers) to file financing statements describing the collateral covered thereby as “all of the debtor’s personal property or assets” or words to that effect, notwithstanding that such wording may be broader in scope than the collateral described in this Guarantee. Notwithstanding the foregoing, the Guarantor Collateral shall not include, and no lien shall attach to, and no representation, warranty, or covenant contained herein or in any other Note Document shall apply to, the Guarantor’s deposit account maintained with Silicon Valley Bank with account number ending in x3275.


 
4 US-DOCS\137586120.8 (b) The Guarantor authorizes the Collateral Agent (at the direction of the Required Purchasers) to perfect the Collateral Agent’s security interest in the Guarantor Collateral by filing or authorizing the filing of, at the expense of the Guarantor, UCC-1 financing statements (including fixture filings) naming the Collateral Agent as secured party and describing the Guarantor Collateral in a manner that the Required Purchasrs reasonably determine is necessary or advisable to perfect the security interest granted hereunder. (c) At any time or from time to time upon the request of the Collateral Agent (at the direction of the Required Purchasers), the Guarantor will, at its expense, promptly execute, acknowledge, and deliver such further documents and do such other acts and things as the Required Purchasers reasonably determine is necessary or advisable to perfect the security interest granted hereunder. (d) Upon the Obligations becoming immediately due and payable, the Collateral Agent and the other Secured Parties shall have, in addition to the rights and remedies which they may have under this Guarantee and the other Note Documents, all other rights and remedies provided after default under the UCC and under other Applicable Law, which rights and remedies shall be cumulative. Any proceeds from liquidation of the Guarantor Collateral shall be applied pursuant to the Intercreditor Agreement. (e) Upon payment or conversion in full of the Obligations (other than inchoate indemnity obligations), the Guarantor Collateral shall be automatically released from the lien created hereby, and this Guarantee and all obligations (other than those expressly stated to survive such termination) of the Guarantor shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Guarantor Collateral shall revert to the Guarantor Upon any sale or other transfer of any Guarantor Collateral in a transaction permitted under and in accordance with the terms of the Note Purchase Agreement, or upon the effectiveness of any written consent of the Collateral Agent to the release of the Liens granted hereby on any Guarantor Collateral, the Collateral Agent’s Lien on such Guarantor Collateral shall be automatically released, and all rights therein shall revert to the Guarantor. Promptly following written request therefor by the Guarantor delivered to the Collateral Agent following any such termination or release, and at the expense of the Guarantor, the Collateral Agent shall execute and deliver to, and authorize the filing by, the Guarantor all financing statement amendments or termination statements and such other documents as the Guarantor shall reasonably request to evidence such termination or release and the Collateral Agent shall promptly deliver to the Guarantor all applicable Guarantor Collateral in its possession. 6. Representations and Warranties. The Guarantor hereby represents and warrants to the Beneficiaries that: (a) The Guarantor (i) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has full power and authority to own its properties and assets and to carry on its business as now being conducted and as presently contemplated, and (iii) has full power and authority to execute, deliver and perform its obligations under this Guarantee.


 
5 US-DOCS\137586120.8 (b) The execution, delivery and performance by the Guarantor of its obligations under this Guarantee will not (i) violate or conflict with (x) any provision of law, order, judgment, or decree of any court or other agency or government, (y) any provision of its constitutional documents, or (z) any agreement or other instrument to which the Guarantor is a party or is bound; (ii) result in a breach of, or constitute (with due notice or lapse of time or both) a default under any contractual provision to which it is bound; or (iii) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Guarantor pursuant to any indenture, agreement or instrument (other than pursuant to this Guarantee), except in the case of each of the foregoing clauses (i) through (iii) to the extent that any such conflict, breach, default, lien, charge, encumbrance, or violation as applicable, could not reasonably be expected to have a Material Adverse Effect. (c) Except where the failure to obtain or make such consent, approval or authorization could not reasonably be expected to have a Material Adverse Effect, all consents, approvals, or authorizations from any Governmental Authority that are required to be obtained in connection with or as a condition to the execution, delivery or performance of this Guarantee have been obtained or made and are in full force and effect. (d) The Guarantor is Solvent. (e) The Guarantor is not contemplating either a filing of a petition under any state or federal bankruptcy law, or the liquidating of all or a major portion of its property; and the Guarantor has no knowledge of any person contemplating the filing of such petition against it. (f) Perfection Representations. (i) This Guarantee creates a valid and continuing security interest (as defined in the applicable UCC) in the Guarantor’s right, title and interest in, to and under the Guarantor Collateral which (A) security interest has been perfected and is enforceable against the Guarantor and (B) will be free of all Adverse Claims in such Guarantor Collateral, except for Permitted Liens. (ii) The Guarantor owns and has good and marketable title to the Guarantor Collateral free and clear of any Lien of any Person other than Liens permitted to exist under the Note Purchase Agreement. (iii) All appropriate financing statements, financing statement amendments and continuation statements have been delivered to the proper filing office in the appropriate jurisdictions under Applicable Law in order to perfect (and continue the perfection of) the grant by the Guarantor of a security interest in the Guarantor Collateral to the Collateral Agent pursuant to this Guarantee. (iv) Other than the security interest granted to the Collateral Agent pursuant to this Guarantee, the Guarantor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Guarantor Collateral except as permitted by the Note Documents. The Guarantor has not authorized the filing of


 
6 US-DOCS\137586120.8 and, except as otherwise notified to the Collateral Agent in writing, is not aware of any financing statements filed against the Guarantor that include a description of collateral covering the Guarantor Collateral other than any financing statement (i) in favor of the Collateral Agent, (ii) evidencing a Permitted Lien, or (iii) that has been terminated. The Guarantor is not aware of any judgment lien, ERISA lien or tax lien filings against the Guarantor that are not permitted by this Guarantee and the other Note Documents. (v) Notwithstanding any other provision of this Guarantee or any other Note Document, the representations contained in this Section 6(f) shall be continuing and remain in full force and effect until payment or conversion in full of the Obligations (other than inchoate indemnity obligations). 7. Subrogation. The Guarantor shall be subrogated to all rights of the Beneficiaries against the Issuer in respect of any amounts paid or deliveries made by the Guarantor pursuant to the provisions of this Guarantee, provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until payment in full of all of the Guaranteed Obligations. 8. Expenses of Enforcement. The Guarantor further agrees to pay all reasonable and documented out-of-pocket costs and expenses, including reasonable attorneys’ fees, which are incurred by any of the Beneficiaries in any effort to collect or enforce any provision of this Guarantee. 9. Set-Off. Upon the Guaranteed Obligations becoming due and payable (by acceleration or otherwise) under the Note Purchase Agreement or any other applicable Note Document, each Beneficiary is hereby authorized to setoff, appropriate and apply (without presentment, demand, protest or other notice which are hereby expressly waived) any deposits and any other indebtedness held or owing by such Beneficiary (including by any branches or agencies of such Beneficiary) to, or for the account of, the Guarantor against amounts owing by the Guarantor hereunder (even if contingent or unmatured); provided, that such Beneficiary shall notify the Guarantor promptly following such setoff. 10. Incorporation by Reference. The provisions of Sections 10.8 and 13.14 and Exhibit D of the Note Purchase Agreement are incorporated herein by reference mutatis mutandis, as if fully set forth herein, with each reference to “Issuer” being deemed to be a reference to the Guarantor. 11. Governing Law; Submission to Jurisdiction. THIS GUARANTEE AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL MATTERS ARISING OUT OF OR RELATING IN ANY WAY TO THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICTS OF LAW PROVISIONS THEREOF, EXCEPT TO THE EXTENT THAT THE PERFECTION, THE EFFECT OF PERFECTION OR PRIORITY OF THE INTERESTS OF COLLATERAL AGENT OR ANY PURCHASER IN THE COLLATERAL IS GOVERNED BY THE LAWS OF A


 
7 US-DOCS\137586120.8 JURISDICTION OTHER THAN THE STATE OF NEW YORK). With respect to any suit, action or proceedings relating to this Guarantee (“Proceedings”), the Guarantor irrevocably: (a) submits to the exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City and irrevocably agrees to designate any Proceedings brought in the courts of the State of New York as “commercial” on the Request for Judicial Intervention seeking assignment to the Commercial Division of the Supreme Court; and (b) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings that such court does not have any jurisdiction over the Guarantor. Nothing in this Guarantee precludes the Beneficiaries from bringing Proceedings in any other jurisdiction in order to enforce any judgment obtained in any Proceedings referred to in the preceding sentence. 12. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS GUARANTEE OR ANY OTHER NOTE DOCUMENT. 13. Successor and Assigns. This Guarantee shall continue in full force and effect and be binding upon the Guarantor and the successors and permitted assigns of the Guarantor, provided, however, that the Guarantor may not assign or otherwise transfer this Guarantee or any obligations hereunder without the prior written consent of the Required Purchasers and any such assignment or transfer without such consent shall be void. The Beneficiaries may, concurrently with any assignment of their rights and obligations in accordance with the Note Purchase Agreement, assign this Guarantee or any rights or powers hereunder, with any or all of the underlying liabilities or obligations, the payment of which is guaranteed hereunder, in each case, subject to and in accordance with the terms and conditions of the Note Purchase Agreement. 14. Entire Agreement; Amendments and Waivers. This Guarantee supersedes any prior negotiations, discussions, or communications between the Beneficiaries and the Guarantor and constitutes the entire agreement between the Beneficiaries and the Guarantor with respect to the Note Purchase Agreement and this Guarantee. No provision of this Guarantee may be amended, modified, or waived without the prior written consent of the Required Purchasers. 15. Notices. All notices or other communications to the Guarantor and the Beneficiaries shall be delivered pursuant to the requirements set forth in Section 10 of the Note Purchase Agreement (the Guarantor’s address and email address for notices and other communications shall be the same as that of the Issuer). 16. Intercreditor Agreement. Notwithstanding anything herein to the contrary, the Guaranteed Obligations, pursuant to this Guarantee and the exercise of any right or remedy by the Collateral Agent and the other Secured Parties hereunder are subject to the provisions of the Intercreditor Agreement. In the event of any conflict or inconsistency between the provisions of the Intercreditor Agreement and this Guarantee, the provisions of the Intercreditor Agreement shall govern and control.


 
8 US-DOCS\137586120.8 [SIGNATURE PAGE FOLLOWS]


 
[Signature Page to Guarantee] IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be executed by one of its duly authorized representatives or officers. BIRD US OPCO, LLC By: /s/ Shane Torchiana Name: Shane Torchiana Title: Chief Executive Officer


 
[Signature Page to Guarantee] U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION By: /s/ Brandon Bonfig Name: Brandon Bonfig Title: Vice President


 

Bird Global Closes Financing and Completes Transaction with Bird Canada Transaction strengthens Bird’s balance sheet; cements North American leadership position MIAMI, Florida – January 3, 2023 – Bird Global, Inc. (NYSE:BRDS, “Bird”), a leader in environmentally friendly electric transportation, today announced that it has completed the transaction announced last month, which strengthens Bird’s liquidity position and balance sheet and positions the company to reach its 2023 goal of adjusted EBITDA profitability on a full year basis in 2023. Through the transaction, Bird: ● Received $30 million in cash by way of convertible notes, including a new $2 million personal investment by Travis VanderZanden, Bird’s Founder & Chair of the Board and a personal investment by Shane Torchiana, Bird’s CEO. Due to additional investment interest received, Bird intends to increase the size of this fundraise and to close on additional funding this quarter. ● Added new leadership with proven experience in scaling organizations and operating profitably. Additional details on new Board and leadership team members are available in the press release issued December 20, 2022. ● Acquired Bird Canada’s micromobility operations, to be integrated with Bird Global this quarter. These markets will add new profitable operations and further consolidate Bird’s leadership in North American micromobility. “I’m extremely excited by the road ahead and what we can do as one team,” said Shane Torchiana, CEO, Bird. “With this additional capital, we have bolstered our liquidity outlook and believe we are positioned to reach our goal of adjusted EBITDA profitability in 2023. We’ve seen the incredible impact that micromobility has for hundreds of communities around the world, enabling millions of riders to move around conveniently and communities to achieve their climate and mobility goals. I’m thrilled to welcome the Bird Canada team to turbo charge Bird’s global impact.” The transaction was unanimously approved by Bird’s Board of Directors. For further information regarding terms and conditions of the transaction, please see Bird’s Current Report on Form 8-K, filed in connection with the closing of the transaction. ### About Bird Bird is an electric vehicle company dedicated to bringing affordable, environmentally friendly transportation solutions such as e-scooters and e-bikes to communities across the world.


 
Founded in 2017 by transportation pioneer Travis VanderZanden, Bird is rapidly expanding. Today, Bird has facilitated over 175 million rides on Bird vehicles through its ride-sharing business and makes its products available for purchase at www.bird.co and via leading retailers and distribution partners. Bird partners closely with the cities in which it operates to provide a reliable and affordable transportation option for people who live and work there. Contacts Investor investor@bird.co Media press@bird.co Forward-Looking Statements This press release contains forward-looking statements. We intend such forward-looking statements to be covered by the safe harbor provisions for forward-looking statements contained in Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. All statements other than statements of historical facts may be forward-looking statements. Such forward-looking statements include, but are not limited to, statements regarding the expected benefits of the transaction; our intention to close on additional funding this quarter; our path to profitability and our future financial performance, operations, operating results and financial condition. We have based these forward-looking statements largely on our current expectations. These forward- looking statements involve known and unknown risks, uncertainties and other important factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements, including, but not limited to, the impact of the COVID-19 pandemic on our business, financial condition, and results of operations; our ability to cure our New York Stock Exchange (“NYSE”) price deficiency and meet the continued listing requirements of the NYSE; risks related to our relatively short operating history and our new and evolving business model, which makes it difficult to evaluate our future prospects, forecast financial results, and assess the risks and challenges we may face; our ability to achieve or maintain profitability in the future; our ability to retain existing riders or add new riders; our Fleet Managers’ ability to maintain vehicle quality or service levels; our ability to evaluate our business and prospects in the new and rapidly changing industry in which we operate; risks related to the impact of poor weather and seasonality on our business; our ability to obtain vehicles that meet our quality specifications in sufficient quantities on


 
commercially reasonable terms; our ability to compete successfully in the highly competitive industries in which we operate; risks related to our substantial indebtedness; our ability to secure additional financing; risks related to the effective operation of mobile operating systems, networks and standards that we do not control; risks related to action by governmental authorities to restrict access to our products and services in their localities; risks related to claims, lawsuits, arbitration proceedings, government investigations and other proceedings to which we are regularly subject; risks related to compliance, market and other risks, including the ongoing conflict between Ukraine and Russia, in relation to any expansion by us into international markets; risks related to the impact of impairment of our long-lived assets and the important factors discussed in Part I, Item 1A. “Risk Factors” in our Annual Report on Form 10-K/A for the year ended December 31, 2021 and Part II, Item 1A. “Risk Factors” in our Quarterly Report on Form 10-Q for the period ended September 30, 2022, and described from time to time in our future reports filed with the Securities and Exchange Commission. The forward-looking statements in this press release are based upon information available to us as of the date of this press release and while we believe such information forms a reasonable basis for such statements, these statements are inherently uncertain and you are cautioned not to unduly rely upon these statements. Except as required by applicable law, we do not plan to publicly update or revise any forward-looking statements contained in this press release, whether as a result of any new information, future events or otherwise.


 

v3.22.4
Cover
Dec. 29, 2022
Entity Information [Line Items]  
Document Type 8-K
Document Period End Date Dec. 29, 2022
Entity Registrant Name Bird Global, Inc.
Entity Incorporation, State or Country Code DE
Entity File Number 001-41019
Entity Tax Identification Number 86-3723155
Entity Address, Address Line One 392 NE 191st Street #20388
Entity Address, City or Town Miami
Entity Address, State or Province FL
Entity Address, Postal Zip Code 33179
City Area Code (866)
Local Phone Number 205-2442
Written Communications false
Soliciting Material false
Pre-commencement Tender Offer false
Pre-commencement Issuer Tender Offer false
Entity Emerging Growth Company true
Entity Ex Transition Period false
Entity Central Index Key 0001861449
Amendment Flag false
Common Class A  
Entity Information [Line Items]  
Title of 12(b) Security Class A common stock, par value $0.0001 per share
Trading Symbol BRDS
Security Exchange Name NYSE
Warrant  
Entity Information [Line Items]  
Title of 12(b) Security Warrants, each whole warrant exercisable to purchase one share of Class A common stock at an exercise price of $11.50 per share
Trading Symbol BRDS WS
Security Exchange Name NYSE

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}