As
filed with the U.S. Securities and Exchange Commission on December 27, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WHEELS UP EXPERIENCE INC.
(Exact name of registrant as specified in its
charter)
| Delaware |
|
98-1617611 |
(State
or Other Jurisdiction of
Incorporation or
Organization) |
|
(I.R.S.
Employer
Identification Number) |
2135 American Way
Chamblee, Georgia 30341
(212) 257-5252
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Matthew Knopf, Esq.
Chief Legal Officer
2135 American Way
Chamblee, Georgia 30341
(212) 257-5252
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
With copies to:
Jeremiah G. Garvey, Esq.
Seth H. Popick, Esq.
Cozen O’Connor P.C.
One Oxford Centre
301 Grant Street, 41st Floor
Pittsburgh, Pennsylvania 15219
Approximate
date of commencement of proposed sale to the public: From time to time on or after the effective date of this registration
statement.
If the only securities
being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box: ¨
If any of the securities
being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: x
If this Form is
filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ¨
If this Form is
a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is
a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon
filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is
a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities
or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large-accelerated
filer |
¨ |
Accelerated
filer |
¨ |
| Non-accelerated
filer |
x |
Smaller
reporting company |
x |
| |
|
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 7(a)(2)(B) of the Securities Act. ¨
The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment that
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended or until the registration statement shall become effective on such date as the Securities and Exchange
Commission acting pursuant to said Section 8(a), may determine.
The information in this base prospectus
is not complete and may be changed. We may not sell these securities until the registration statement filed with the U.S. Securities and
Exchange Commission is effective. This base prospectus is not an offer to sell these securities, and we are not soliciting offers to buy
these securities, in any state or other jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DECEMBER
27, 2024
PROSPECTUS
$400,000,000
Wheels Up Experience
Inc.
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
Wheels Up Experience Inc., a Delaware
corporation (“Wheels Up”, the “Company”, “we”, “us” or “our), may offer, issue
and sell from time to time, together or separately, the securities described in this prospectus in any combination in one offering or
multiple offerings, up to an aggregate of $400,000,000 of the securities described in this prospectus.
We will provide the specific terms of any securities
we may offer in supplements to this prospectus. You should read this prospectus and any applicable prospectus supplement carefully before
you invest. This prospectus may not be used to offer and sell any securities, unless accompanied by a prospectus supplement describing
the amount of securities being offered and terms of the offering of those securities. We may offer and sell these securities to or through
one or more underwriters, dealers or agents, or directly to purchasers on a continuous or delayed basis. We reserve the sole right to
accept, and together with any underwriters, dealers and agents, reserve the right to reject, in whole or in part, any proposed purchase
of securities. The names of any underwriters, dealers or agents involved in the sale of any securities, the specific manner in which
they may be offered and any applicable commissions or discounts will be set forth in the prospectus supplement covering the sales of
those securities.
Our Class A common stock, $0.0001 par value
per share (“Common Stock”), is traded on the New York Stock Exchange (the “NYSE”) under the symbol “UP.”
We have not yet determined whether any of the other securities that may be offered by this prospectus will be listed on any exchange,
inter-dealer quotation system or over-the-counter system. If we decide to seek a listing for any of those securities, that decision will
be disclosed in a prospectus supplement.
Investing in our securities involves a high
degree of risk. Before making a decision to invest in our securities, you should carefully consider the risks described under the section
entitled “Risk Factors” beginning on page 5 of this prospectus and those included under the same title
in our most recent Annual Report on Form 10-K, subsequent Quarterly Reports on Form 10-Q and other documents filed by us with
the Securities and Exchange Commission, including any risks described in any accompanying prospectus supplement.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus.
Any representation to the contrary is a criminal offense.
The date of this prospectus is ,
CONTENTS
You should rely only
on the information contained in this prospectus, any supplement to this prospectus or in any free writing prospectus, filed with the
United States Securities and Exchange Commission (the “SEC”). We have not authorized anyone to provide you with additional
information or information different from that contained in this prospectus filed with the SEC. We take no responsibility for, and can
provide no assurance as to the reliability of, any other information that others may give you. You should assume that the information
contained in this prospectus and any accompanying prospectus supplement, as well as information that we have previously filed with the
SEC, and incorporated by reference, is accurate only as of the date of the applicable document. Our business, financial condition, results
of operations and prospects may have changed since those dates.
The distribution of this
prospectus and any accompanying prospectus supplement and the offering of our securities in certain jurisdictions may be restricted by
law. If you possess this prospectus or any accompanying prospectus supplement, you should find out about and observe these restrictions.
This prospectus and any accompanying prospectus supplement are not an offer to sell our securities and are not soliciting an offer to
buy our securities in any jurisdiction where the offer or sale is not permitted or where the person making the offer or sale is not qualified
to do so or to any person to whom it is not permitted to make such offer or sale. See “Plan of Distribution” in this
prospectus.
For investors outside
the United States: we have not done anything that would permit this offering or possession or distribution of this prospectus in any
jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United States who come into
possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of our securities
and the distribution of this prospectus outside the United States.
To the extent there is
a conflict between the information contained in this prospectus, on the one hand, and the information contained in any document incorporated
by reference filed with the SEC before the date of this prospectus, on the other hand, you should rely on the information in this prospectus.
If any statement in a document incorporated by reference is inconsistent with a statement in another document incorporated by reference
having a later date, the statement in the document having the later date modifies or supersedes the earlier statement.
ABOUT
THIS PROSPECTUS
This prospectus is part
of a “shelf” registration statement on Form S-3 that we filed with the SEC. By using a shelf registration statement,
we may sell, at any time and from time to time, in one or more offerings, any combination of the securities described in this prospectus.
The exhibits to our registration statement and documents incorporated by reference herein and therein contain the full text of certain
contracts and other important documents that we have summarized in this prospectus or that we may summarize in a prospectus supplement.
Since these summaries may not contain all the information that you may find important in deciding whether to purchase the securities
we offer, you should review the full text of these documents. The registration statement, the exhibits and other documents can be obtained
from the SEC as indicated under the sections in this prospectus entitled “Where You Can Find More Information” and
“Information Incorporated by Reference.”
We have not authorized anyone
to provide you with any information or to make any representations other than those contained in this prospectus or any applicable prospectus
supplement or any free writing prospectuses prepared by or on behalf of us or to which we have referred you. We do not take responsibility
for, and can provide no assurance as to the reliability of, any other information that others may give you. We will not make an offer
to sell these securities in any jurisdiction where the offer or sale is not permitted.
This
prospectus only provides you with a general description of the securities we may offer, which is not meant to be a complete description
of each security. Each time we sell securities, we will provide a prospectus supplement that contains specific information about the
terms of those securities. The prospectus supplement may also add, update or change information contained in this prospectus. You should
read both this prospectus and any applicable prospectus supplement or post-effective amendment to the registration statement together
with the additional information to which we refer you in the sections of this prospectus entitled “Where You Can Find More Information”
and “Information Incorporated by Reference.” To the extent there is a conflict between the information contained in
this prospectus, on the one hand, and the information contained in any document incorporated by reference filed with the SEC before the
date of this prospectus, on the other hand, you should rely on the information in this prospectus. If any statement in a document incorporated
by reference is inconsistent with a statement in another document incorporated by reference having a later date, the statement in the
document having the later date modifies or supersedes the earlier statement. When we refer to “we,” “our,”
“us,” “Wheels Up” and the “Company” in this prospectus, we mean Wheels Up Experience Inc. and its
consolidated subsidiaries, unless otherwise specified. When we refer to “you,” we mean the potential holders of shares of
our securities.
TRADEMARKS,
SERVICE MARKS AND TRADE NAMES
This prospectus contains
some of our trademarks, service marks and trade names, including, among others, Wheels Up. Each one of these trademarks, service marks
or trade names is either (1) our registered trademark, (2) a trademark for which we have a pending application, or (3) a
trade name or service mark for which we claim common law rights. All other trademarks, trade names or service marks of any other company
appearing in this prospectus belong to their respective owners. Solely for convenience, the trademarks, service marks and trade names
referred to in this prospectus are presented without the TM, SM and ® symbols, but such references are not intended
to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our respective rights or the rights of
the applicable licensors to these trademarks, service marks and trade names.
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains
certain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the
“Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Forward-looking statements are predictions, projections and other statements about future events that are based on current expectations
and assumptions and, as a result, are subject to known and unknown risks, uncertainties, assumptions and other important factors, many
of which are outside of the control of Wheels Up that could cause actual results to differ materially from the results discussed in the
forward-looking statements. These forward-looking statements include, but are not limited to, statements regarding the expectations,
hopes, beliefs, intentions or strategies of Wheels Up regarding the future. The words “anticipate,” “believe,”
continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,”
“plan,” “possible,” “potential,” “predict,” “project,” “should,”
“strive,” “would” and similar expressions may identify forward-looking statements, but the absence of these words
does not mean that statement is not forward-looking. We have identified certain known material risk factors applicable to Wheels Up,
including those described under “Risk Factors” elsewhere in this prospectus, and in our most recent Annual Report
on Form 10-K under Part I, Item 1A — “Risk Factors,” and our other filings with the SEC from time-to-time,
which are incorporated by reference herein. Moreover, it is not always possible for us to predict how new risks and uncertainties that
arise from time to time may affect us. You are cautioned not to place undue reliance upon any forward-looking statements, which speak
only as of the date made. Except as required by law, we do not intend to update any of these forward-looking statements after the date
of this prospectus.
You should read this prospectus
and the documents that we incorporate by reference in this prospectus and have filed with the SEC as exhibits to the registration statement
of which this prospectus is a part with the understanding that our actual future results, levels of activity, performance and events
and circumstances may be materially different from what we expect.
SUMMARY
This summary highlights
information contained elsewhere in this prospectus or incorporated by reference herein. This summary is not complete and does not contain
all of the information that you should consider before buying any shares of our Common Stock offered pursuant to this prospectus and
any applicable prospectus supplement. You should read this entire prospectus carefully, including the section entitled “Risk Factors”
beginning on page 5 of this prospectus and all other information, including our consolidated financial statements and the
related notes, that are included or incorporated by reference in this prospectus and any applicable prospectus supplement before you
decide to purchase any securities offered pursuant to this prospectus and any applicable prospectus supplement.
Wheels Up is a leading provider
of on-demand private aviation in the United States and one of the largest companies in the industry. Wheels Up offers a complete global
private aviation solution with a large and diverse aircraft fleet, backed by an uncompromising commitment to safety and service. Our
offering is delivered through a mix of our member programs and charter solutions that strategically utilize our owned and leased aircraft
fleet and an “asset-light” charter model to deliver a greater range of global travel alternatives. In addition, our unique
partnership with Delta Air Lines, Inc. (“Delta”) allows Wheels Up to offer a wide variety of aviation solutions across
both private and premium commercial travel.
Wheels Up has one of the
largest and most diverse mixes of available aircraft in the industry, including our owned and leased fleet that includes Light, Midsize,
Super-Midsize and Large-Cabin jets, and Turboprops. We utilize our controlled aircraft fleet to support both Wheels Up’s membership
and charter flights depending on the member’s or customer’s specific mission. We also have access to a large and diverse
fleet and a global network of safety-vetted charter operators, which must continually satisfy our safety standards for aircraft, crew
and operations. Together, our controlled aircraft fleet and global network of third-party operators position us to provide our members
and customers with the right aircraft for the right mission, and create the opportunity for our members and customers to select a mode
of travel that works for their specific needs.
Corporate Information
Wheels Up’s principal
executive offices are located at 2135 American Way, Chamblee, Georgia 30341. Our telephone number is (212) 257-5252 and our
internet address is www.wheelsup.com. The information on, or that can be accessed through, our website is not incorporated by
reference and is not part of this prospectus or the registration statement of which this prospectus is a part. The website address is
included as an inactive textual reference only.
RISK
FACTORS
An
investment in our securities involves risks and uncertainties. You should carefully consider the risks set forth under “Risk Factors”
in any applicable prospectus supplement, in our most recent Annual Report on Form 10-K under Part I, Item 1A —
“Risk Factors,” which is incorporated by reference herein, and all of the other information contained or incorporated by
reference in this prospectus, before investing in our securities. We operate in a changing environment that involves numerous known and
unknown risks and uncertainties that could materially adversely affect our operations. Additional risks and uncertainties not currently
known to us or those we currently view to be immaterial may also materially and adversely affect our business, financial condition, results
of operations or prospects. In such a case, the trading price of our securities could decline and you may lose all or part of your investment
in us. In addition, much of the business information, as well as the financial and operational data contained in our risk factors, are
updated by our periodic reports filed with the SEC pursuant to the Exchange Act, which are also incorporated by reference into the registration
statement of which this prospectus is a part. For more information, see “Where You Can Find More Information” and
“Information Incorporated by Reference.”
USE
OF PROCEEDS
Unless we indicate
otherwise in a prospectus supplement, in accordance with the terms of the Seventh Amended and Restated Limited Liability Company
Agreement of Wheels Up Partners Holdings LLC, a Delaware limited liability company and our direct subsidiary (“WUP
Holdings”), as amended by Amendment No. 1 thereto, dated April 1, 2022, and as further amended by Amendment
No. 2 thereto, dated June 7, 2023 (the “WUP Holdings Company Agreement”), we intend to contribute the net
proceeds from any sale of the offering of securities under this prospectus to WUP Holdings, which is the entity through which,
together with its subsidiaries, we conduct substantially all of our business and operations. WUP Holdings will subsequently use
the net proceeds from the sale of the securities offered by this prospectus and the applicable prospectus supplement for general
corporate purposes, which may include, but are not limited to, to provide or supplement working capital, for capital expenditures,
for advances to or investments in our subsidiaries, for acquisitions, to redeem or repay outstanding indebtedness, to pay dividends
or to repurchase our outstanding debt or equity securities.
We may temporarily invest
any net proceeds prior to their use for the above purposes in U.S. government or agency obligations, commercial paper, money market funds,
taxable and tax-exempt notes and bonds, variable-rate demand obligations, short-term investment grade securities, bank certificates of
deposit or repurchase agreements collateralized by U.S. government or agency obligations. We may also deposit the net proceeds with banks.
Further details regarding
the use of the net proceeds from the offer and sale of a specific series or class of the securities will be set forth in the applicable
prospectus supplement.
DESCRIPTION
OF OUR COMMON STOCK
The following summary
of the material terms of certain provisions of the securities of Wheels Up is not intended to be a complete summary of the rights
and preferences of such securities, and is qualified by reference to our Amended and Restated Certificate of Incorporation, dated as
of November 15, 2023 (the “Certificate of Incorporation”), our Amended and Restated By-Laws, effective as of November 15, 2023
(the “By-Laws” and, together with the Certificate of Incorporation, the “Organizational Documents”), the Subscription
Agreements (as defined herein), the Warrant Agreement (as defined herein), the Investor Rights Agreement (as defined herein), the 2023 Registration
Rights Agreement (as defined herein) and the 2021 Registration Rights Agreement (as defined herein), which are exhibits to the Company’s
Annual Report on Form 10-K for the year ended December 31, 2023, which is incorporated herein by reference. Stockholders
are urged to read the Organizational Documents, each as in effect as of the date that the registration statement of which this prospectus
is a part is filed with the SEC in their entirety for a complete description of the powers, preferences and rights of our securities.
Capital Stock
We urge you to read the:
(i) Organizational Documents; (ii) Investment and Investor Rights Agreement, dated as of September 20, 2023, by and
among Wheels Up and the entities listed on Schedule A thereto from time to time (collectively, the “Investors”) (as amended
by Amendment No. 1 thereto, dated as of November 15, 2023, and Amendment No. 2 thereto, dated as of September 22, 2024,
and as supplemented by the several Joinders thereto, the “Investor Rights Agreement”); (iii) Registration Rights Agreement,
dated as of September 20, 2023, by and among Wheels Up and the equity holders set forth on Schedule 1 thereto from time to
time (as supplemented by the several Joinders thereto, the “2023 Registration Rights Agreement”); and (iv) Amended and
Restated Registration Rights Agreement, dated as of July 13, 2021, by and among Wheels Up, Aspirational Consumer Lifestyle Sponsor
LLC, a Cayman Islands limited liability company (the “Sponsor”), certain former equityholders of WUP Holdings and the other
parties thereto (the “2021 Registration Rights Agreement”).
The
total amount of our authorized capital stock consists of 1,500,000,000 shares of Common Stock and 25,000,000 shares of preferred
stock, $0.0001 par value per share. The following summary describes the material provisions of our capital stock. As of
December 26, 2024, there were 697,902,646 shares of Common Stock issued and outstanding and no shares of our preferred
stock outstanding. The number of shares of our Common Stock outstanding does not include shares of our Common Stock issuable upon
the exercise of outstanding options or the vesting of any equity awards under our equity incentive plans, upon the exchange of
profits interests related to Wheels Up MIP LLC, or upon exercise of any warrants or shares that may become issuable if the
earnout is achieved.
Generally, holders of Common
Stock are not entitled to preemptive or other similar subscription rights to purchase any of our securities under the Organizational
Documents. Shares of Common Stock are neither convertible nor redeemable. In addition, there are no redemption rights with respect
to shares of Common Stock. The Organizational Documents generally do not impose any restrictions on alienability of shares of Common
Stock. All shares of our capital stock have been issued in uncertificated form.
Pursuant to the WUP Holdings
Company Agreement, if we issue shares of Common Stock or other equity securities, generally, WUP Holdings is required to issue to us
an equal number of common units of WUP Holdings (if we issue shares of Common Stock) or an equal number of equity securities of WUP Holdings
corresponding to the equity securities we issued (if we issue securities other than Common Stock), and we are required to concurrently
contribute to WUP Holdings the net proceeds or other property received by us, if any, for such shares of Common Stock or other equity
securities.
Stockholder Voting Rights and
Quorum
Except as described below
with respect to the Investor Rights Agreement, each holder of shares of Common Stock is entitled to one vote per share on each matter
submitted to a vote of stockholders, as provided in the Certificate of Incorporation. The By-Laws provide that the holders of a majority
of the capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy (which, for the avoidance
of doubt and to the fullest extent permitted by law, excludes any Excess Shares (as defined herein) or shares which the Company
and any stockholder have agreed in writing are not be entitled to vote or considered outstanding for the purposes of any vote of the
Company’s stockholders at a meeting), will constitute a quorum at all meetings of the stockholders for the transaction of business.
However, when specified business is to be voted on by a class or series of stock voting as a class, the holders of shares representing
a majority of the voting power of the outstanding shares of such class or series shall constitute a quorum of such class or series for
the transaction of such business. When a quorum is present, the affirmative vote of a majority of the votes cast will be required to
take action, unless otherwise specified by law, the By-Laws, the Certificate of Incorporation or applicable stock exchange rules, and
except for the election of directors, which is determined by a plurality vote of the votes cast.
Stockholder Consent Rights
Pursuant to the Investor
Rights Agreement, the Company may not issue, redeem or repurchase any equity securities of the Company or any of its subsidiaries (other
than, in each case, issuances, awards, redemptions or repurchases of equity securities approved by the Company’s Board of Directors
(the “Board”) under any management incentive plan) without the prior written consent of each of Delta, so long as Delta
is entitled to designate at least one director pursuant to Section 6.01 of the Investor Rights Agreement, and CK Wheels LLC
(“CK Wheels”), so long as CK Wheels is entitled to designate at least one director pursuant to Section 6.01
of the Investor Rights Agreement.
Contractual Right of First Offer
Under the Investor Rights
Agreement, for as long as certain term loan commitments of the Company remain outstanding, the Investors are entitled to notice of any
proposed offering by the Company of any equity securities in a private placement in connection with equity financing for cash proposed
by Delta or CK Wheels and may purchase the equity securities proposed to be issued at the price and terms specified in the notice.
Dividend Rights
Each holder of our capital
stock is entitled to the payment of dividends and other distributions as may be declared by the Board from time to time out of our assets
or funds legally available for dividends or other distributions. These rights will be subject to the preferential rights of the holders
of our preferred stock, if any, and any contractual limitations on our ability to declare and pay dividends, including pursuant to the
WUP Holdings Company Agreement.
Pursuant to the Investor
Rights Agreement, the Company may not change, modify or alter the dividend policy of the Company and its subsidiaries without the prior
written consent of each of Delta, so long as Delta is entitled to designate at least one director pursuant to Section 6.01 of the
Investor Rights Agreement, and of CK Wheels, so long as CK Wheels is entitled to designate at least one director pursuant to
Section 6.01 of the Investor Rights Agreement.
Liquidation Rights
If we are involved in a
voluntary or involuntary liquidation, dissolution or winding up of our affairs, or a similar event, each holder of shares of Common Stock
will participate pro rata in all assets remaining after payment of liabilities, subject to prior distribution rights of our preferred
stock, if any, then outstanding.
Anti-Takeover Effects of the Certificate of
Incorporation, the By-Laws and Certain Provisions of Delaware Law
The Organizational
Documents and the Delaware General Corporation Law (“DGCL”) contain, provisions, as summarized in the following
paragraphs, which are intended to enhance the likelihood of continuity and stability in the composition of the Board and to
discourage certain types of transactions that may involve an actual or threatened acquisition of the Company. In addition, under the
Investor Rights Agreement, each of Delta and CK Wheels, so long as each has the right to designate at least one director to the
Board, must consent to: (i) the acquisition, by merger, consolidation, acquisition of stock or assets or otherwise, directly or
indirectly, of any assets, securities, properties or businesses, in each case, with a value in excess of $10.0 million per
occurrence or in the aggregate, other than to the extent permitted under the Credit Facility (as defined in the Investor Rights
Agreement); or (ii) the sale, assignment, lease, sublease, license, sublicense or otherwise transfer or disposal of, any assets
of the Company or its subsidiaries with a value in excess of $10.0 million per occurrence or in the aggregate, other than to
the extent permitted under the Credit Facility (as defined in the Investor Rights Agreement). These provisions are intended to avoid
costly takeover battles, reduce the Company’s vulnerability to a hostile change of control or other unsolicited acquisition
proposal, and enhance the ability of the Board to maximize stockholder value in connection with any unsolicited offer to acquire the
Company. However, these provisions may have the effect of delaying, deterring or preventing a merger or acquisition of the Company
by means of a tender offer, a proxy contest or other takeover attempt that a stockholder might consider in its best interest,
including attempts that might result in a premium over the prevailing market price for the shares of Common Stock.
Special Meetings of Stockholders
The Certificate of Incorporation
provides that a special meeting of stockholders may be called by the (i) Chairperson of the Board, (ii) the Company’s
Chief Executive Officer or (iii) the Board pursuant to a resolution adopted by a majority of the Board, provided that such special
meeting may be postponed or cancelled by the Board.
Requirements for Advance Notification
of Stockholder Meetings, Nominations and Proposals
The By-Laws establish advance
notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors, other than nominations
made by or at the direction of the Board or a committee of the Board. For any matter to be “properly brought” before a meeting,
a stockholder has to comply with advance notice requirements and provide Wheels Up with certain information. Generally, to be timely,
a stockholder’s notice must be received at our principal executive offices not less than 90 days nor more than 120 days prior to
the first anniversary date of the immediately preceding annual meeting of stockholders. The By-Laws also specify requirements as to the
form and content of a stockholder’s notice. Except as otherwise set forth in the Investor Rights Agreement with respect to certain
stockholders and subject to the applicable terms and conditions described therein, any nomination of candidates for election as a director
by a stockholder must comply with the requirements of Rule 14a-19 under the Exchange Act. The By-Laws allow the presiding officer
at a meeting of the stockholders to adopt rules and regulations for the conduct of meetings which may have the effect of precluding
the conduct of certain business at a meeting if the rules and regulations are not followed. These provisions may also defer, delay
or discourage a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or
otherwise attempting to influence or obtain control of Wheels Up.
Stockholder Action by Written
Consent
The Certificate of Incorporation
provides that any action required or permitted to be taken by the stockholders may be taken by written consent in lieu of a meeting if
such action permitted to be taken by such holders and the written consent is signed by the holders of outstanding shares of the relevant
class or series having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting.
Authorized but Unissued Capital
Stock
Delaware law does not require
stockholder approval for any issuance of authorized shares. However, the listing requirements of the NYSE, which would apply if and so
long as the Common Stock remains listed on the NYSE, require, subject to limited exceptions, that Wheels Up’s stockholders approve
(i) certain issuances equal to or exceeding 20% of the then outstanding voting power or number of outstanding shares of Common Stock,
(ii) the issuance of Common Stock in any transaction or series of related transactions, to a director, officer or substantial security
holder of the company (each a “Related Party”) if the number of shares of Common Stock to be issued, or if the number
of shares of Common Stock into which the securities may be convertible or exercisable, exceeds either 1% of the then outstanding voting
power or number of outstanding shares of Common Stock, (iii) the issuance of Common Stock in any transaction or series of related
transaction in which a Related Party has a 5% or greater interest, directly or indirectly, in the Company or assets to be acquired or
in the consideration to be paid and the issuance of Common Stock, or securities convertible into Common Stock, could result in an issuance
that exceeds either five percent of the number of shares of Common Stock or 5% of the voting power outstanding before the issuance, or
(iv) any issuance that will result in a change of control of Wheels Up. Additional shares that may be issued in the future may be
used for a variety of corporate purposes, including to raise additional capital or to facilitate acquisitions.
One of the effects of the
existence of unissued and unreserved Common Stock may be to enable the Board to issue shares to persons friendly to current management,
which such issuance could render more difficult or discourage an attempt to obtain control of Wheels Up by means of a merger, tender
offer, proxy contest or otherwise and thereby protect the continuity of management and possibly deprive stockholders of opportunities
to sell their shares of Common Stock at prices higher than prevailing market prices.
No Cumulative Voting
Under Delaware law, the
right to vote cumulatively does not exist unless the certificate of incorporation expressly authorizes cumulative voting. The Certificate
of Incorporation does not authorize cumulative voting.
Limited Voting by Foreign and Certain Other Stockholders
To comply with restrictions
imposed by federal law on ownership of United States (“U.S.”) airlines by persons who may be deemed not to be a “citizen
of the United States” pursuant to 49 USC § 40102(a)(15)(C) (such persons, “Non-U.S. Citizens” and such limitation,
the “Citizenship Limitation”), the Certificate of Incorporation and By-Laws restrict voting of shares of our capital stock
by Non-U.S. Citizens. The restrictions imposed by federal law currently require that no more than 25% or our voting stock be voted, directly
or indirectly, by persons who are Non-U.S. Citizens, and that our chief executive officer, president, at least two-thirds of our officers
and at least two-thirds of the Board be a “citizen of the United States” pursuant to 49 USC § 40102(a)(15)(C). The Certificate
of Incorporation provides that no shares of our capital stock may be voted by or at the direction of Non-U.S. Citizens unless such shares
are registered on the Foreign Stock Record (as defined in the By-Laws). If the number of shares on the Foreign Stock Record exceeds 25%
(such shares in excess of 25%, the “Excess Shares”), each stockholder with capital stock registered on the Foreign Stock
Record will have their voting rights suspended on a pro rata basis such that the voting rights afforded to the capital stock registered
on the Foreign Stock Record is equal to 25% of the total voting power of our capital stock. The voting rights will be reinstated once
the voting rights of the capital stock registered on the Foreign Stock Record does not exceed 25% of the total voting power of our capital
stock, not taking into consideration the pro rata reduction.
Pursuant to the Investor
Rights Agreement, certain of our stockholders have agreed to limit the number of shares of Common Stock they are entitled to vote at
any meeting of the Company’s stockholders or for the purpose of consummating any consent solicitation (collectively, the “Voting
Limitations”), as follows:
| · | CK Wheels cannot vote more
than 24.9%, less the Whitebox Non-U.S. Voting Percentage (as defined below) (if any),
of the Company’s issued and outstanding shares as a result of the Citizenship Limitation,
and pursuant to the Certificate of Incorporation and Investor Rights Agreement; |
| · | each of Pandora Select Partners,
L.P., Whitebox Multi-Strategy Partners, L.P. and Whitebox Relative Value Partners, L.P. cannot
vote more than 0.043%, 0.595% and 0.362% (collectively, the “Whitebox Non-U.S. Voting
Percentage”), respectively, of the Company’s issued and outstanding shares as
a result of the Citizenship Limitation, and pursuant to the Certificate of Incorporation
and Investor Rights Agreement (together with the voting limitation in the immediately preceding
bullet, the “Non-U.S. Investor Voting Limitations”); and |
| · | any shares in excess of 29.9% of
the Company’s issued and outstanding shares owned by Delta will be neutral shares with
respect to voting rights, voted in proportion to all other votes cast (“for”,
“against” or “abstain”) at any meeting of the Company’s
stockholders other than by Delta. |
The Excess Shares owned:
(i) in excess of 24.9%, less the Whitebox Non-U.S. Voting Percentage (if any), by CK Wheels; and (ii) in excess of the applicable
Whitebox Non-U.S. Voting Percentage by the applicable Whitebox Non-U.S. Entity, in each case will not be counted as issued and outstanding
for purposes of counting votes at any meeting of the Company’s stockholders or with respect to any consent solicitation.
Election of Directors and Appointment
of Directors to Fill Vacancies
The Certificate of
Incorporation provides that the Board will determine the number of directors who will serve on the Board. Under the Certificate of
Incorporation, the Board will be divided into three classes designated as Class I, Class II and Class III. Class I,
Class II and Class III directors initially served for terms that expired at the first, second and third annual meeting of
stockholders, respectively, following July 13, 2021. At each succeeding annual meeting of stockholders, directors will be elected
for a full term of three years to succeed the directors of the class whose terms expire at such annual meeting of the stockholders.
There is no limit on the number of terms a director may serve on the Board.
In addition, the Certificate
of Incorporation provides that any vacancy on the Board, including a vacancy that results from an increase in the number of directors
or a vacancy that results from the removal of a director with cause, may be filled only by a majority of the directors then in office.
Each director will serve until his or her successor is duly elected and qualified or until his or her earlier death, resignation, retirement,
disqualification or removal. No decrease in the number of directors constituting the Board will shorten the term of any incumbent director.
Pursuant to the Investor
Rights Agreement, each of the Company and the Investors are required to use its best efforts to cause the Board to be comprised of 12
directors as follows immediately following the Closing (as defined in the Investor Rights Agreement):
| · | four (4) designees of Delta,
with two (2) of such directors designated to serve as Class III directors and the
others designated to serve as Class I directors; |
| · | four (4) designees of CK Wheels,
with two (2) of such directors designated to serve as Class III directors and the
others designated to serve as Class I directors; |
| · | one (1) designee of Cox Investment
Holdings LLC (“CIH”), designated to serve as a Class II director; |
| · | the Company’s Chief Executive
Officer, designated to serve as a Class II director; |
| · | Tim Armstrong, designated to serve
as a Class II director; and |
| · | David Adelman, designated to serve
as a Class II director. |
Upon Mr. Adelman’s
resignation from the Board in August 2024, Gregory Summe was appointed to the Board to fill the vacancy created upon Mr. Adelman’s
resignation.
The rights of Delta, CK Wheels
and CIH to designate directors may diminish or be forfeited in the event such entity or its affiliates or permitted transferees ceases
to hold a given percentage (i.e., 30%, 50% or 75%) of the number of shares issued to such Investor pursuant to the Investor Rights
Agreement.
Removal of Directors
Subject to the issuance
of any of Wheels Up preferred stock, the Board or any individual director may be removed from office at any time, but only for cause
and only by the affirmative vote of the holders of at least two-thirds of the voting power of all of the then outstanding shares of Wheels
Up’s voting stock entitled to vote at an election of directors, voting together as a single class.
Pursuant to the Investor
Rights Agreement and subject to the Organizational Documents, each of Delta, CK Wheels and CIH have the exclusive right to remove its
nominees from the Board and designate directors for election or appointment, as applicable, to the Board in accordance with such Investor’s
rights to fill vacancies created by reason of death, removal or resignation of its nominees to the Board.
Delaware Anti-Takeover Statute
Section 203 of the
DGCL provides that if a person acquires 15% or more of the voting stock of a Delaware corporation, such person becomes an “interested
stockholder” and may not engage in certain “business combinations” with such corporation for a period of three years
from the time such person acquired 15% or more of such corporation’s voting stock, unless: (i) the board of directors of such
corporation approves the acquisition of stock or the merger transaction before the time that the person becomes an interested stockholder,
(ii) the interested stockholder owns at least 85% of the outstanding voting stock of such corporation at the time the merger transaction
commences (excluding voting stock owned by directors who are also officers and certain employee stock plans), or (iii) the business
combination is approved by the board of directors and at a meeting of stockholders, not by written consent, by the affirmative vote of
two-thirds of the outstanding voting stock which is not owned by the interested stockholder.
While Section 203 is
the default provision under the DGCL, the DGCL allows companies to opt out of Section 203 of the DGCL by including a provision in
their certificate of incorporation expressly electing not to be governed by Section 203 of the DGCL. Wheels Up has not opted out
of Section 203. Under certain circumstances, this provision will make it more difficult for a person who would be an “interested
stockholder” to effect various business combinations with us for a three-year period. This provision may encourage companies interested
in acquiring Wheels Up to negotiate in advance with the Board because the stockholder approval requirement would be avoided if the Board
approves either the business combination or the transaction which results in the stockholder becoming an interested stockholder. These
provisions also may have the effect of preventing changes in the Board and may make it more difficult to accomplish transactions which
stockholders may otherwise deem to be in their best interests.
Quorum for Meetings of the Board of Directors
The By-Laws provide that
at any meeting of the Board, a majority of the total number of directors then in office constitutes a quorum for all purposes.
Limitations on Liability and Indemnification
of Officers and Directors
The DGCL authorizes corporations
to limit or eliminate the personal liability of directors to corporations and their stockholders for monetary damages for breaches of
directors’ and officers’ fiduciary duties, subject to certain exceptions. The Certificate of Incorporation includes a provision
that eliminates the personal liability of directors for monetary damages for any breach of fiduciary duty as a director, except to the
extent such exemption from liability or limitation thereof is not permitted under the DGCL. The effect of these provisions is to eliminate
the rights of Wheels Up and its stockholders, through stockholders’ derivative suits on our behalf, to recover monetary damages
from a director for breach of fiduciary duty as a director, including (under current law) breaches resulting from grossly negligent
behavior. Under current law, exculpation would not apply to any director or officer if the director or officer has acted in bad faith,
knowingly or intentionally violated the law or derived an improper benefit from his or her actions as a director or officer, or to any
director who authorized illegal dividends or redemptions. The Certificate of Incorporation does not currently eliminate such personal
liability for officers.
The By-Laws provide that
Wheels Up must indemnify and advance expenses to its directors and officers to the fullest extent authorized by the DGCL. Wheels Up is
also expressly authorized to carry directors’ and officers’ liability insurance providing indemnification for its directors,
officers and certain employees for some liabilities. Wheels Up believes that these indemnification and advancement provisions and insurance
are useful to attract and retain qualified directors and officers.
The limitation of liability,
advancement and indemnification provisions in the Organizational Documents may discourage stockholders from bringing a lawsuit against
directors for breach of their fiduciary duty.
These provisions also may
have the effect of reducing the likelihood of derivative litigation against directors and officers, even though such an action, if successful,
might otherwise benefit Wheels Up and its stockholders. In addition, your investment may be adversely affected to the extent Wheels Up
pays the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions.
There is currently no pending
material litigation or proceeding involving Wheels Up’s directors, officers or employees for which indemnification is sought.
Exclusive Jurisdiction of Certain Actions
The Certificate of Incorporation
requires, to the fullest extent permitted by law, that derivative actions brought in Wheels Up’s name, actions against directors,
officers and employees for breach of fiduciary duty or any provision of the DGCL, the Certificate of Incorporation, the By-Laws and other
similar actions may be brought only in the Court of Chancery in the State of Delaware and, if brought outside of the State of Delaware,
the stockholder bringing the suit will be deemed to have consented to (i) the personal jurisdiction of the state and federal courts
in the State of Delaware in connection with any action brought in any such court to enforce the exclusive jurisdiction provisions of
the Certificate of Incorporation and (ii) the service of process on such stockholder’s counsel. Notwithstanding the foregoing,
the Certificate of Incorporation provides that the exclusive forum provision will not apply to suits brought to enforce a duty or liability
created by the Securities Act or the Exchange Act. Instead, the Certificate of Incorporation provides that federal district
courts will be the sole and exclusive forum for claims under the Securities Act. In addition, Section 27 of the Exchange Act
creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the
rules and regulations thereunder. Although Wheels Up believes this provision benefits Wheels Up by providing increased consistency
in the application of Delaware law in the types of lawsuits to which it applies, the provision may have the effect of discouraging lawsuits
against Wheels Up’s directors and officers.
Registration Rights
The 2023 Registration Statement,
2021 Registration Statement, each of the subscription agreements to which certain investments were made in a private placement prior
to or on July 13, 2021 (collectively, the “Subscription Agreements”), and Warrant Agreement, dated as of September 25,
2020 (the “Warrant Agreement”), between Aspirational Consumer Lifestyle Corp., the Company’s predecessor (“Aspirational”)
and Continental Stock Transfer & Trust Company, as warrant agent (in such capacity, the “Warrant Agent”), provide
that Wheels Up is required to register for resale, pursuant to Rule 415 under the Securities Act, certain shares of Common
Stock and, in the case of the 2021 Registration Rights Agreement, certain other equity securities, of Wheels Up that are held by the
parties thereto from time to time, subject to the restrictions on transfer therein.
The Investor Rights
Agreement provides that the Investors will have registration rights pursuant to the 2023 Registration Rights Agreement. Pursuant to
the 2023 Registration Rights Agreement, Wheels Up is required to file with the SEC a shelf registration statement covering the
resale of the shares of Common Stock issued pursuant to the Investor Rights Agreement and to use its commercially reasonable efforts
to have such registration statement on Form S-1 or Form S-3 (if eligible) declared effective as soon as practicable
after the filing thereof. On September 22, 2024, the date by which Wheels Up is required to file such shelf registration
statement was extended by the requisite holders of Registrable Securities (as defined in the 2023 Registration Rights Agreement) to
September 20, 2025. From and after the initial effectiveness of a shelf registration statement filed in accordance with
the terms of the 2023 Registration Rights Agreement, Wheels Up must maintain a shelf registration statement and take such actions as
are necessary to keep such shelf registration statement covering the shares of Common Stock issued pursuant to the Investor Rights
Agreement continuously effective and available for use to permit the holders named therein to sell such securities until such time
as there are no longer any Registrable Securities (as defined in the 2023 Registration Rights Agreement). The 2023 Registration
Rights Agreement also contains certain customary demand and piggyback registration rights in favor of the parties thereto, including
the right to include all or a portion of the Investor Shares (as defined in the 2023 Registration Rights Agreement) in any
subsequent underwritten offering pursued by Wheels Up.
The subscription agreements
to which certain investments were made in a private placement prior to or on July 13, 2021 provide that, solely with respect
to subscriptions by third-party investors whom are not party to the 2021 Registration Rights Agreement, Wheels Up is required to
file with the SEC, a shelf registration statement covering the resale of the shares of Common Stock issued to any such third-party investor
and to use its commercially reasonable efforts to have such registration statement on Form S-1 or Form S-3 (if eligible) declared
effective as soon as practicable after the filing thereof.
We also agreed pursuant
to the Warrant Agreement to file and maintain the effectiveness of a registration statement covering the shares of Common Stock issuable
upon exercise of the warrants described therein.
Transfer Agent
The
transfer agent for shares of Common Stock is Continental Stock Transfer & Trust Company, whose address is One State Street,
30th Floor, New York, NY 10004.
DESCRIPTION
OF PREFERRED STOCK
The
total amount of our authorized capital stock consists of 1,500,000,000 shares of Common Stock and 25,000,000 shares of preferred stock,
$0.0001 par value per share. Our Board has authority to issue shares of preferred stock in one or more series, to fix for each
such series such voting rights, designations, powers, preferences and relative participating, optional, special and other rights, qualifications,
limitations or restrictions thereof, including dividend rights, conversion rights, redemption privileges and liquidation preferences
for the issue of such series all to the fullest extent permitted by the DGCL.
Our Board may authorize
the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the
holders of Common Stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other
corporate purposes, could, among other things, have the effect of delaying, deferring, or preventing a change in control of the Company
and may adversely affect the market price of our Common Stock and the voting and other rights of the holders thereof. The preferred stock,
when issued in exchange for full consideration, will be fully paid and non-assessable. To the extent provided for in the Certificate
of Incorporation, a Certificate of Amendment to the Certificate of Incorporation or a Certificate of Designations to the Certificate
of Incorporation setting forth any resolutions which may be adopted by our Board relating to any series of the preferred stock, we will
pay dividends and make distributions, if any, in the event of our liquidation, dissolution or winding up first to holders of our preferred
stock and then to holders of our Common Stock.
There are no current plans
to issue any shares of preferred stock. All of the terms of the preferred stock are, or will be, contained in the Certificate of Incorporation,
a Certificate of Amendment to the Certificate of Incorporation or a Certificate of Designations to the Certificate of Incorporation setting
forth any resolutions which may be adopted by our Board relating to any series of the preferred stock, which will be filed with the SEC
at or before the time we issue a series of the preferred stock.
DESCRIPTION
OF DEBT SECURITIES
We have summarized below
general terms and conditions of the debt securities that we may offer and sell pursuant to this prospectus. The following summary of
the debt securities is not complete. When we offer to sell a particular series of debt securities, we will describe the specific terms
and conditions of the series in the applicable prospectus supplement or free writing prospectus. We will also indicate in the applicable
prospectus supplement or free writing prospectus the extent to which the general terms and conditions described in this prospectus apply
to the series of debt securities. The terms and conditions of the debt securities of a series may be different in one or more respects
from the terms and conditions described below.
We will issue the debt securities
in one or more series under an indenture between us and a trustee to be elected by us at or about the time we offer our debt securities,
as supplemented from time to time (the “indenture”). The following summary of the provisions of the indenture does not purport
to be complete and is subject to, and qualified in its entirety by reference to, all of the provisions of the form of indenture, including,
but not limited to, definitions therein of certain terms. The particular terms and conditions of the debt securities of each series offered
by any prospectus supplement or free writing prospectus will be described in the applicable prospectus supplement. For a comprehensive
description of any series of debt securities being offered to you pursuant to this prospectus, you should read both this prospectus and
the applicable prospectus supplement or free writing prospectus.
The form of indenture for
such debt securities is incorporated by reference into the registration statement of which this prospectus is a part and is filed as
an exhibit to the registration statement. The summary that follows is not complete and is subject to, and qualified in its entirety by
reference to, the provisions of the applicable indenture for any debt securities. A form of each supplemental indenture, reflecting the
specific terms and provisions of each series of debt securities, will be filed with the SEC in connection with each offering of debt
securities and will be incorporated by reference in the registration statement of which this prospectus is a part. The indenture for
our debt securities may be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and you
should refer to the Trust Indenture Act for the provisions that apply to the debt securities.
General
We may offer the debt securities
from time to time in as many distinct series as we may determine. The indenture does not limit the amount of debt securities that we
may issue thereunder. We may, without the consent of the holders of the debt securities of any series and subject to restrictions imposed
by our other obligations, issue additional debt securities ranking equally in right of payment with, and otherwise similar in all respects
to, the debt securities of the series (except for the public offering price and the issue date) so that those additional debt securities
will be consolidated and form a single series with the debt securities of the series previously offered and sold.
The debt securities of each
series will be issued in fully registered form without interest coupons. We currently anticipate that the debt securities of any series
offered and sold pursuant to this prospectus and an applicable prospectus supplement or free writing prospectus will be issued as global
debt securities as described under “—Book-Entry; Delivery and Form; Global Securities” and will trade in book-entry
form only. We may issue the debt securities issued under the indenture as “discount securities,” which means they may be
sold at a discount below their stated principal amount. These debt securities, as well as other debt securities that are not issued at
a discount, may, for U.S. federal income tax purposes, be treated as if they were issued with “original issue discount,”
because of interest payment and other characteristics. Special U.S. federal income tax considerations applicable to debt securities issued
with original issue discount will be described in more detail in any applicable prospectus supplement or free writing prospectus.
Unless otherwise specified
in the applicable prospectus supplement or free writing prospectus, the debt securities of each series will not be listed on any securities
exchange.
Provisions of the Indenture
The indenture provides that
debt securities may be issued from time to time in one or more series. For each series of debt securities, the applicable prospectus
supplement or free writing prospectus will describe the following terms and conditions of that series of debt securities:
| · | the
title of the series of debt securities; |
| · | any
limit upon the aggregate principal amount of the series of debt securities or the series
of which they are a part; |
| · | the
date(s) on which the principal of the series of debt securities will be payable or the
method of determination thereof; |
| · | the
rate(s) at which the series of debt securities will bear interest, if any, the date(s) from
which that interest will accrue, the date(s) on which that interest will be payable
and the terms and conditions of any deferral of interest, additional interest, if any, on
the series of debt securities, the right, if any, to extend the interest payment periods
and the duration of the extensions, and the record date(s) to determine to which holders
interest is payable and/or the method by which such rate or rates or date or dates shall
be determined; |
| · | the
offices or agencies where the principal of and any interest on the series of debt securities
will be payable; |
| · | the
right, if any, to redeem the series of debt securities, in whole or in part, at our option
and the period(s) within which, or the date(s) on which, the price(s) at which
and any terms and conditions upon which the series of debt securities may be so redeemed,
pursuant to any sinking fund or otherwise; |
| · | the
obligation, if any, for us to redeem, purchase or repay the series of debt securities pursuant
to any mandatory redemption, sinking fund or analogous provisions or at the option of a holder
thereof and the price(s) at which and the period(s) within which or the date(s) on
which, and any terms and conditions upon which the series of debt securities will be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation; |
| · | if
other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof,
the denominations in which the series of debt securities will be issuable; |
| · | the
percentage of the principal amount at which the series of debt securities will be issued,
and, if other than the principal amount thereof, the portion of the principal amount of the
series of debt securities that will be payable upon declaration of acceleration of the maturity
thereof or provable in bankruptcy; |
| · | if
other than U.S. dollars, the foreign currency or foreign currencies in which the series of
debt securities will be denominated; |
| · | if
other than the coin, currency or currencies in which the series of debt securities will be
denominated, the coin, currency or currencies in which payment of the principal of or interest
on the series of debt securities will be payable, including composite currencies or currency
units; |
| · | if
the principal of or interest on the series of debt securities will be payable, at our election
or the election of a holder thereof, in a coin or currency other than that in which the series
of debt securities will be denominated, the period(s) within which, and the terms and
conditions upon which, such election may be made; |
| · | if
the amount of payments of principal of and interest on the series of debt securities may
be determined with reference to an index or formula based on a coin, currency, composite
currency or currency unit other than that in which the series of debt securities will be
denominated, the manner in which such amounts will be determined; |
| · | whether
and under what circumstances we will pay additional amounts on the series of debt securities
held by a person who is not a U.S. person in respect of any tax, assessment or governmental
charge withheld or deducted and, if so, whether we will have the option to redeem the series
of debt securities rather than pay such additional amounts; |
| · | any
trustees, authenticating or paying agents, warrant agents, transfer agents or registrars
with respect to the series of debt securities; |
| · | any
deletion from, modification of or addition to the events of default or covenants with respect
to the series of debt securities; |
| · | if
the series of debt securities will be convertible into or exchangeable for any other security
or property of ours, including, without limitation, securities of another person held by
us or our affiliates and, if so, the terms thereof; |
| · | any
collateral security, assurance, guarantee or other credit enhancement applicable to the debt
securities; |
| · | the
applicability, if any, of certain covenant defeasance provisions to such series under certain
specified circumstances set forth in the indenture; |
| · | whether
the series of debt securities will be issued in whole or in part in the form of one or more
global securities and, in such case, the depositary for such global security, which depositary
will be a clearing agency registered under the Exchange Act; |
| · | any
limitations on transfer or exchange of debt securities or the right to obtain registration
of their transfer, and the terms and amount of any service charge required for registration
of transfer or exchange; and |
| · | any
other terms of the debt securities of the series. |
Unless the applicable prospectus
supplement or free writing prospectus states otherwise, the covenants contained in the applicable indenture will not afford holders of
debt securities protection in the event we have a change in control or are involved in a highly-leveraged transaction.
Interest and Interest Rates
In the applicable prospectus
supplement or free writing prospectus, we will designate the debt securities of a series as being either debt securities bearing interest
at a fixed rate of interest or debt securities bearing interest at a floating rate of interest. Each debt security will begin to accrue
interest from the date on which it is originally issued. Interest on each such debt security will be payable in arrears on the interest
payment dates set forth in the applicable prospectus supplement or free writing prospectus and as otherwise described below and at maturity
or, if earlier, the redemption date described below. Interest will be payable to the holder of record of the debt securities at the close
of business on the record date for each interest payment date, which record dates will be specified in such prospectus supplement or
free writing prospectus.
If any date of payment of
interest on or principal of a debt security, or any date fixed for redemption or repayment of such debt security, falls on a date that
is not a business day, then payment of interest or principal and premium, if any, may be made on the next succeeding business day with
the same force and effect as if made on the date of payment or the date fixed for redemption, and no interest shall accrue for the period
after such date. As used in the indenture, the term “business day” means, with respect to debt securities of a series, unless
otherwise specified in the applicable prospectus supplement or free writing prospectus, any day, other than a Saturday or Sunday, that
is not a day on which banking institutions are authorized or obligated by law or executive order to close in the place where the principal
of and premium, if any, and interest on the debt securities are payable.
Payment and Transfer or Exchange
Principal of and premium,
if any, and interest on the debt securities of each series will be payable, and the debt securities may be exchanged or transferred,
at the office or agency maintained by us in the continental United States for such purpose. Payment of principal of and premium, if any,
and interest on a global security registered in the name of or held by The Depository Trust Company (“DTC”), or its nominee
will be made in immediately available funds to DTC or its nominee, as the case may be, as the registered holder of such global security.
If any of the debt securities is no longer represented by a global security, payment of interest on certificated debt securities in definitive
form may, at our option, be made by check mailed directly to holders at their registered addresses. See “—Book-Entry;
Delivery and Form; Global Securities.”
A holder may transfer or
exchange any certificated debt securities in definitive form at the same location given in the preceding paragraph. No service charge
will be made for any exchange or registration of transfer of debt securities, but we may require payment of a sum sufficient to cover
any transfer tax or other similar governmental charge payable in connection therewith.
We are not required to exchange
or register a transfer of any debt security selected for redemption for a period of 15 days before mailing a notice of redemption of
the debt security to be redeemed.
The registered holder of
a debt security will be treated as the owner for all purposes.
All amounts of principal
of and premium, if any, or interest on the debt securities paid by us that remain unclaimed two years after such payment was due and
payable will be repaid to us, and the holders of such debt securities will thereafter look solely to us for payment.
Ranking
We
expect that our debt securities will be effectively subordinated to all secured indebtedness that we have outstanding from time to time
to the extent of the value of the collateral securing such secured indebtedness. We may issue one or more series of subordinated debt
securities that may be subordinate to all outstanding secured indebtedness as well as debt securities that are not designated subordinated
debt securities. The indenture does not limit the amount of secured indebtedness that we may issue or incur.
We
conduct substantially all of our operations, and make substantially all of our investments, through WUP Holdings, our operating
partnership, and its subsidiaries. Our ability to meet our financial obligations with respect to any future outstanding debt securities,
and cash needs generally, is dependent on our operating cash flow, our ability to access various sources of short- and long-term liquidity,
including our credit facilities, the capital markets and distributions from our subsidiaries. Holders of our debt securities will effectively
have a junior position to claims of creditors of our subsidiaries, including certain trade creditors, debt holders, secured creditors,
taxing authorities and guarantee holders, if any.
Covenants
The indenture sets forth
limited covenants that will apply to each series of debt securities issued under the indenture, unless otherwise specified in the applicable
prospectus supplement or free writing prospectus. However, unless otherwise specified in the applicable prospectus supplement or free
writing prospectus, these covenants are not expected to, among other things:
| · | limit
the amount of indebtedness or lease obligations that may be incurred by us and our subsidiaries; |
| · | limit
our ability or that of our subsidiaries to issue, assume or guarantee debt secured by liens;
or |
| · | restrict
us from paying dividends or making distributions on our capital stock or purchasing or redeeming
our capital stock. |
Consolidation, Merger and Sale of Assets
The indenture provides that
we may consolidate with or merge with or into any other person, and may sell, transfer, or lease or convey all or substantially all of
our properties and assets to another person; provided, that the following conditions are satisfied:
| · | we
are the continuing entity, or the successor corporation is organized and existing under the
laws of the United States of America, any state thereof or the District of Columbia and the
successor corporation (if not us) will expressly assume, by supplemental indenture, all of
our obligations under the debt securities and the indenture; |
| · | immediately
after giving effect to such transaction, no default or event of default under the indenture
has occurred and is continuing; and |
| · | the
trustee receives from us an officers’ certificate and an opinion of counsel that the
transaction and any such supplemental indenture comply with the applicable provisions of
the indenture. |
If we consolidate or merge
with or into any other person or sell, transfer, lease or convey all or substantially all of our properties and assets in accordance
with the indenture, the successor corporation will be substituted for us in the indenture, with the same effect as if it had been an
original party to the indenture. As a result, the successor corporation may exercise our rights and powers under the indenture, and we
will be released from all our liabilities and obligations under the indenture and under the debt securities; provided, however, that
we will not be relieved from the obligation to pay the principal of, premium (if any) and interest on the debt securities except in the
case of a sale of all of our assets.
Any substitution of the
successor corporation for us might be deemed for U.S. federal income tax purposes to be an exchange of the debt securities for “new”
debt securities, resulting in recognition of gain or loss for such purposes and possibly certain other adverse tax consequences to beneficial
owners of the debt securities. Holders should consult their own tax advisors regarding the tax consequences of any such substitution.
As used in the indenture,
“person” means any individual, corporation, business trust, partnership, limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
Events of Default
Unless the applicable prospectus
supplement or free writing prospectus states otherwise, each of the following events are defined in the indenture as an “event
of default” with respect to the debt securities of any series:
| · | default
in the payment of any installment of interest on any debt securities of such series for 30
days after becoming due and payable, provided a valid extension of an interest payment period
by us in accordance with the terms of such debt securities will not consistent a failure
to pay; |
| · | default
in the payment of principal of or premium, if any, on any debt securities of such series
when it becomes due and payable at its stated maturity, upon redemption, by declaration or
otherwise; |
| · | failure
by us to observe or perform in any material respect any covenant or agreement in the indenture
with respect to the debt securities of such series (other than a covenant or agreement included
in the indenture solely for the benefit of a series of debt securities other than such series),
which continues for a period of 90 days after written notice to us by the trustee or to us
and the trustee by the holders of at least 33% in aggregate principal amount of the outstanding
debt securities of that series; |
| · | we
file for bankruptcy, or certain other events in bankruptcy, insolvency or reorganization
occur; and |
| · | any
other event of default established for the debt securities of such series set forth in the
applicable prospectus supplement or free writing prospectus and supplemental indenture. |
If an event of default with
respect to debt securities of any series (other than an event of default relating to certain events of bankruptcy, insolvency, or reorganization
of us) occurs and is continuing, the trustee by notice to us, or the holders of at least 33% in aggregate principal amount of the outstanding
debt securities of such series by notice to us and the trustee, may, and the trustee at the request of these holders will, declare the
principal of and premium, if any, and accrued and unpaid interest on all the debt securities of such series to be due and payable. Upon
such a declaration, such principal, premium and accrued and unpaid interest will be due and payable immediately. If an event of default
relating to certain events of bankruptcy, insolvency, or reorganization of us occurs and is continuing, the principal of and premium,
if any, and accrued and unpaid interest on the debt securities of such series will become and be immediately due and payable without
any declaration or other act on the part of the trustee or any holders.
The holders of not less
than a majority in aggregate principal amount of the outstanding debt securities of any series may rescind a declaration of acceleration
and its consequences, if we have deposited certain sums with the trustee and all events of default with respect to the debt securities
of such series, other than the non-payment of the principal or interest which have become due solely by such acceleration, have been
cured or waived, as provided in the indenture.
An event of default for
a particular series of debt securities does not necessarily constitute an event of default for any other series of debt securities issued
under the indenture.
As used in the indenture,
we are required to furnish the trustee annually within 120 days after the end of our fiscal year a statement regarding compliance with
the indenture.
No holder of any debt securities
of any series will have any right to institute any judicial or other proceeding with respect to the indenture, or for the appointment
of a receiver or trustee, or for any other remedy unless:
| · | an
event of default has occurred and is continuing and such holder has given the trustee prior
written notice of such continuing event of default with respect to the debt securities of
such series; |
| · | the
holders of not less than 33% of the aggregate principal amount of the outstanding debt securities
of such series have requested the trustee to institute proceedings in respect of such event
of default; |
| · | such
holders have offered the trustee indemnity or security reasonably satisfactory to it against
its costs, expenses and liabilities in complying with such request; |
| · | the
trustee has failed to institute proceedings 60 days after the receipt of such notice, request
and offer of indemnity; and |
| · | no
direction inconsistent with such written request has been given for 60 days by the holders
of a majority in aggregate principal amount of the outstanding debt securities of such series. |
The holders of a majority
in aggregate principal amount of outstanding debt securities of a series will have the right, subject to certain limitations, to direct
the time, method and place of conducting any proceeding for any remedy available to the trustee with respect to the debt securities of
that series or exercising any trust or power conferred to the trustee, and to waive certain defaults. The indenture provides that if
an event of default occurs and is continuing, the trustee will exercise such of its rights and powers under the indenture, and use the
same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of
such person’s own affairs. Subject to such provisions, the trustee will be under no obligation to exercise any of its rights or
powers under the indenture at the request of any of the holders of the debt securities of a series unless they will have offered to the
trustee security or indemnity satisfactory to the trustee against the costs, expenses and liabilities which might be incurred by it in
compliance with such request.
Notwithstanding the foregoing,
the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of and premium, if
any, and interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement
of payment.
Modification and Waivers
Modification and amendments
of the indenture and the debt securities of any series may be made by us and the trustee with the consent of the holders of not less
than a majority in aggregate principal amount of the outstanding debt securities of that series affected thereby; provided, however,
that no such modification or amendment may, without the consent of the holder of each outstanding debt security of that series affected
thereby:
| · | extend
the final maturity of any debt security; |
| · | reduce
the principal amount of, or premium, if any, on any debt security; |
| · | reduce
the rate or extend the time of payment of interest on any debt security; |
| · | reduce
any amount payable on redemption of any debt security; |
| · | change
the coin or currency in which the principal, premium, if any, or interest is payable on any
debt security (other than as may be provided otherwise with respect to a series); |
| · | reduce
the amount of the principal of any debt security issued with an original issue discount that
is payable upon acceleration or provable in bankruptcy; |
| · | impair
or affect the right to institute suit for the enforcement of any payment on any debt security
when due; or |
| · | reduce
the principal amount of such debt securities of any series whose holders must consent to
any modification of the indenture. |
We and the trustee may,
without the consent of any holders, modify or amend the terms of the indenture and the debt securities of any series with respect to
the following:
| · | evidence
the assumption by a successor corporation of our obligations, as permitted by the indenture; |
| · | add
covenants for the protection of the holders of debt securities of all or any series or to
surrender any right or power conferred upon us; |
| · | add
any additional events of default for the benefit of holders of the debt securities of all
or any series; |
| · | add
one or more guarantees for the benefit of holders of the debt securities of any series; |
| · | cure
or correct any ambiguity, defect, omission or inconsistency in the indenture; |
| · | provide
for the issuance of additional debt securities of any series; |
| · | comply
with the rules of any applicable securities depository; |
| · | provide
for uncertificated debt securities in addition to or in place of certificated debt securities; |
| · | add
to, change or eliminate any of the provisions of the indenture in respect of one or more
series of debt securities; provided that any such addition, change or elimination (a) shall
neither (1) apply to any debt security of any series created prior to the execution
of such supplemental indenture and entitled to the benefit of such provision nor (2) modify
the rights of the holder of any such debt security with respect to such provision or (b) shall
become effective only when there is no debt security described in clause (a)(1) outstanding; |
| · | supplement
any of the provisions of the indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of debt securities pursuant to the
indenture; provided that any such action shall not adversely affect the interests of the
holders of debt securities of such series or any other series of debt securities in any material
respect; |
| · | comply
with the rules or regulations of any securities exchange or automated quotation system
on which any of the debt securities may be listed or traded; |
| · | add
to, change or eliminate any of the provisions of the indenture as shall be necessary or desirable
in accordance with any amendments to the Trust Indenture Act; |
| · | establish
the forms or terms of debt securities of any series; |
| · | evidence
and provide for the acceptance of appointment by a successor trustee; and |
| · | add
to, change or eliminate any other provision of the indenture; provided, that such addition,
change or elimination does not adversely affect the interests of the holders of debt securities
of any series in any material respect. |
The holders of a majority
in aggregate principal amount of the outstanding debt securities of any series may, on behalf of the holders of all debt securities of
that series, waive compliance by us with certain restrictive provisions of the indenture. The holders of not less than a majority in
aggregate principal amount of the outstanding debt securities of any series may, on behalf of the holders of all debt securities of that
series, waive any past default and its consequences under the indenture with respect to the debt securities of that series, except a
default in the payment of principal or premium, if any, or interest on debt securities of that series. Upon any such waiver, such default
will cease to exist, and any event of default arising therefrom will be deemed to have been cured, for every purpose of the indenture;
however, no such waiver will extend to any subsequent or other default or event of default or impair any rights consequent thereon.
Discharge, Defeasance and Covenant Defeasance
We may discharge our obligations
to holders of the debt securities of a series that have not already been delivered to the trustee for cancellation and that either have
become due and payable or will become due and payable within one year (or scheduled for redemption within one year). We may effect a
discharge by irrevocably depositing with the trustee cash or U.S. government obligations, as trust funds, in an amount certified to be
sufficient to pay when due, whether at maturity, upon redemption or otherwise, the principal of, and premium, if any, and interest on,
the debt securities and any mandatory sinking fund payments.
The indenture provides that
we may elect either (1) to defease and be discharged from any and all obligations with respect to the debt securities of a series
(except for, among other things, obligations to register the transfer or exchange of the debt securities, to replace temporary or mutilated,
destroyed, lost or stolen debt securities, to maintain an office or agency with respect to the debt securities and to hold moneys for
payment in trust) (“legal defeasance”) or (2) to be released from our obligations to comply with the restrictive covenants
under the indenture, and any omission to comply with such obligations will not constitute a default or an event of default with respect
to the debt securities of a series and clauses (3) and (5) under “—Events of Default” will no longer
be applied (“covenant defeasance”). Legal defeasance or covenant defeasance, as the case may be, will be conditioned upon,
among other things, the irrevocable deposit by us with the trustee, in trust, of an amount in U.S. dollars, or U.S. government obligations,
or both, applicable to the debt securities of that series which through the scheduled payment of principal and interest in accordance
with their terms will provide money in an amount sufficient to pay the principal or premium, if any, and interest on the debt securities
on the scheduled due dates therefor.
If we effect covenant defeasance
with respect to the debt securities of any series, the amount in U.S. dollars, or U.S. government obligations, or both, on deposit with
the trustee will be sufficient, in the opinion of a nationally recognized firm of independent accountants, to pay amounts due on the
debt securities of that series at the time of the stated maturity but may not be sufficient to pay amounts due on the debt securities
of that series at the time of acceleration. However, we would remain liable to make payment of such amounts due at the time of acceleration.
We will be required to deliver
to the trustee an opinion of counsel that the deposit and related defeasance will not cause the holders and beneficial owners of the
debt securities of that series to recognize income, gain or loss for federal income tax purposes. If we elect legal defeasance, that
opinion of counsel must be based upon a ruling from the U.S. Internal Revenue Service or a change in law to that effect.
We may exercise our legal
defeasance option notwithstanding our prior exercise of our covenant defeasance option.
Same-Day Settlement and Payment
Unless otherwise provided
in the applicable prospectus supplement or free writing prospectus, the debt securities will trade in the same-day funds settlement system
of DTC until maturity or until we issue the debt securities in certificated form. DTC will therefore require secondary market trading
activity in the debt securities to settle in immediately available funds. We can give no assurance as to the effect, if any, of settlement
in immediately available funds on trading activity in the debt securities.
Book-Entry; Delivery and Form; Global Securities
Unless otherwise specified
in the applicable prospectus supplement or free writing prospectus, the debt securities of each series will be issued in the form of
one or more global debt securities, in definitive, fully registered form without interest coupons, each of which we refer to as a “global
security.” Each such global security will be deposited with the trustee as custodian for DTC and registered in the name of a nominee
of DTC in New York, New York for the accounts of participants in DTC.
Investors may hold their
interests in a global security directly through DTC if they are DTC participants, or indirectly through organizations that are DTC participants.
Except in the limited circumstances described below, holders of debt securities represented by interests in a global security will not
be entitled to receive their debt securities in fully registered certificated form.
The rules that apply
to DTC and its participants are on file with the SEC. DTC is a wholly-owned subsidiary of The Depository Trust and Clearing Corporation,
which is owned by the users of its regulated subsidiaries.
Ownership of Beneficial Interests
Upon the issuance of each
global security, DTC will credit, on its book-entry registration and transfer system, the respective principal amount of the individual
beneficial interests represented by the global security to the accounts of participants. Ownership of beneficial interests in each global
security will be limited to participants or persons that may hold interests through participants. Ownership of beneficial interests in
each global security will be shown on, and the transfer of those ownership interests will be effected only through, records maintained
by DTC (with respect to participants’ interests) and such participants (with respect to the owners of beneficial interests in the
global security other than participants).
So long as DTC or its nominee
is the registered holder and owner of a global security, DTC or such nominee, as the case may be, will be considered the sole legal owner
of the debt security represented by the global security for all purposes under the indenture, the debt securities and applicable law.
Except as set forth below, owners of beneficial interests in a global security will not be entitled to receive certificated debt securities
and will not be considered the owners or holders of any debt securities represented by the global security. No beneficial owner of an
interest in a global security will be able to transfer such interest except in accordance with DTC’s applicable procedures, in
addition to those provided for under the indenture. Because DTC can only act on behalf of participants, who in turn act on behalf of
others, the ability of a person having a beneficial interest in a global security to pledge that interest to persons that do not participate
in the DTC system, or otherwise to take actions in respect of that interest, may be impaired by the lack of a physical certificate representing
that interest.
All payments on the debt
securities represented by a global security registered in the name of and held by DTC or its nominee will be made to DTC or its nominee,
as the case may be, as the registered owner and holder of the global security.
We expect that DTC or its
nominee, upon receipt of any payment of principal, premium, if any, or interest in respect of a global security, will credit participants’
accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the global security
as shown on the records of DTC or its nominee. We also expect that payments by participants to owners of beneficial interests in the
global security held through such participants will be governed by standing instructions and customary practices as is now the case with
securities held for accounts for customers registered in the names of nominees for such customers. These payments, however, will be the
responsibility of such participants and indirect participants, and none of us, the trustee or any paying agent will have any responsibility
or liability for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in any global
security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests or for any other aspect
of the relationship between DTC and its participants or the relationship between such participants and the owners of beneficial interests
in the global security.
Except as noted below, we
expect that DTC will take any action permitted to be taken by a holder of debt securities only at the direction of one or more participants
to whose account the DTC interests in a global security are credited and only in respect of such portion of the aggregate principal amount
of the debt securities as to which such participant or participants has or have given such direction.
Unless and until it is exchanged
in whole or in part for certificated debt securities, no global security may be transferred except as a whole by DTC to a nominee of
DTC or by a nominee of DTC to DTC or another nominee of DTC. Transfers between participants in DTC will be effected in the ordinary way
in accordance with DTC rules and will be settled in same-day funds.
The indenture provides that
the global securities will be exchanged for debt securities in certificated form of like tenor and of an equal principal amount, in authorized
denominations in the following limited circumstances:
| · | DTC
notifies us that it is unwilling or unable to continue as depository or if DTC ceases to
be a clearing agency registered under the Exchange Act and we do not appoint a successor
depository within 90 days after we receive notice or become aware of such event; |
| · | we
execute and deliver to the trustee written instructions that such debt securities will be
so exchangeable; or |
| · | an
event of default with respect to the debt securities will have occurred and be continuing. |
These certificated debt
securities will be registered in such name or names as DTC will instruct the trustee. It is expected that such instructions may be based
upon directions received by DTC from participants with respect to ownership of beneficial interests in global securities.
Euroclear and Clearstream
If the depositary for a
global security is DTC, you may hold interests in the global security through Euroclear Bank SA/NV, as operator of the Euroclear System
(“Euroclear”), or Clearstream Banking, société anonyme (“Clearstream”), in each case, as a participant
in DTC. Euroclear and Clearstream will hold interests, in each case, on behalf of their participants through customers’ securities
accounts in the names of Euroclear and Clearstream on the books of their respective depositaries, which in turn will hold such interests
in customers’ securities in the depositaries’ names on DTC’s books.
Euroclear and Clearstream
are securities clearance systems in Europe. Euroclear and Clearstream hold securities for their respective participating organizations
and facilitate the clearance and settlement of securities transactions between those participants through electronic book-entry changes
in their accounts, thereby eliminating the need for physical movement of certificates. Payments, deliveries, transfers, exchanges, notices
and other matters relating to the debt securities made through Euroclear or Clearstream must comply with the rules and procedures
of those systems. Transactions between participants in Euroclear or Clearstream, on one hand, and other participants in DTC, on the other
hand, would also be subject to DTC’s rules and procedures.
Investors will be able to
make and receive through Euroclear and Clearstream payments, deliveries, transfers, exchanges, notices and other transactions involving
any securities held through those systems only on days when those systems are open for business. Those systems may not be open for business
on days when banks, brokers and other institutions are open for business in the United States.
In addition, because of
time-zone differences, U.S. investors who hold their interests in the debt securities through these systems and wish on a particular
day, to transfer their interests, or to receive or make a payment or delivery or exercise any other right with respect to their interests,
may find that the transaction will not be effected until the next business day in Luxembourg or Brussels, as applicable. Thus, investors
who wish to exercise rights that expire on a particular day may need to act before the expiration date. In addition, investors who hold
their interests through both DTC and Euroclear or Clearstream may need to make special arrangements to finance any purchase or sales
of their interests between the U.S. and European clearing systems, and those transactions may settle later than transactions within one
clearing system.
Other
The information in this
section of this prospectus concerning DTC, Euroclear, Clearstream and their respective book-entry systems has been obtained from sources
that we believe to be reliable, but we do not take responsibility for this information. The rules and procedures of DTC, Clearstream
and Euroclear are solely within the control of those organizations and could change at any time. You are urged to contact DTC, Euroclear,
Clearstream or their respective participants directly to discuss those matters. In addition, although we expect that DTC, Euroclear,
and Clearstream will perform the foregoing procedures, none of them is under any obligation to perform or continue to perform such procedures,
which may be discontinued at any time. None of us, the trustee or any of our agents will have any responsibility for the performance
or nonperformance by DTC, Euroclear, and Clearstream or their respective participants of these or any other rules or procedures
governing their respective operations.
Regarding the Trustee
The indenture contains certain
limitations on the right of the trustee, should it become a creditor of ours, to obtain payment of claims in certain cases, or to realize
for its own account on certain property received in respect of any such claim as security or otherwise. The trustee will be permitted
to engage in certain other transactions; however, if after an event of default has occurred and is continuing, the trustee acquires any
conflicting interest it must eliminate such interest or resign.
No Individual Liability of Incorporators,
Stockholders, Officers or Directors
The indenture provides that
no past, present or future incorporator, stockholder, officer or director of us or any successor corporation in their capacity as such
shall have any individual liability for any obligation, covenant or agreement under the indenture or any debt security for a claim based
thereon or otherwise in respect thereof.
Governing Law
The indenture and the debt
securities will be governed by and construed in accordance with the laws of the State of New York.
DESCRIPTION
OF OUR WARRANTS
The following summary
of the material terms of our securities is not intended to be a complete summary of the rights and preferences of such securities, and
is qualified by reference to our Organizational Documents, the 2021 Registration Rights Agreement, Warrant Agreement and the warrant-related
documents described herein. Securityholders are urged to read the Organizational Documents, 2021 Registration Rights Agreement and Warrant
Agreement in their entirety for a complete description of the rights and preferences of our securities, including our outstanding Warrants.
New Equity Warrants
We
may issue warrants for the purchase of Common Stock or preferred stock and we may issue warrants independently or together with Common
Stock or preferred stock or attached to or separate from such securities. We will issue each series of warrants under a separate warrant
agreement between us and a bank or trust company as warrant agent, as specified in the applicable prospectus supplement. The following
description of the terms of the warrants is only a summary. This description is subject to, and qualified in its entirety by reference
to, the provisions of the applicable warrant agreement.
The
warrant agent will act solely as our agent in connection with the warrants and will not act for or on behalf of warrant holders. The
following sets forth certain general terms and provisions of the warrants that may be offered under this registration statement. Further
terms of the warrants and the applicable warrant agreement will be set forth in the applicable prospectus supplement.
The
applicable prospectus supplement will describe the terms of the warrants to purchase Common Stock or preferred stock, or equity warrants,
in respect of which this prospectus is being delivered, including, where applicable, the following:
| · | the
title of the equity warrants; |
| · | the
aggregate number of the equity warrants being issued; |
| · | the
price or prices at which the equity warrants will be issued; |
| · | the
type and number of securities purchasable upon exercise of the equity warrants; |
| · | the
date, if any, on and after which the equity warrants and the related securities will be separately
transferable; |
| · | the
price at which each security purchasable upon exercise of the equity warrants may be purchased; |
| · | the
provisions, if any, for changes to or adjustments in the exercise price; |
| · | the
date on which the right to exercise the equity warrants shall commence and the date on which
such right shall expire; |
| · | the
minimum or maximum amount of equity warrants that may be exercised at any one time; |
| · | information
with respect to book-entry procedures, if any; |
| · | any
anti-dilution protection; |
| · | a
discussion of certain U.S. federal income tax considerations applicable to the equity warrants;
and |
| · | any
other terms of the equity warrants, including terms, procedures and limitations relating
to the transferability, exercise and exchange of such warrants. |
Equity
warrant certificates will be exchangeable for new equity warrant certificates of different denominations and warrants may be exercised
at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Prior to the
exercise of their equity warrants, holders of equity warrants will not have any of the rights of holders of the securities purchasable
upon such exercise or to any dividend payments or voting rights as to which holders of the depositary shares, Common Stock or preferred
stock purchasable upon such exercise may be entitled.
Except
as provided in the applicable prospectus supplement, the exercise price and the number of shares of Common Stock or shares of preferred
stock purchasable upon the exercise of each equity warrant will be subject to adjustment in certain events, including the issuance of
a stock dividend to the holders of the underlying Common Stock or preferred stock or a stock split, reverse stock split, combination,
subdivision or reclassification of the underlying Common Stock or preferred stock, as the case may be. In lieu of adjusting the number
of shares purchasable upon exercise of each equity warrant, we may elect to adjust the number of equity warrants. Unless otherwise provided
in the applicable prospectus supplement, no adjustments in the number of shares purchasable upon exercise of the equity warrants will
be required until all cumulative adjustments require an adjustment of at least 1% thereof. We may, at our option, reduce the exercise
price at any time. No fractional shares will be issued upon exercise of equity warrants, but we will pay the cash value of any fractional
shares otherwise issuable. Notwithstanding the foregoing, except as otherwise provided in the applicable prospectus supplement, in case
of any consolidation, merger or sale or conveyance of our property as an entirety or substantially as an entirety, the holder of each
outstanding equity warrant will have the right to the kind and amount of shares of stock and other securities and property, including
cash, receivable by a holder of the number of depositary shares, shares of Common Stock or shares of preferred stock into which each
equity warrant was exercisable immediately prior to the particular triggering event.
Each
warrant will entitle the holder to purchase for cash such number of shares of Common Stock or shares of preferred stock, at such exercise
price as shall, in each case, be set forth in, or be determinable as set forth in, the applicable prospectus supplement relating to the
warrants offered thereby. Unless otherwise specified in the applicable prospectus supplement, warrants may be exercised at any time up
to 5:00 p.m. New York City time on the expiration date set forth in applicable prospectus supplement. After 5:00 p.m. New York
City time on the expiration date, unexercised warrants will be void.
Warrants
may be exercised as set forth in the applicable prospectus supplement relating to the warrants. Upon receipt of payment and the warrant
certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in
the applicable prospectus supplement, we will, as soon as practicable, forward the securities purchasable upon such exercise. If less
than all of the warrants that are represented by such warrant certificate are exercised, a new warrant certificate will be issued for
the remaining amount of warrants.
Outstanding Redeemable Warrants
Public Warrants
Each whole warrant entitles
the registered holder to purchase one-tenth of one share of Common Stock at a price of $115.00 per whole share, subject to adjustment
as discussed below, at any time commencing August 12, 2021, except as described below. Pursuant to the Warrant Agreement, a warrant
holder may exercise its warrants only for a whole number of shares of our Common Stock. The warrants will expire on July 13, 2026,
at 5:00 p.m., New York City time, or earlier upon redemption or liquidation.
We will not be obligated
to deliver any shares of our Common Stock pursuant to the exercise of a warrant and have no obligation to settle such warrant exercise
unless a registration statement under the Securities Act, covering the issuance of the our Common Stock shares issuable upon exercise
of the warrants is then effective and a current prospectus relating thereto is available, subject to us satisfying our obligations described
below with respect to registration, or a valid exemption from registration is available, including in connection with a cashless exercise
permitted as a result of a notice of redemption described below under “- Redemption of warrants when the price per whole share
of our Common Stock equals or exceeds $100.00”. No warrant will be exercisable for cash or on a cashless basis, and we will
not be obligated to issue any shares to holders seeking to exercise their warrants, unless the issuance of the shares upon exercise is
registered or qualified under the securities laws of the state of the exercising holder, or an exemption is available. In the event that
the conditions in the two immediately preceding sentences are not satisfied with respect to a warrant, the holder of such warrant will
not be entitled to exercise such warrant and such warrant may have no value and expire worthless. In the event that a registration statement
is not effective for the exercised warrants, the purchaser of a unit (prior to the separation of the warrants from such units) containing
such warrant will have paid the full purchase price for the unit solely for the share of our Common Stock underlying such unit.
We agreed to use commercially
reasonable efforts to file with the SEC a registration statement covering the issuance, under the Securities Act, of the shares
of Common Stock issuable upon exercise of the warrants. Under the Warrant Agreement, we are required to use commercially reasonable efforts
to maintain the effectiveness of such registration statement, and a current prospectus relating thereto, until the expiration of the
warrants in accordance with the provisions of the Warrant Agreement. Notwithstanding the above, if the shares of Common Stock are, at
the time of any exercise of a warrant, not listed on a national securities exchange such that they satisfy the definition of a “covered
security” under Section 18(b)(1) of the Securities Act, we may, at our option, require holders of public warrants
who exercise their warrants to do so on a “cashless basis” in accordance with Section 3(a)(9) of the Securities Act
and, in the event we so elect, we will not be required to file or maintain in effect a registration statement, but will use commercially
reasonable efforts to register or qualify the shares under applicable state blue sky laws to the extent an exemption is not available.
In such event, each holder would pay the exercise price by surrendering the warrants for that number of shares of Common Stock equal
to the lesser of (i) the quotient obtained by dividing (x) the product of the number of shares of Common Stock underlying the
warrants, multiplied by the excess of the “fair market value” (as defined below) less the exercise price of the warrants
by (y) the fair market value and (ii) 0.0361 shares of Common Stock per warrant. The “fair market value” as used
in the preceding sentence shall mean the volume weighted average price of the shares of Common Stock for the 10 trading days ending on
the trading day prior to the date on which the notice of exercise is received by the warrant agent. The date the warrant agent receives
notice of a “cashless exercise” will be determined by the warrant agent.
Redemption
of warrants when the price per whole share of Common Stock equals or exceeds $180.00. Once the warrants become exercisable,
Wheels Up may redeem the outstanding warrants (except as described herein with respect to the private placement warrants):
| · | in whole and not in part; |
| · | at a price of $0.01 per warrant; |
| · | upon not less than 30 days’ prior written notice of
redemption to each warrant holder; and |
| · | if, and only if, the last reported sale price of the shares
of Common Stock for any 20 trading days within a 30-trading day period ending on the third trading day prior to the date on which we
send the notice of redemption to the warrant holders (which is referred to as the “Reference Value”) equals or exceeds $180.00
per whole share (as adjusted for adjustments to the number of shares issuable upon exercise or the exercise price of a warrant described
under the heading “- Anti-dilution Adjustments”). |
We will not redeem the warrants
as described above unless a registration statement under the Securities Act covering the issuance of the shares of Common Stock
issuable upon exercise of the warrants is then effective and a current prospectus relating to those shares of Common Stock is available
throughout the 30-day redemption period.
If and when the warrants
become redeemable by Wheels Up, Wheels Up may exercise its redemption right even if it is unable to register or qualify the underlying
securities for sale under all applicable state securities laws.
Wheels Up has established
the last of the redemption criterion discussed above to prevent a redemption call unless there is at the time of the call a significant
premium to the warrant exercise price. If the foregoing conditions are satisfied and Wheels Up issues a notice of redemption of the warrants,
each warrant holder will be entitled to exercise his, her or its warrant prior to the scheduled redemption date. However, the price of
the shares of Common Stock may fall below the $180.00 redemption trigger price (as adjusted for adjustments to the number of shares issuable
upon exercise or the exercise price of a warrant as described under the heading “- Anti-dilution Adjustments”), as
well as the $115.00 (for whole shares) warrant exercise price, after the redemption notice is issued.
Redemption
of warrants when the price per whole share of Common Stock equals or exceeds $100.00. Once the warrants become exercisable,
we may redeem the outstanding warrants:
| · | in whole and not in part; |
| · | at $0.10 per warrant upon a minimum of 30 days’ prior
written notice of redemption provided that holders will be able to exercise their warrants on a cashless basis prior to redemption and
receive that number of shares determined by reference to the table below, based on the redemption date and the “fair market value”
of shares of Common Stock (as defined below) except as otherwise described below; |
| · | if, and only if, the Reference Value equals or exceeds $100.00
per whole share (as adjusted for adjustments to the number of shares issuable upon exercise or the exercise price of a warrant as described
under the heading “- Anti-dilution Adjustments”); and |
| · | if the Reference Value is less than $180.00 per whole share
(as adjusted for adjustments to the number of shares issuable upon exercise or the exercise price of a warrant as described under the
heading “- Anti-dilution Adjustments”), the private placement warrants must also be concurrently called for redemption
on the same terms as the outstanding public warrants, as described above. |
During the period beginning
on the date the notice of redemption is given, holders may elect to exercise their warrants on a cashless basis. The numbers in the table
below represent the number of shares of Common Stock that a warrant holder will receive upon such cashless exercise in connection with
a redemption by Wheels Up pursuant to this redemption feature, based on the “fair market value” of the shares of Common Stock
on the corresponding redemption date (assuming holders elect to exercise their warrants and such warrants are not redeemed for $0.10
per warrant), determined for these purposes based on volume weighted average price of the shares of Common Stock during the 10 trading
days immediately following the date on which the notice of redemption is sent to the holders of warrants, and the number of months that
the corresponding redemption date precedes the expiration date of the warrants, each as set forth in the table below. Wheels Up will
provide warrant holders with the final fair market value no later than one business day after the 10-trading day period described above
ends.
The share prices set forth
in the column headings of the table below will be adjusted as of any date on which the number of shares issuable upon exercise of a warrant
or the exercise of a warrant or the exercise price of a warrant is adjusted as set forth under the heading “- Anti-dilution
Adjustments” below. If the number of shares issuable upon exercise of a warrant is adjusted, the adjusted share prices in the
column headings will equal the share prices immediately prior to such adjustment, multiplied by a fraction, the numerator of which is
the number of shares deliverable upon exercise of a warrant immediately prior to such adjustment and the denominator of which is the
number of shares deliverable upon exercise of a warrant as so adjusted. The number of shares in the table below shall be adjusted in
the same manner and at the same time as the number of shares issuable upon exercise of a warrant. If the exercise price of a warrant
is adjusted, (i) in the case of an adjustment pursuant to the fifth paragraph under the heading “- Anti-dilution Adjustments”
below, the adjusted share prices in the column headings will equal the unadjusted share price multiplied by a fraction, the numerator
of which is the higher of the Market Value and the Newly Issued Price (each as defined in the Warrant Agreement) as set forth under the
heading “- Anti-dilution Adjustments” and the denominator of which is $100.00 and (ii) in the case of an adjustment
pursuant to the second paragraph under the heading “- Anti-dilution Adjustments” below, the adjusted share prices
in the column headings will equal the unadjusted share price less the decrease in the exercise price of a warrant pursuant to such exercise
price adjustment.
| Redemption Date | |
Fair Market Value of Shares of Common Stock |
| (Period to expiration of warrants) | |
≤100.00 | |
110.00 | |
120.00 | |
130.00 | |
140.00 | |
150.00 | |
160.00 | |
170.00 | |
≥180.00 |
| 60 months | |
0.0261 | |
0.0281 | |
0.0297 | |
0.0311 | |
0.0324 | |
0.0337 | |
0.0348 | |
0.0358 | |
0.0361 |
| 57 months | |
0.0257 | |
0.0277 | |
0.0294 | |
0.0310 | |
0.0324 | |
0.0337 | |
0.0348 | |
0.0358 | |
0.0361 |
| 54 months | |
0.0252 | |
0.0272 | |
0.0291 | |
0.0307 | |
0.0322 | |
0.0335 | |
0.0347 | |
0.0357 | |
0.0361 |
| 51 months | |
0.0246 | |
0.0268 | |
0.0287 | |
0.0304 | |
0.0320 | |
0.0333 | |
0.0346 | |
0.0357 | |
0.0361 |
| 48 months | |
0.0241 | |
0.0263 | |
0.0283 | |
0.0301 | |
0.0317 | |
0.0332 | |
0.0344 | |
0.0356 | |
0.0361 |
| 45 months | |
0.0235 | |
0.0258 | |
0.0279 | |
0.0298 | |
0.0315 | |
0.0330 | |
0.0343 | |
0.0356 | |
0.0361 |
| 42 months | |
0.0228 | |
0.0252 | |
0.0274 | |
0.0294 | |
0.0312 | |
0.0328 | |
0.0342 | |
0.0355 | |
0.0361 |
| 39 months | |
0.0221 | |
0.0246 | |
0.0269 | |
0.0290 | |
0.0309 | |
0.0325 | |
0.0340 | |
0.0354 | |
0.0361 |
| 36 months | |
0.0213 | |
0.0239 | |
0.0263 | |
0.0285 | |
0.0305 | |
0.0323 | |
0.0339 | |
0.0353 | |
0.0361 |
| 33 months | |
0.0205 | |
0.0232 | |
0.0257 | |
0.0280 | |
0.0301 | |
0.0320 | |
0.0337 | |
0.0352 | |
0.0361 |
| 30 months | |
0.0196 | |
0.0224 | |
0.0250 | |
0.0274 | |
0.0297 | |
0.0316 | |
0.0335 | |
0.0351 | |
0.0361 |
| 27 months | |
0.0185 | |
0.0214 | |
0.0242 | |
0.0268 | |
0.0291 | |
0.0313 | |
0.0332 | |
0.0350 | |
0.0361 |
| 24 months | |
0.0173 | |
0.0204 | |
0.0233 | |
0.0260 | |
0.0285 | |
0.0308 | |
0.0329 | |
0.0348 | |
0.0361 |
| 21 months | |
0.0161 | |
0.0193 | |
0.223 | |
0.0252 | |
0.0279 | |
0.0304 | |
0.0326 | |
0.0347 | |
0.0361 |
| 18 months | |
0.0146 | |
0.0179 | |
0.0211 | |
0.0242 | |
0.0271 | |
0.0298 | |
0.0322 | |
0.0345 | |
0.0361 |
| 15 months | |
0.0130 | |
0.0164 | |
0.0197 | |
0.0230 | |
0.0262 | |
0.0291 | |
0.0317 | |
0.0342 | |
0.0361 |
| 12 months | |
0.0111 | |
0.0146 | |
0.0181 | |
0.0216 | |
0.0250 | |
0.0282 | |
0.0312 | |
0.0339 | |
0.0361 |
| 9 months | |
0.0090 | |
0.0125 | |
0.0162 | |
0.0199 | |
0.0237 | |
0.0272 | |
0.0305 | |
0.0336 | |
0.0361 |
| 6 months | |
0.0065 | |
0.0099 | |
0.0137 | |
0.0178 | |
0.0219 | |
0.0259 | |
0.0296 | |
0.0331 | |
0.0361 |
| 3 months | |
0.0034 | |
0.0065 | |
0.0104 | |
0.0150 | |
0.0197 | |
0.0243 | |
0.0286 | |
0.0326 | |
0.0361 |
| 0 months | |
- | |
- | |
0.0042 | |
0.0115 | |
0.0179 | |
0.0233 | |
0.0281 | |
0.0323 | |
0.0361 |
The exact fair market value
and redemption date may not be set forth in the table above, in which case, if the fair market value is between two values in the table
or the redemption date is between two redemption dates in the table, the number of shares of Common Stock to be issued for each warrant
exercised will be determined by a straight-line interpolation between the number of shares set forth for the higher and lower fair market
values and the earlier and later redemption dates, as applicable, based on a 365- or 366-day year, as applicable. For example, if the
volume weighted average price of the shares of Common Stock during the 10 trading days immediately following the date on which the notice
of redemption is sent to the holders of the warrants is $110.00 per whole share, and at such time there are 57 months until the expiration
of the warrants, holders may choose to, in connection with this redemption feature, exercise their warrants for 0.0277 shares of Common
Stock for each whole warrant. For an example where the exact fair market value and redemption date are not as set forth in the table
above, if the volume weighted average price of the shares of Common Stock during the 10 trading days immediately following the date on
which the notice of redemption is sent to the holders of the warrants is $135.00 per whole share, and at such time there are 38 months
until the expiration of the warrants, holders may choose to, in connection with this redemption feature, exercise their warrants for
0.0298 shares of Common Stock for each whole warrant. In no event will the warrants be exercisable in connection with this redemption
feature for more than 0.0361 shares of Common Stock per warrant (subject to adjustment). Finally, as reflected in the table above, if
the warrants are out of the money and about to expire, they cannot be exercised on a cashless basis in connection with a redemption by
Wheels Up pursuant to this redemption feature, since they will not be exercisable for any shares of Common Stock.
This redemption feature
differs from the typical warrant redemption features used in warrants initially issued in connection with many other blank check offerings,
which typically only provide for a redemption of warrants for cash (other than the private placement warrants) when the trading price
for the shares of Common Stock exceeds $180.00 per whole share for a specified period of time. This redemption feature is structured
to allow for all of the outstanding warrants to be redeemed when the shares of Common Stock are trading at or above $100.00 per whole
share, which may be at a time when the trading price of the shares of Common Stock is below the exercise price of the warrants. Wheels
Up has established this redemption feature to provide it with the flexibility to redeem the warrants without the warrants having to reach
the $180.00 per whole share threshold set forth above under “- Redemption of warrants when the price per whole share of Common
Stock equals or exceeds $180.00.” Holders choosing to exercise their warrants in connection with a redemption pursuant to this
feature will, in effect, receive a number of shares for their warrants based on an option pricing model with a fixed volatility input
as of the date of the initial public offering (the “IPO”) of the securities of Aspirational. This redemption right provides
us with an additional mechanism by which to redeem all of the outstanding warrants, and therefore have certainty as to our capital structure
as the warrants would no longer be outstanding and would have been exercised or redeemed. Wheels Up will be required to pay the applicable
redemption price to warrant holders if it chooses to exercise this redemption right and it will allow Wheels Up to quickly proceed with
a redemption of the warrants if it determines it is in Wheels Up’s and its other stockholders’ best interest to do so. As
such, Wheels Up would redeem the warrants in this manner when it believes it is in Wheels Up’s and its other stockholders’
best interest to update its capital structure to remove the warrants and pay the redemption price to the warrant holders.
As stated above, Wheels
Up can redeem the warrants when the shares of Common Stock are trading at a price starting at $100.00 per whole share, which is below
the exercise price of $115.00 per whole share, because it will provide certainty with respect to Wheels Up’s capital structure
and cash position while providing warrant holders with the opportunity to exercise their warrants on a cashless basis for the applicable
number of shares. If Wheels Up chooses to redeem the warrants when the shares of Common Stock are trading at a price below the exercise
price per whole share of the warrants, this could result in the warrant holders receiving fewer shares of Common Stock than they would
have received if they had chosen to wait to exercise their warrants for shares of Common Stock if and when such shares of Common Stock
were trading at a price higher than the exercise price of $115.00 per whole share.
No fractional shares of
Common Stock will be issued upon exercise. If, upon exercise, a holder would be entitled to receive a fractional interest in a share,
Wheels Up will round down to the nearest whole number of the number of shares of Common Stock to be issued to the holder. If, at the
time of redemption, the warrants are exercisable for a security other than the shares of Common Stock pursuant to the Warrant Agreement,
the warrants may be exercised for such security. At such time as the warrants become exercisable for a security other than the shares
of Common Stock, Wheels Up will use its commercially reasonable efforts to register under the Securities Act the security issuable
upon the exercise of the warrants.
Redemption
procedures. A holder of a warrant may notify Wheels Up in writing in the event it elects to be subject to a requirement that
such holder will not have the right to exercise such warrant, to the extent that after giving effect to such exercise, such person (together
with such person’s affiliates), to the warrant agent’s actual knowledge, would beneficially own in excess of 9.8% (or such
other amount as a holder may specify) of the shares of Common Stock issued and outstanding immediately after giving effect to such exercise.
Anti-dilution
Adjustments. If the number of issued and outstanding shares of Common Stock is increased by a capitalization or share dividend
payable in shares of Common Stock, or by a split-up of shares of Common Stock or other similar event, then, on the effective date of
such capitalization or share dividend, split-up or similar event, the number of shares of Common Stock issuable on exercise of each warrant
will be increased in proportion to such increase in the issued and outstanding shares of Common Stock. A rights offering made to all
or substantially all of the holders of shares of Common Stock entitling holders to purchase shares of Common Stock at a price less than
the “historical fair market value” (as defined below) will be deemed a share dividend of a number of shares of Common Stock
equal to the product of (i) the number of shares of Common Stock actually sold in such rights offering (or issuable under any other
equity securities sold in such rights offering that are convertible into or exercisable for shares of Common Stock) and (ii) one
minus the quotient of (x) the price per share of Common Stock paid in such rights offering and (y) the historical fair market
value. For these purposes, (i) if the rights offering is for securities convertible into or exercisable for shares of Common Stock,
in determining the price payable for shares of Common Stock, there will be taken into account any consideration received for such rights,
as well as any additional amount payable upon exercise or conversion and (ii) “historical fair market value” means the
volume weighted average price of shares of Common Stock during the 10 trading day period ending on the trading day prior to the first
date on which the shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right
to receive such rights.
In addition, if Wheels Up,
at any time while the warrants are outstanding and unexpired, pays to all or substantially all of the holders of shares of Common Stock
a dividend or makes a distribution in cash, securities or other assets to the holders of shares of Common Stock on account of such shares
of Common Stock (or other securities into which the warrants are convertible), other than (i) as described above or (ii) any
cash dividends or cash distributions which, when combined on a per share basis with all other cash dividends and cash distributions paid
on the shares of Common Stock during the 365-day period ending on the date of declaration of such dividend or distribution does not exceed
$5.00 (as adjusted for share sub-divisions, share dividends, rights issuances, consolidations, reorganizations, recapitalizations and
other similar transactions) but only with respect to the amount of the aggregate cash dividends or cash distributions equal to or less
than $5.00 per share, then the warrant exercise price will be decreased, effective immediately after the effective date of such event,
by the amount of cash and/or the fair market value of any securities or other assets paid on each share of Common Stock in respect of
such event.
If the number of issued
and outstanding shares of Common Stock is decreased by a consolidation, combination, reverse share sub-division or reclassification of
shares of Common Stock or other similar event, then, on the effective date of such consolidation, combination, reverse share sub-division,
reclassification or similar event, the number of shares of Common Stock issuable on exercise of each warrant will be decreased in proportion
to such decrease in issued and outstanding shares of Common Stock.
Whenever the number of shares
of Common Stock purchasable upon the exercise of the warrants is adjusted, as described above, the warrant exercise price will be adjusted
by multiplying the warrant exercise price immediately prior to such adjustment by a fraction (i) the numerator of which will be
the number of shares of Common Stock purchasable upon the exercise of the warrants immediately prior to such adjustment and (ii) the
denominator of which will be the number of shares of Common Stock so purchasable immediately thereafter.
In case of any reclassification
or reorganization of the issued and outstanding shares of Common Stock (other than those described above or that solely affects the par
value of such shares of Common Stock), or in the case of any merger or consolidation of Wheels Up with or into another corporation (other
than a merger or consolidation in which Wheels Up is the continuing corporation and that does not result in any reclassification or reorganization
of the issued and outstanding shares of Common Stock), or in the case of any sale or conveyance to another corporation or entity of the
assets or other property of Wheels Up as an entirety or substantially as an entirety in connection with which Wheels Up is dissolved,
the holders of the warrants will thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions
specified in the warrants and in lieu of shares of Common Stock immediately theretofore purchasable and receivable upon the exercise
of the rights represented thereby, the kind and amount of shares, stock or other equity securities or property (including cash) receivable
upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that
the holder of the warrants would have received if such holder had exercised their warrants immediately prior to such event. However,
if such holders were entitled to exercise a right of election as to the kind or amount of securities, cash or other assets receivable
upon such merger or consolidation, then the kind and amount of securities, cash or other assets for which each warrant will become exercisable
will be deemed to be the weighted average of the kind and amount received per share by such holders in such merger or consolidation that
affirmatively make such election, and if a tender, exchange or redemption offer has been made to and accepted by such holders under circumstances
in which, upon completion of such tender or exchange offer, the maker thereof, together with members of any group (within the meaning
of Rule 13d-5(b)(1) under the Exchange Act of which such maker is a part, and together with any affiliate or associate
of such maker (within the meaning of Rule 12b-2 under the Exchange Act) and any members of any such group of which any such
affiliate or associate is a part, own beneficially (within the meaning of Rule 13d-3 under the Exchange Act) more than 50%
of the issued and outstanding shares of Common Stock, the holder of a warrant will be entitled to receive the highest amount of cash,
securities or other property to which such holder would actually have been entitled as a stockholder if such warrant holder had exercised
the warrant prior to the expiration of such tender or exchange offer, accepted such offer and all of the shares of Common Stock held
by such holder had been purchased pursuant to such tender or exchange offer, subject to adjustment (from and after the consummation of
such tender or exchange offer) as nearly equivalent as possible to the adjustments provided for in the Warrant Agreement. Additionally,
if less than 70% of the consideration receivable by the holders of shares of Common Stock in such a transaction is payable in the form
of ordinary shares in the successor entity that is listed for trading on a national securities exchange or is quoted in an established
over-the-counter market, or is to be so listed for trading or quoted immediately following such event, and if the registered holder of
the warrant properly exercises the warrant within 30 days following public disclosure of such transaction, the warrant exercise price
will be reduced as specified in the Warrant Agreement based on the per share consideration minus Black-Scholes Warrant Value (as defined
in the Warrant Agreement) of the warrant.
The warrants have been issued
in registered form under a Warrant Agreement between the Transfer Agent, as warrant agent, and the Company. The Warrant Agreement provides
that (i) the terms of the warrants may be amended without the consent of any holder for the purpose of (A) curing any ambiguity
or correct any mistake, including to conform the provisions of the Warrant Agreement to the description of the terms of the warrants
and the Warrant Agreement set forth in the prospectus delivered to investors in connection with the IPO, or defective provision or (B) adding
or changing any provisions with respect to matters or questions arising under the Warrant Agreement as the parties to the Warrant Agreement
may deem necessary or desirable and that the parties deem to not adversely affect the rights of the registered holders of the warrants
and (ii) all other modifications or amendments require the vote or written consent of at least 65% of the then outstanding public
warrants; provided, that any amendment that solely affects the terms of the private placement warrants or any provision of the Warrant
Agreement solely with respect to the private placement warrants will also require at least 65% of the then outstanding private placement
warrants.
The warrant holders do not
have the rights or privileges of holders of shares of Common Stock and any voting rights until they exercise their warrants and receive
shares of Common Stock. After the issuance of shares of Common Stock upon exercise of the warrants, each holder will be entitled to one
vote for each share held of record on all matters to be voted on by stockholders.
Subject to applicable law,
any action, proceeding or claim against Wheels Up arising out of or relating in any way to the Warrant Agreement will be brought and
enforced in the courts of the State of New York or the U.S. District Court for the Southern District of New York, and Wheels Up has irrevocably
submitted to such jurisdiction, which jurisdiction will be the exclusive forum for any such action, proceeding or claim. This provision
applies to claims under the Securities Act but does not apply to claims under the Exchange Act or any claim for which the federal
district courts of the United States are the sole and exclusive forum.
Private Placement
Warrants
The private placement warrants
(including the shares of Common Stock issuable upon exercise of the private placement warrants) will not be redeemable by Wheels Up (except
as described above under “- Public Warrants - Redemption of warrants when the price per whole share of Common
Stock equals or exceeds $100.00”) so long as they are held by the Sponsor or its permitted transferees. The Sponsor, or its
permitted transferees, have the option to exercise the private placement warrants on a cashless basis and have certain registration rights
described herein. Otherwise, the private placement warrants have terms and provisions that are identical to those of the public warrants.
If the private placement warrants are held by holders other than the Sponsor or its permitted transferees, the private placement warrants
will be redeemable by Wheels Up in all redemption scenarios and exercisable by the holders on the same basis as the public warrants.
Except
as described above under “- Public Warrants - Redemption of warrants when the price per whole share of
Common Stock equals or exceeds $100.00,” if holders of the private placement warrants elect to exercise them on a cashless
basis, they would pay the exercise price by surrendering his, her or its warrants for that number of shares of Common Stock equal to
the quotient obtained by dividing (i) the product of the number of shares of Common Stock underlying the warrants, multiplied by
the excess of the “sponsor fair market value” (as defined below) less the exercise price of the warrants by (ii) the
sponsor fair market value. For these purposes, the “sponsor fair market value” shall mean the average last reported sale
price of the shares of Common Stock for the 10 trading days ending on the third trading day prior to the date on which the notice of
warrant exercise is sent to the warrant agent. The reason that Wheels Up has agreed that these warrants will be exercisable on a cashless
basis so long as they are held by the Sponsor and its permitted transferees is because it was not known at the time of the issuance of
the Private Placement Warrants whether they will be affiliated with Wheels Up following the closing of the business combination between
WUP Holdings and Aspirational on July 13, 2021. If some or all of them remained affiliated with Wheels Up, the ability
of such affiliates to sell Wheels Up’s securities in the open market would be significantly limited. Wheels Up has a policy in
place that restrict insiders from selling its securities except during specific periods of time. Even during such periods of time when
insiders will be permitted to sell Wheels Up securities, an insider cannot trade in Wheels Up’s securities if he or she is in possession
of material non-public information. Accordingly, unlike public stockholders who could exercise their warrants and sell the shares of
Common Stock received upon such exercise freely in the open market in order to recoup the cost of such exercise, the insiders could be
significantly restricted from selling such securities. As a result, Wheels Up believes that allowing the holders to exercise such warrants
on a cashless basis is appropriate.
Transfer Agent and Warrant Agent
The warrant agent for the
warrants is Continental Stock Transfer & Trust Company, whose address is One State Street, 30th Floor, New York, NY 10004.
DESCRIPTION
OF UNITS
We
may issue units consisting of two or more other constituent securities. These units may be issuable as, and for a specified period of
time may be transferable as, a single security only, rather than as the separate constituent securities comprising such units. Each series
of units will be issued under a separate unit agreement to be entered into by our company and a unit agent specified in the applicable
prospectus supplement. The statements made in this section relating to the units are summaries only. These summaries are not complete
and are subject to, and qualified in their entirety by reference to, the provisions of the applicable unit agreement. When we issue units,
we will provide the specific terms of the units in a prospectus supplement. To the extent the information contained in the prospectus
supplement differs from this summary description, you should rely on the information in the prospectus supplement.
When we issue units,
we will provide in a prospectus supplement the following terms of the units being issued:
| · | the
title of any series of units; |
| · | identification
and description of the separate constituent securities comprising the units; |
| · | the
price or prices at which the units will be issued; |
| · | the
date, if any, on and after which the constituent securities comprising the units will be
separately transferable; |
| · | information
with respect to any book-entry procedures; |
| · | a
discussion of certain U.S. federal income tax considerations applicable to the units; and |
| · | any
other terms of the units and their constituent securities. |
OWNERSHIP
OF SECURITIES
We
can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail
below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee maintain
for this purpose as the “direct holders” or “holders” of those securities. These persons are the legal holders
of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered
in their own names, as “indirect holders” of those securities. As we discuss below, indirect holders are not legal holders,
and investors in securities issued in book-entry form or in street name will be indirect holders.
Book-Entry Holders
We
may issue securities in book-entry form only, as we will specify in the prospectus supplement pursuant to which securities are issued.
This means securities may be represented by one or more global securities registered in the name of a financial institution that holds
them as depositary on behalf of other financial institutions that participate in the depositary’s book-entry system. These participating
institutions, which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or
their customers.
Only
the person in whose name a security is registered is recognized as the holder of that security. Securities issued in global form will
be registered in the name of the depositary or its participants. Consequently, for securities issued in global form, we will recognize
only the depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary
passes along the payments it receives to its participants, whom in turn pass the payments along to their customers who are the beneficial
owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they are
not obligated to do so under the terms of the securities.
As
a result, investors in a book-entry security will not own securities directly. Instead, they will own beneficial interests in a global
security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds
an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not holders,
of the securities.
Street Name Holders
We
may terminate a global security or issue securities in non-global form. In these cases, investors may choose to hold their
securities in their own names or in “street name.” Securities held by an investor in street name would be registered in the
name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest
in those securities through an account he or she maintains at that institution.
For
securities held in street name, we will recognize only the intermediary banks, brokers and other financial institutions in whose names
the securities are registered as the holders of those securities, and we will make all payments on those securities to them. These institutions
pass along the payments they receive to their customers who are the beneficial owners, but only because they agreed to do so in their
customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders,
not holders, of those securities.
Legal Holders
Our
obligations run only to the legal holders of the securities. We generally do not have obligations to investors who hold beneficial interests
in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect
holder of a security or has no choice because we are issuing the securities only in global form. For example, once we make a payment
or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required, under agreements
with depositary participants or customers or by law, to pass it along to the indirect holders but does not do so. Whether and how the
holders contact the indirect holders is up to the holders.
Special Considerations for Indirect Holders
If
you hold securities through a bank, broker or other financial institution, either in book-entry form or in street name, you should check
with your own institution to find out:
| · | how
it handles securities payments and notices; |
| · | whether
it imposes fees or charges; |
| · | how
it would handle a request for the holders’ consent, if ever required; |
| · | whether
and how you can instruct it to send you securities registered in your own name so you can
be a holder, if that is permitted in the future; |
| · | how
it would exercise rights under the securities if there were a default or other event triggering
the need for holders to act to protect their interests; and |
| · | if
the securities are in book-entry form, how the depositary’s rules and procedures
will affect these matters. |
Global Securities
A
global security is a security held by a depositary that represents one or any other number of individual securities. Generally, all securities
represented by the same global securities will have the same terms.
Each
security issued in book-entry form will be represented by a global security that we deposit with and register in the name of a financial
institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless
we specify otherwise in a particular accompanying prospectus supplement, DTC, will be the depositary for all securities issued in book-entry
form.
A
global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary,
unless special termination situations arise. We describe those situations below under “—Special Situations When a Global
Security Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the sole registered
owner and holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests
in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that
in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by
a global security will not be a holder of the security, but only an indirect holder of a beneficial interest in the global security.
If
the prospectus supplement for a particular security indicates that the security will be issued in global form only, then the security
will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may
issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry
clearing system.
Special Considerations for Global Securities
As
an indirect holder, an investor’s rights relating to a global security will be governed by the account rules of the investor’s
financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect
holder as a holder of securities and instead deal only with the depositary that holds the global security.
If
securities are issued only in the form of a global security, an investor should be aware of the following:
| · | an
investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates
for his or her interest in the securities, except in the special situations we describe below; |
| · | an
investor will be an indirect holder and must look to his or her own bank or broker for payments
on the securities and protection of his or her legal rights relating to the securities, as
described above; |
| · | an
investor may not be able to sell interests in the securities to some insurance companies
and to other institutions that are required by law to own their securities in non-book-entry form; |
| · | an
investor may not be able to pledge his or her interest in a global security in circumstances
where certificates representing the securities must be delivered to the lender or other beneficiary
of the pledge in order for the pledge to be effective; |
| · | the
depositary’s policies, which may change from time to time, will govern payments, transfers,
exchanges and other matters relating to an investor’s interest in a global security.
We and any applicable trustee have no responsibility for any aspect of the depositary’s
actions or for its records of ownership interests in a global security. We and the trustee
also do not supervise the depositary in any way; |
| · | the
depositary may, and we understand that DTC will, require that those who purchase and sell
interests in a global security within its book-entry system to use immediately available
funds, and your broker or bank may require you to do so as well; and |
| · | financial
institutions that participate in the depositary’s book-entry system, and through which
an investor holds its interest in a global security, may also have their own policies affecting
payments, notices and other matters relating to the securities. There may be more than one
financial intermediary in the chain of ownership for an investor. We do not monitor and are
not responsible for the actions of any of those intermediaries. |
Special Situations when a Global Security
will be Terminated
In
a few special situations described below, the global security will terminate and interests in it will be exchanged for physical certificates
representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to
the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to
their own name, so that they will be direct holders. We have described the rights of holders and indirect holders above.
The
global security will terminate when any of the following special situations occur:
| · | if
the depositary notifies us that it is unwilling, unable or no longer qualified to continue
as depositary for that global security and we do not appoint another institution to act as
depositary within 90 days; |
| · | if
we notify any applicable trustee that we wish to terminate that global security; or |
| · | if
an event of default has occurred with regard to securities represented by that global security
and has not been cured or waived. |
The prospectus supplement
may also list additional situations for terminating a global security that would apply only to the particular series of securities covered
by the prospectus supplement. When a global security terminates, the depositary, and not we or any applicable trustee, is responsible
for deciding the names of the institutions that will be the initial direct holders.
PLAN
OF DISTRIBUTION
We
may sell the securities being offered hereby from time to time:
| · | to
or through one or more underwriters or dealers; |
| · | through
one or more agents; |
| · | directly
to purchasers; or |
| · | through
a combination of these methods. |
The
prospectus supplement with respect to each offering of securities will set forth the specific plan of distribution and the terms of the
offering, including:
| · | the
names of any underwriters, dealers or agents; |
| · | the
purchase price or initial public offering price of the securities; |
| · | the
net proceeds from the sale of the securities; |
| · | the
use of the net proceeds; |
| · | any
delayed delivery arrangements; |
| · | any
underwriting discounts, commissions and other items constituting underwriters’ compensation; |
| · | any
discounts or concessions allowed or re-allowed or paid to dealers; and |
| · | any
commissions paid to agents. |
We
may designate agents to solicit purchases for the period of their appointment and to sell securities on a continuing basis, including
pursuant to “at the market offerings.”
We
may offer these securities to the public through underwriting syndicates represented by managing underwriters or through underwriters
without a syndicate. If underwriters are used, we will enter into an underwriting agreement with the underwriters at the time of the
sale of the securities and the securities will be acquired by the underwriters for their own accounts. The underwriters may resell the
securities in one or more transactions, including negotiated transactions at a fixed public offering price or at varying prices determined
at the time of sale. Unless otherwise indicated in the applicable prospectus supplement, the obligations of the underwriters to purchase
the securities will be subject to customary conditions precedent and the underwriters will be obligated to purchase all of the offered
securities if any of the securities are purchased. Underwriters may sell securities to or through dealers, and the dealers may receive
compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom
they may act as agent. Any initial public offering price and any discounts or concessions allowed or re-allowed or paid to
dealers may be changed from time to time.
Underwriters
and agents may from time to time purchase and sell the securities described in this prospectus and the applicable prospectus supplement
in the secondary market, but they are not obligated to do so. No assurance can be given that a secondary market for the securities will
develop or that adequate liquidity will exist in the secondary market if one develops. From time to time, underwriters and agents may
make a market in the securities, but they are not required to do so. In order to facilitate the offering of the securities, the underwriters
may engage in transactions that stabilize, maintain or otherwise affect the price of the securities or of any other securities, the price
of which may be used to determine payments on the securities. Specifically, the underwriters may over-allot in connection with an offering,
creating a short position in the debt securities for their own accounts. In addition, to cover over-allotments or to stabilize the price
of the securities or of any other securities, the underwriters may bid for, and purchase, the securities or any other securities in the
open market. Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may reclaim selling
concessions allowed to an underwriter or a dealer for distributing the securities in the offering, if the syndicate repurchases previously
distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any of these activities
may stabilize or maintain the market price of the securities above independent market levels. The underwriters are not required to engage
in these activities, and they may suspend or terminate any of these activities at any time.
Underwriters
named in an applicable prospectus supplement are, and dealers and agents named in an applicable prospectus supplement may be, deemed
to be “underwriters” within the meaning of the Securities Act in connection with the securities offered thereby, and any
discounts or commissions they receive from us and any profit on their resale of the securities may be deemed to be underwriting discounts
and commissions under the Securities Act. We may have agreements with the underwriters, dealers or agents to indemnify them against certain
civil liabilities, including liabilities under the Securities Act, or to contribute with respect to payments they may be required to
make. Underwriters, dealers or agents and their respective affiliates may be customers of, engage in transactions with, or perform services
for us or our subsidiaries and affiliates in the ordinary course of business.
If
indicated in an applicable prospectus supplement, we may authorize dealers acting as our agents to solicit offers from some institutions
to purchase our securities at the public offering price given in that supplement under “Delayed Delivery Contracts” providing
for payment and delivery on the date or dates stated in such supplement. Each contract will be for an amount not less than, and the aggregate
principal amount of securities sold under the contracts will not be an amount less nor more than, the respective amounts stated in the
applicable prospectus supplement. Institutions with whom contracts, when authorized, may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but will in
all cases be subject to our approval. The Delayed Delivery Contracts will be subject only to those conditions set forth in the applicable
prospectus supplement or any related free writing prospectus, and the applicable prospectus supplement or any related free writing prospectus
will set forth any commissions we pay for solicitation of such contracts.
One
or more firms, referred to as “remarketing firms,” may also offer or sell the securities, if the applicable prospectus supplement
so indicates, in connection with a remarketing arrangement upon their purchase. Remarketing firms will act as principals for their own
accounts or as agents for us. These remarketing firms will offer or sell the securities in accordance with a redemption or repayment
pursuant to the terms of the securities. The applicable prospectus supplement will identify any remarketing firm and the terms of its
agreement, if any, with us and will describe the remarketing firm’s compensation. Remarketing firms may be deemed to be underwriters
in connection with the securities they remarket. Remarketing firms may be entitled under agreements that may be entered into with us
to indemnification by us against and contribution toward certain civil liabilities, including liabilities under the Securities Act, and
the remarketing firms and their respective affiliates may be customers of, engage in transactions with, or perform services for us or
our subsidiaries and affiliates in the ordinary course of business.
Unless
indicated in the applicable prospectus supplement, we do not expect to apply to list any series of debt securities on a securities exchange.
Any Common Stock sold pursuant to this prospectus and the applicable prospectus supplement will be listed on the NYSE.
In
addition, we may sell any securities covered by this prospectus in private transactions rather than pursuant to this prospectus.
Under Rule 15c6-1 of
the Exchange Act, trades in the secondary market generally are required to settle in one business day, unless the parties to any such
trade expressly agree otherwise. The applicable prospectus supplement may provide that the original
issue date for your securities may be more than one scheduled business day after the trade date for your securities.
LEGAL
MATTERS
The validity of the securities
offered by this prospectus have been passed upon for us by Cozen O’Connor P.C., Pittsburgh, Pennsylvania. Additional
legal matters may be passed upon for us, any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus
supplement.
EXPERTS
The audited consolidated
financial statements incorporated by reference in this prospectus and elsewhere in this registration statement have been so incorporated
by reference in reliance upon the report of Grant Thornton LLP, independent registered public accountants, upon the authority
of said firm as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We have filed with the SEC
a registration statement on Form S-3 under the Securities Act with respect to the securities offered by this prospectus. This prospectus
does not contain all of the information included in the registration statement. For further information pertaining to us and our securities
you should refer to the registration statement and our exhibits. Statements contained in this prospectus concerning any of our contracts,
agreements or other documents are not necessarily complete. If a contract or document has been filed as an exhibit to the registration
statement, we refer you to the copy of the contract or document that has been filed. Each statement in this prospectus relating to a
contract or document filed as an exhibit is qualified in all respects by the filed exhibit.
We are subject to the informational
requirements of the Exchange Act and file annual, quarterly and current reports, proxy statements and information statements and other
information with the SEC. Our filings with the SEC are available to the public on the SEC’s website at www.sec.gov. Those
filings are also available to the public at no cost on, or accessible through, our website under the heading “Investor Relations”
at www.wheelsup.com. The information we file with the SEC or contained on or accessible through our corporate website or any other
website that we may maintain is not incorporated by reference into and is not part of this prospectus or the registration statement of
which this prospectus is a part. The website addresses are included as inactive textual references only.
INFORMATION
INCORPORATED BY REFERENCE
This registration statement
incorporates by reference important business and financial information about our Company that is not included in or delivered with this
document. The information incorporated by reference is considered to be part of this prospectus, and the SEC allows us to “incorporate
by reference” the information we file with it, which means that we can disclose important information to you by referring you to
those documents instead of having to repeat the information in this prospectus. Any statement contained in any document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this prospectus to the
extent that a statement contained in or omitted from this prospectus or any accompanying prospectus supplement, or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus. We incorporate
by reference:
| · | our
Current Reports on Form 8-K, filed with the SEC on February 5,
2024, March 7,
2024, June 7, 2024,
June 7, 2024,
June 17, 2024,
August 8, 2024,
August 21, 2024,
September 23, 2024,
October 22, 2024 and November 14, 2024
(in each case, excluding those portions furnished pursuant to Item 2.02 and Item 7.01 of
Form 8-K, if applicable) (File No. 001-39541); and |
We also incorporate by reference
into this prospectus any subsequent filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (other
than portions of those made pursuant to Item 2.02 or Item 7.01 of Form 8-K or other information “furnished” and not
filed with the SEC), including all filings filed after the date hereof and prior to the completion of an offering of securities under
this prospectus.
We have filed with the SEC
this registration statement under the Securities Act covering the shares of Common Stock to be offered and sold under this prospectus
and any applicable prospectus supplement. This prospectus does not contain all of the information included in the registration statement,
some of which is contained in exhibits to the registration statement. The registration statement, including the exhibits, can be read
at the SEC website referred to above under “Where You Can Find More Information.” Any statement made in this prospectus
or any prospectus supplement concerning the contents of any contract, agreement or other document is only a summary of the actual contract,
agreement or other document. If we have filed any contract, document, agreement or other document as an exhibit to the registration statement
or any other document incorporated herein by reference, you should read the exhibit for a more complete understanding of the document
or matter involved. Each statement regarding a contract, agreement or other document is qualified in its entirety by reference to the
actual document.
Our filings with the
SEC, including Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and
amendments to those reports, are available free of charge on our website at www.wheelsup.com as soon as reasonably
practicable after they are filed with, or furnished to, the SEC. Our website and the information contained on that site, or
connected to that site, are not incorporated into and are not a part of this prospectus or the registration statement of which this
prospectus is a part. The website address is included as an inactive textual reference only. Copies of all documents incorporated by
reference in this prospectus, other than exhibits to those documents unless such exhibits are specially incorporated by reference in
this prospectus, will be provided at no cost to each person, including any beneficial owner, who receives a copy of this prospectus
on the written or oral request of that person made to:
Wheels Up Experience Inc.
2135 American Way
Chamblee, Georgia 30341
Attn: Legal Department & Investor Relations
Telephone: (212) 257-5252
PART II — INFORMATION NOT REQUIRED
IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The following table sets forth all costs and
expenses, other than underwriting discounts and commissions, in connection with the sale of our securities being registered, all of which
will be paid by us. All amounts shown are estimates, except for the SEC registration fee.
| | |
Amount Paid or
to be Paid | |
| SEC Registration Fee | |
$ | 54,799.12* | |
| Accounting Fees and Expenses | |
| ** | |
| Legal Fees and Expenses | |
| ** | |
| Rating Agency Fees | |
| ** | |
| Trustee’s Fees and Expenses | |
| ** | |
| Financial Printer and Miscellaneous Fees and Expenses | |
| ** | |
| Total | |
$ | ** | |
| * | Reflects certain fee offsets permitted pursuant to Rule 457(p) promulgated under the Securities Act. |
| ** | These fees and expenses are calculated based on the securities offered
and the number of issuances and accordingly cannot be defined at this time. |
Item
15. Indemnification of Directors and Officers.
Section 145 of the
DGCL provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection
with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person
being or having been a director, officer, employee or agent of the Company. The DGCL provides that Section 145 is not exclusive
of other rights to which those seeking indemnification may be entitled under any bylaws, agreement, vote of stockholders or disinterested
directors or otherwise. The Company’s certificate of incorporation and bylaws provide for indemnification by the Company of its
directors and officers to the fullest extent permitted by the DGCL.
Section 102(b)(7) of
the DGCL permits a corporation to provide in its certificate of incorporation that a director or officer of the corporation shall not
be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer,
except for liability (1) for any breach of the director’s or officer’s duty of loyalty to the corporation or its stockholders,
(2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) for
unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions, (4) for any transaction from which
the director or officer derived an improper personal benefit or (5) for any action by or in the right of the corporation with respect
to an officer. The Company’s Amended and Restated Certificate of Incorporation, filed with the Secretary of State of the State
of Delaware on November 15, 2023, provides for such limitation of liability to the fullest extent permitted by the DGCL.
The Company entered, and
expects to continue to enter into, indemnification agreements with its directors and executive officers. Each indemnification agreement
provides for indemnification and advancement by the Company of certain expenses and costs, if the basis of the indemnitee’s involvement
was by reason of the fact that the indemnitee is or was a director, officer, employee or agent of the Company or any of its subsidiaries
or was serving at the Company’s request in an official capacity for another entity, to the fullest extent permitted by the laws
of the state of Delaware.
The Company maintains standard
policies of insurance that provide coverage to its directors and officers against loss rising from claims made by reason of breach of
duty or other wrongful act and with respect to indemnification payments that the Company may make to such directors and officers.
Item
16. Exhibits and Financial Statement Schedules.
The financial statements
filed as part of this registration statement are listed in the index to the financial statements immediately preceding such financial
statements, which index to the financial statements is incorporated herein by reference.
Exhibit
No. |
|
Description |
| 1.1* |
|
Form of
Underwriting Agreement |
| 2.1+ |
|
Agreement
and Plan of Merger, dated as of February 1, 2021 by and among the Registrant, Wheels Up Partners Holdings LLC, KittyHawk Merger
Sub LLC, Wheels Up Blocker Sub LLC, the Blocker Merger Subs (as defined in therein) and the Blockers (as defined therein) (Incorporated
by reference to Exhibit 2.1 to Aspirational Consumer Lifestyle Corp’s Current Report on Form 8-K/A filed with the
SEC on February 2, 2021) |
| 2.2 |
|
Amendment
No. 1 to Agreement and Plan of Merger, dated as of May 6, 2021 (incorporated by reference to Exhibit 2.1 to Aspirational
Consumer Lifestyle Corp.’s Current Report on Form 8-K, filed with the SEC on May 6, 2021) |
| 4.1 |
|
Amended
and Restated Certificate of Incorporation of Wheels Up Experience Inc., filed on November 15, 2023 (incorporated by reference
to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on November 16, 2023) |
| 4.2 |
|
Amended
and Restated By-Laws of Wheels Up Experience Inc., effective as of November 15, 2023 (incorporated by reference to Exhibit 3.2
to the Registrant's Annual Report on Form 10-K, filed with the SEC on March 7, 2024) |
| 4.3 |
|
Specimen
Class A Common Stock Certificate of Wheels Up Experience Inc. (incorporated by reference to Exhibit 4.5 to Aspirational
Consumer Lifestyle Corp.’s Registration Statement on Form S-4/A (Registration No. 333-254304), filed with the SEC
on May 6, 2021) |
| 4.4 |
|
Warrant
Agreement, dated as of September 25, 2020, between Aspirational Consumer Lifestyle Corp. and Continental Stock Transfer &
Trust Company, as warrant agent (incorporated by reference to Exhibit 4.1 to Aspirational Consumer Lifestyle Corp.’s Current
Report on Form 8-K, filed with the SEC on September 25, 2020) |
| 4.5** |
|
Form of
Indenture (for Debt Securities) |
| 4.6* |
|
Form of
Debt Security |
| 4.7* |
|
Form of
Warrant |
| 4.8* |
|
Form of
Warrant Agreement |
| 5.1** |
|
Opinion
of Cozen O’Connor P.C. |
| 23.1** |
|
Consent
of Grant Thornton LLP |
| 23.2** |
|
Consent
of Cozen O’Connor P.C. (included in Exhibit 5.1) |
| 24.1** |
|
Power
of Attorney (included on signature page of the initial filing of this Registration Statement) |
| 25.1*** |
|
Form T-1
Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the Trustee under the Indenture (for Debt Securities) |
| 99.1** |
|
Unaudited
Pro Forma Condensed Consolidated Financial Information (Consolidated Statement of Operations for the Year Ended December 31,
2023) |
| 107** |
|
Filing
Fee Table |
| * | To be filed by amendment or incorporated by
reference in connection with the offering of a particular class or series of securities. |
| *** | Where applicable, to be incorporated by reference
to a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture
Act of 1939, as amended. |
| + | Schedules and exhibits have been omitted pursuant to Item 601(b)(2) of
Regulation S-K. The Registrant agrees to furnish supplementally a copy of any omitted schedule or exhibit to the SEC upon request. |
Item
17. Undertakings.
| (a) | The
undersigned registrant hereby undertakes: |
| (1) | To
file, during any period in which offers or sales are being made, a post-effective amendment
to this registration statement: |
| (i) | to
include any prospectus required by Section 10(a)(3) of the Securities Act; |
| (ii) | to
reflect in the prospectus any facts or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than 20 percent change
in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and |
| (iii) | to
include any material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such information in the
registration statement; |
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
| (2) | That,
for the purpose of determining any liability under the Securities Act, each such post- effective
amendment shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. |
| (3) | To
remove from registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering. |
| (4) | That,
for the purpose of determining liability under the Securities Act to any purchaser: |
| (i) | Each
prospectus filed by a registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was deemed part
of and included in the registration statement; and |
| (ii) | Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the
information required by Section 10(a) of the Securities Act shall be deemed to
be part of and included in the registration statement as of the earlier of the date such
form of prospectus is first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As provided in Rule 430B,
for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration statement
or prospectus that is part of the registration statement or made in a document incorporated
or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document
immediately prior to such effective date. |
| (5) | That,
for the purpose of determining liability of the registrant under the Securities Act to any
purchaser in the initial distribution of the securities, the undersigned registrant undertakes
that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser,
if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to such purchaser: |
| (i) | Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering
required to be filed pursuant to Rule 424; |
| (ii) | Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned
registrant or used or referred to by the undersigned registrant; |
| (iii) | The
portion of any other free writing prospectus relating to the offering containing material
information about the undersigned registrant or its securities provided by or on behalf of
the undersigned registrant; and |
| (iv) | Any
other communication that is an offer in the offering made by the undersigned registrant to
the purchaser. |
| (6) | That,
for purposes of determining any liability under the Securities Act, each filing of the registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. |
| (7) | Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person
of the registrant in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue. |
| (8) | To file an application for the purpose
of determining the eligibility of the trustee to act under subsection (a) of section
310 of the Trust Indenture Act (“Act”) in accordance with the rules and
regulations prescribed by the Commission under section 305(b)(2) of the Act. |
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Chamblee, State of Georgia, on this December 27, 2024.
| |
WHEELS
UP EXPERIENCE INC. |
| |
|
| |
|
| |
/s/
George Mattson |
| |
Name: |
George Mattson |
| |
Title: |
Chief Executive Officer |
POWER OF ATTORNEY
Each of the undersigned
directors and officers of the above named registrant, by his or her execution hereof, hereby constitutes and appoints George Mattson,
Alexander Chatkewitz and Matthew Knopf, and each of them, as his or her true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, to do any and all acts and things for him or her, and in his or her name, place and stead, to execute
any and all amendments (including post-effective amendments) to such registration statement and any related registration statement
(or amendment thereto) pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same, together with all
exhibits and schedules thereto and all other documents in connection therewith, with the Securities and Exchange Commission and with
such state securities authorities as may be appropriate, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite, necessary or advisable to be done in and about the premises,
as fully and to all intents and purposes as the undersigned might or could do in person, and hereby ratifying and confirming all the
acts of said attorneys-in-fact and agents, or any of them, or their substitutes, which they may lawfully do in the premises or cause
to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act, this registration statement has been signed by the following persons in the capacities indicated and on the date
indicated.
| Signature |
|
Capacity |
|
Date |
| |
|
|
|
|
| /s/
George Mattson |
|
Chief
Executive Officer and Director |
|
December 27, 2024 |
| George
Mattson |
|
(Principal
Executive Officer) |
|
|
| |
|
|
|
|
| /s/
Eric Cabezas |
|
Interim
Chief Financial Officer |
|
December 27, 2024 |
| Eric
Cabezas |
|
(Principal
Financial Officer) |
|
|
| |
|
|
|
|
| /s/
Alexander Chatkewitz |
|
Chief
Accounting Officer |
|
December 27, 2024 |
| Alexander
Chatkewitz |
|
(Principal
Accounting Officer) |
|
|
| |
|
|
|
|
| /s/
Adam Zirkin |
|
Chairperson
of the Board |
|
December 27, 2024 |
| Adam
Zirkin |
|
|
|
|
| |
|
|
|
|
| /s/
Timothy Armstrong |
|
Director |
|
December 27, 2024 |
| Timothy
Armstrong |
|
|
|
|
| |
|
|
|
|
| /s/
Alain Bellemare |
|
Director |
|
December 27, 2024 |
| Alain
Bellemare |
|
|
|
|
| |
|
|
|
|
| /s/
Adam Cantor |
|
Director |
|
December 27, 2024 |
| Adam
Cantor |
|
|
|
|
| |
|
|
|
|
| /s/
Andrew Davis |
|
Director |
|
December 27, 2024 |
| Andrew
Davis |
|
|
|
|
| |
|
|
|
|
| /s/
Dwight James |
|
Director |
|
December 27, 2024 |
| Dwight
James |
|
|
|
|
| |
|
|
|
|
| /s/
Daniel Janki |
|
Director |
|
December 27, 2024 |
| Daniel
Janki |
|
|
|
|
| |
|
|
|
|
| /s/
Thomas Klein |
|
Director |
|
December 27, 2024 |
| Thomas
Klein |
|
|
|
|
| |
|
|
|
|
| /s/
Zachary Lazar |
|
Director |
|
December 27, 2024 |
| Zachary
Lazar |
|
|
|
|
| |
|
|
|
|
| /s/
Lee Moak |
|
Director |
|
December 27, 2024 |
| Lee Moak |
|
|
|
|
| |
|
|
|
|
| /s/
Gregory Summe |
|
Director |
|
December 27, 2024 |
| Gregory Summe |
|
|
|
|
Exhibit 4.5
WHEELS UP EXPERIENCE INC.
AND
[__],
Trustee
INDENTURE
Dated as of [__]
CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act (as defined herein)
and Indenture, dated as of [__], between WHEELS UP EXPERIENCE INC. and [__], as Trustee:
| SECTION OF THE ACT |
SECTION OF INDENTURE |
| 310(a)(1) and (2) |
Section 6.08 |
| 310(a)(3) and (4) |
Inapplicable |
| 310(b) |
Sections 6.08 and 6.10(a), (b) and (d) |
| 311(a) |
Section 6.13 |
| 311(b) |
Section 6.13 |
| 312(a) |
Sections 4.01 and 4.02 |
| 312(b) |
Section 4.04 |
| 312(c) |
Section 4.02 |
| 313(a) |
Section 4.04 |
| 313(b)(1) |
Inapplicable |
| 313(b)(2) |
Section 4.04 |
| 313(c) |
Sections 4.04, 5.07, 6.09, 6.10, 9.02 and 14.02 |
| 313(d) |
Section 4.04 |
| 314(a) |
Sections 3.06 and 4.03 |
| 314(b) |
Inapplicable |
| 314(c)(1) and (2) |
Section 13.05 |
| 314(c)(3) |
Inapplicable |
| 314(d) |
Inapplicable |
| 314(e) |
Section 13.05 |
| 314(f) |
Inapplicable |
| 315(a), (c) and (d) |
Section 6.01 |
| 315(b) |
Section 5.07 |
| 315(e) |
Section 5.08 |
| 316(a)(1) |
Sections 5.05 and 5.06 |
| 316(a)(2) |
Not required |
| 316(a) (last sentence) |
Section 7.04 |
| 316(b) |
Section 5.04 |
| 317(a) |
Section 5.02 |
| 317(b) |
Sections 3.04(a) and (b) |
| 318(a) |
Sections 1.03 and 13.07 |
| * | This Cross Reference Sheet is not part of the Indenture. |
Table
of Contents
Page
| Article One DEFINITIONS |
1 |
| Section 1.01 Certain Terms Defined |
1 |
| Section 1.02 References are to Indenture |
5 |
| Section 1.03 Conflict with Trust Indenture Act |
5 |
| |
|
| Article Two ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
6 |
| Section 2.01 Forms Generally |
6 |
| Section 2.02 Form of Trustee’s Certificate of Authentication |
6 |
| Section 2.03 Amount Unlimited; Issuable in Series |
7 |
| Section 2.04 Authentication and Delivery of Securities |
9 |
| Section 2.05 Execution of Securities; Denomination; Payment of Interest |
11 |
| Section 2.06 Exchange of Securities |
13 |
| Section 2.07 Temporary Securities |
14 |
| Section 2.08 Mutilated, Destroyed, Lost or Stolen Securities |
14 |
| Section 2.09 Cancellation of Surrendered Securities |
15 |
| Section 2.10 Securities in Global Form |
15 |
| Section 2.11 CUSIP Numbers |
15 |
| |
|
| Article Three PARTICULAR COVENANTS OF THE COMPANY |
16 |
| Section 3.01 Payment of Principal of (and Premium, if any ) and Interest on Securities |
16 |
| Section 3.02 Maintenance of Office or Agency for Registration of Transfer, Exchange and Payment of Securities |
16 |
| Section 3.03 Ap p ointment to Fill a Vacancy in the Office of Trustee |
17 |
| Section 3.04 Provision as to Paying Agent |
17 |
| Section 3.05 Maintenance of Corporate Existence |
18 |
| Section 3.06 Officers’ Certificate as to Default |
18 |
| |
|
| Article Four SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
18 |
| Section 4.01 Company to Furnish Trustee Information as to Names and Addresses to Securityholders |
18 |
| Section 4.02 Preservation and Disclosure of Lists |
18 |
| Section 4.03 Reports by the Company |
19 |
| Section 4.04 Reports by the Trustee |
19 |
| |
|
| Article Five REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
20 |
| Section 5.01 Events of Default Defined; Acceleration of Maturity ; Waiver of Default |
20 |
| Section 5.02 Payment of Securities on Default; Suit Therefor |
22 |
| Section 5.03 Application of Amounts Collected by Trustee |
24 |
| Section 5.04 Limitation on Suits by Holders of Securities |
24 |
| Section 5.05 Proceedings by Trustee; Remedies Cumulative and Continuing |
25 |
| Section 5.06 Rights of Holders of Majority in Principal Amount of Securities to Direct Trustee and to Waive Defaults |
25 |
| Section 5.07 Trustee to Give Notice of Defaults Known to It, But May Withhold in Certain Circumstances |
26 |
| Section 5.08 Requirement of an Undertaking to Pay Costs in Certain Suits Under this Indenture or Against the Trustee |
26 |
| |
|
| Article Six CONCERNING THE TRUSTEE |
26 |
| Section 6.01 Duties and Responsibilities of Trustee |
26 |
| Section 6.02 Reliance on Documents, Opinions, etc. Subject to the provisions of Section 6.01: |
27 |
| Section 6.03 No Responsibility for Recitals, etc. |
29 |
| Section 6.04 Trustee, Paying Agent or Security Registrar May Own Securities |
29 |
| Section 6.05 Amounts Received by Trustee to be Held in Trust Without Interest |
29 |
| Section 6.06 Compensation and Expenses of Trustee |
29 |
| Section 6.07 Right of Trustee to Rely on Officers’ Certificate Where No Other Evidence Specifically Prescribed |
30 |
| Section 6.08 Conflicting Interest of Trustee |
30 |
| Section 6.09 Requirements for Eligibility of Trustee |
31 |
| Section 6.10 Resignation or Removal of Trustee |
31 |
| Section 6.11 Acceptance by Successor to Trustee; Notice of Succession of a Trustee |
32 |
| Section 6.12 Successor to Trustee by Merger, Consolidation or Succession to Business |
33 |
| Section 6.13 Preferential Collection of Claims Against Company |
33 |
| Section 6.14 Appointment of Authentication Agent |
33 |
| |
|
| Article Seven CONCERNING THE SECURITYHOLDERS |
34 |
| Section 7.01 Evidence of Action by Securityholders |
34 |
| Section 7.02 Proof of Execution of Instruments and of Holding of Securities |
35 |
| Section 7.03 Who May be Deemed Owners of Securities |
35 |
| Section 7.04 Securities Owned by Company or Controlled or Controlling Persons Disregarded for Certain Purposes |
35 |
| Section 7.05 Record Date for Action by Securityholders |
36 |
| Section 7.06 Instruments Executed by Securityholders Bind Future Holders |
36 |
| |
|
| Article Eight SECURITYHOLDERS’ MEETINGS |
37 |
| Section 8.01 Purposes for Which Meetings May be Called |
37 |
| Section 8.02 Manner of Calling Meetings; Record Date |
37 |
| Section 8.03 Call of Meeting by Company or Securityholders |
37 |
| Section 8.04 Who May Attend and Vote at Meetings |
38 |
| Section 8.05 Regulations |
38 |
| Section 8.06 Manner of Voting at Meetings and Record to be Kept |
39 |
| Section 8.07 Exercise of Rights of Trustee and Securityholders Not to be Hindered or Delayed |
39 |
| Section 8.08 Written Consent in Lieu of Meeting of Securityholders |
39 |
| Article Nine SUPPLEMENTAL INDENTURES |
40 |
| Section 9.01 Purposes for Which Supplemental Indentures May be Entered into Without Consent of Securityholders |
40 |
| Section 9.02 Modification of Indenture with Consent of Securityholders |
41 |
| Section 9.03 Effect of Supplemental Indentures |
42 |
| Section 9.04 Securities May Bear Notation of Changes by Supplemental Indentures |
42 |
| Section 9.05 Opinion of Counsel |
43 |
| |
|
| Article Ten CONSOLIDATION, MERGER AND SALE |
43 |
| Section 10.01 Company May Consolidate, etc., on Certain Terms |
43 |
| Section 10.02 Successor Person to be Substituted |
43 |
| Section 10.03 Opinion of Counsel to be Given to Trustee |
44 |
| |
|
| Article Eleven SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED AMOUNTS |
44 |
| Section 11.01 Satisfaction and Discharge of Indenture |
44 |
| Section 11.02 Application by Trustee of Funds Deposited for Payment of Securities |
48 |
| Section 11.03 Repayment of Amounts Held by Paying Agent |
48 |
| Section 11.04 Repayment of Amounts Held by Trustee |
48 |
| Section 11.05 Indemnity for U.S. Government Obligations |
48 |
| |
|
| Article Twelve IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS |
49 |
| Section 12.01 Incorporators, Shareholders, Officers and Directors Exempt from Individual Liability |
49 |
| |
|
| Article Thirteen MISCELLANEOUS PROVISIONS |
49 |
| Section 13.01 Successors and Assigns of Company Bound by Indenture |
49 |
| Section 13.02 Acts of Board, Committee or Officer of Successor Entity Valid |
49 |
| Section 13.03 Required Notices or Demands May be Served by Mail; Waiver |
49 |
| Section 13.04 Governing Law; WAIVER OF JURY TRIAL |
51 |
| Section 13.05 Evidence of Compliance with Conditions Precedent |
51 |
| Section 13.06 Payments Due on Saturdays, Sundays, and Holidays |
52 |
| Section 13.07 Provisions Required by Trust Indenture Act to Control |
52 |
| Section 13.08 Provisions of this Indenture and Security for the Sole Benefit of the Parties and the Securityholders |
52 |
| Section 13.09 Indenture May be Executed in Counterparts |
53 |
| Section 13.10 Article and Section Headings |
53 |
| Section 13.11 Securities In a Foreign Currency |
53 |
| Section 13.12 Force Majeure |
53 |
| Section 13.13 U.S.A. Patriot Act. |
53 |
| Section 13.14 Severability. |
54 |
| Article Fourteen REDEMPTION OF SECURITIES AND SINKING FUNDS |
54 |
| Section 14.01 Applicability of Article |
54 |
| Section 14.02 Notice of Redemption; Partial Redemptions |
54 |
| Section 14.03 Payment of Securities Called for Redemption |
55 |
| Section 14.04 Exclusion of Certain Securities from Eligibility for Selection for Redemption |
56 |
| Section 14.05 Mandatory and Optional Sinking Funds |
56 |
THIS
INDENTURE, dated as of [__], between WHEELS UP EXPERIENCE INC., a corporation duly organized and existing under the
laws of the State of Delaware (hereinafter sometimes referred to as the “Company”), and [__], a national banking
association (hereinafter sometimes referred to as the “Trustee”);
RECITALS OF THE COMPANY:
WHEREAS,
the Company has duly authorized the issue from time to time of its unsecured debentures, notes or other evidences of indebtedness to be
issued in one or more series (the “Securities”) up to such principal amount or amounts as may from time to time be
authorized in accordance with the terms of this Indenture;
WHEREAS,
the Company has duly authorized the execution and delivery of this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS,
all things necessary to make this Indenture a valid and legally binding indenture and agreement according to its terms have been done.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
In consideration of the premises
and the purchases of the Securities by the holders thereof, the Company and the Trustee mutually covenant and agree for the equal and
proportionate benefit of the holders from time to time of the Securities or any series thereof, as follows:
Article One
DEFINITIONS
Section 1.01
Certain Terms Defined. The terms defined in this Section 1.01 (except as otherwise expressly provided or unless
the context otherwise clearly requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section. All other terms used in this Indenture that are defined in the Trust Indenture Act, or the definitions
of which in the Securities Act are referred to in the Trust Indenture Act, including terms defined therein by reference to the Securities
Act (except as herein otherwise expressly provided or unless the context otherwise requires), shall have the meaning assigned to such
terms in the Trust Indenture Act and in the Securities Act as in effect from time to time. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with generally accepted accounting principles, and the term “generally
accepted accounting principles” means such accounting principles as are generally accepted at the time of any computation unless
a different time shall be specified with respect to such series of Securities as provided for in Section 2.03. The terms defined
in this Article have the meanings assigned to them in this Article and include the plural as well as the singular.
Affiliate:
The term “Affiliate” shall mean any person directly or indirectly controlling, controlled by, or under direct or indirect
common control with, the Company.
Authentication
Agent: The term “Authentication Agent” shall have the meaning given in Section 6.14.
Bankruptcy
Code: The term “Bankruptcy Code” shall mean Title 11, U.S. Code, or any similar federal or state law for
the relief of debtors.
Board
of Directors: The term “Board of Directors,” when used with reference to the Company, shall mean the Board
of Directors of the Company or any duly authorized committee of the Board of Directors of the Company.
Business
Day: The term “Business Day” shall mean, with respect to any Security, a day other than a Saturday, a Sunday
or a day that shall be in the city (or in any of the cities, if more than one), in which amounts are payable, as specified on the face
of the form of such Security, a day on which banking institutions are authorized or obligated by law or executive order to close.
Commission:
The term “Commission” shall mean the Securities and Exchange Commission, as from time to time constituted, created
under the Exchange Act or if at any time after the execution and delivery of this Indenture such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on said date.
Company:
The term “Company” shall mean Wheels Up Experience Inc., a Delaware corporation, and, subject to the provisions of
Article Ten, shall also include its successors and assigns.
Company
Order: The term “Company Order” shall mean a written statement, request or order of the Company signed in
its name by the Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, any Vice President,
the Chief Financial Officer, or the Treasurer or an Assistant Treasurer of the Company.
Covenant
Defeasance: The term “covenant defeasance” shall have the meaning given in Section 11.01(C).
Depositary:
The term “Depositary” shall mean, with respect to the Securities of any series issuable or issued in whole or in part
in the form of one or more Global Securities, the person designated as Depositary by the Company pursuant to Section 2.03
until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary”
shall mean or include each person who is then a Depositary hereunder, and if at any time there is more than one such person, “Depositary”
as used with respect to the Securities of any such series shall mean the Depositary with respect to the Global Securities of that series.
Dollar:
The term “Dollar” or “$” shall mean the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Event
of Default: The term “Event of Default” shall mean any event specified in Section 5.01, continued
for the period of time, if any, and after the giving of notice, if any, therein designated.
Exchange
Act: The term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
Foreign
Currency: The term “Foreign Currency” shall mean any coin, currency, currency unit or composite currency,
including, without limitation, the euro, issued by the government of one or more countries, other than the United States of America
or by any internationally recognized union, confederation or association of such governments.
Global
Security: The term “Global Security” shall mean a Security issued in accordance with Section 2.10
evidencing all or part of a series of Securities, which in each case is issued to the Depositary for such series, or part of a series,
or its nominee and registered in the name of such Depositary or nominee.
Indenture:
The term “Indenture” shall mean this instrument as originally executed and delivered or, if amended or supplemented
as herein provided, as so amended or supplemented or both, and shall include the forms and terms of particular series of Securities established
as contemplated hereunder, provided, that, if at any time more than one person is acting as Trustee under this instrument, “Indenture”
shall mean, with respect to one or more series of Securities for which such person is trustee, this instrument as originally executed
and delivered or, if amended or supplemented as herein provided, as so amended or supplemented or both, and shall include the forms and
terms of those particular series of Securities for which such person is Trustee established as contemplated hereunder, exclusive, however,
of any provisions or terms which relate solely to other series of Securities for which such person is not Trustee, regardless of when
such terms or provisions were adopted.
Interest:
The term “interest,” when used with respect to a non-interest bearing Security, shall mean interest payable after the
principal thereof has become due and payable, whether after maturity, by declaration of acceleration, by call for redemption pursuant
to a sinking fund, or otherwise.
Officers’
Certificate: The term “Officers’ Certificate” shall mean a certificate signed by any two of the following:
the Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President or any Vice President, and by the
Chief Financial Officer, Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company. Each such certificate
shall include the statements provided for in Section 13.05, if and to the extent required by the provisions thereof.
Opinion
of Counsel: The term “Opinion of Counsel” shall mean an opinion in writing signed by legal counsel, who
may be an employee of, or of counsel to, the Company or may be other counsel. Each such opinion shall include the statements provided
for in Section 13.05, if and to the extent required by the provisions thereof.
OID
Security: The term “OID Security” shall mean any Security that provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 5.01.
Outstanding:
The term “outstanding,” when used with reference to Securities, shall, subject to the provisions of Section 7.04,
mean, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture except:
(a) Securities
theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities,
or portions thereof, for the payment or redemption of which amounts in the necessary amount shall have been deposited in trust with the
Trustee or with any Paying Agent (other than the Company) or shall have been set aside and segregated in trust by the Company for the
holders of such Securities (if the Company shall act as its own Paying Agent), provided that if such Securities are to be redeemed prior
to the maturity hereof, notice of such redemption shall have been given as herein provided, or provision satisfactory to the Trustee shall
have been made for giving such notice, and, if all such Securities are redeemed, such deposit shall be in accordance with Article Eleven;
and
(c) Securities
in lieu of or in substitution for which other Securities shall have been authenticated and delivered, or which shall have been paid, pursuant
to the terms of Section 2.08, unless proof satisfactory to the Trustee is presented that any such Securities are held by a
person in whose hands such Security is a legal, valid and binding obligation of the Company.
In determining whether the
holders of the requisite principal amount of outstanding Securities of any or all series have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an OID Security that shall be deemed to be outstanding for such
purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 5.01.
Paying
Agent: The term “Paying Agent” shall mean any person authorized by the Company to pay the principal of,
premium, if any, or interest on any securities on behalf of the Company.
Person:
The term “person” shall mean any individual, corporation, business trust, partnership, limited liability company, joint
venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
Record
Date: The term “record date” shall have the meaning given in Section 2.05.
Responsible
Officer: The term “Responsible Officer,” when used with respect to the Trustee, shall mean any officer within
the corporate trust and agency group or department of the Trustee, including any Vice President, any trust officer or any other officer
of the Trustee performing functions similar to those performed by any of the above-designated officers and also means, with respect to
a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
Security
or Securities: The term “Security” or “Securities” shall mean any security or securities,
as the case may be, authenticated and delivered under this Indenture.
Securities
Act: The term “Securities Act” shall mean the Securities Act of 1933, as amended.
Securityholder:
The term “Securityholder,” “holder of Securities,” or other similar term, shall mean any person
who shall at the time be the registered holder of any Security or Securities on the books of the Company kept for that purpose in accordance
with the provisions of this Indenture.
Subsidiary:
The term “Subsidiary” shall mean any corporation or other entity at least a majority of the outstanding voting shares
of which is at the time directly or indirectly owned or controlled (either alone or through Subsidiaries or together with Subsidiaries)
by the Company or another Subsidiary.
Trustee;
principal office: The term “Trustee” shall mean [__], and, subject to the provisions of Article Six,
shall also include its successors. The term “principal office” of the Trustee shall mean a principal office of the
Trustee at which at any particular time its corporate trust business related to the Securities may be administered, which office at the
date of execution of this Indenture is located at [__].
Trust
Indenture Act: The term “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, as
in effect from time to time.
U.S.
Government Obligations: The term “U.S. Government Obligations” shall have the meaning given in Section 11.01(A).
Yield
to Maturity: The term “Yield to Maturity” shall mean the yield to maturity on a series of Securities, calculated
at the time of the issuance of such series, or, if applicable, at the most recent redetermination of interest on such series, and calculated
in accordance with accepted financial practice.
Section 1.02
References are to Indenture. Unless the context otherwise requires, all references herein to “Articles,” “Sections”
and other subdivisions refer to the corresponding Articles, Sections and other subdivisions of this Indenture, and the words “herein,”
“hereof,” “hereby,” “hereunder” and words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision hereof.
Section 1.03
Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be part of and govern this Indenture, the Trust Indenture Act provision shall control.
If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded,
the Trust Indenture Act provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Article Two
ISSUE,
DESCRIPTION, EXECUTION, REGISTRATION
AND EXCHANGE OF SECURITIES
Section 2.01
Forms Generally. The Securities of each series shall be substantially in the form (not inconsistent with this Indenture)
as shall be established in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture.
The definitive Securities
shall be printed, lithographed or engraved on steel engraved borders or, with the consent of the Trustee, may be produced in any other
manner, all as determined by the officer executing such Securities, as evidenced by his execution of such Securities.
Section 2.02
Form of Trustee’s Certificate of Authentication. The Trustee’s certificate of authentication of all Securities
shall be in substantially the following form:
“This is one of the
Securities of the series designated herein referred to in the within-mentioned Indenture.
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[__], as Trustee |
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By: |
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Authorized Signatory |
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Dated: _________________________ |
If at any time there shall
be an Authentication Agent appointed with respect to any series of Securities, then the Trustee’s Certificate of Authentication
to be borne by the Securities of each such series shall be substantially as follows:
“This is one of the
Securities of the series designated herein referred to in the within-mentioned Indenture.
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as Authentication Agent |
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By: |
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Authorized Signatory |
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Dated: _________________________ |
Section 2.03
Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities that may be authenticated and delivered
under this Indenture is unlimited.
The Securities may be issued
in one or more series. There shall be established in one or more indentures supplemental hereto, prior to the initial issuance of Securities
of any series, the following terms, which terms shall be approved by the Trustee if the Trustee’s rights or obligations are adversely
affected thereby, and thereafter such terms shall be deemed to be a part of this Indenture:
(1) the
title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);
(2) any
limit upon the aggregate principal amount of the Securities or the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the series pursuant to Section 2.06, Section 2.07, Section 2.08, Section 5.03, Section 9.04 and Article Fourteen);
(3) if
other than Dollars, the Foreign Currency or Foreign Currencies in which the Securities of the series are denominated;
(4) the
date or dates on which the principal of the Securities of the series is payable or the method of determination thereof;
(5) the
rate or rates at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue,
the interest payment dates on which such interest shall be payable, the terms and conditions of any deferral of interest and the additional
interest, if any, thereon, the right, if any, of the Company to extend the interest payment periods and the duration of the extensions
and the date or dates on which a record shall be taken for the determination of Securityholders to whom interest is payable and/or the
method by which such rate or rates or date or dates shall be determined;
(6) the
offices or agencies of the Company in the United States of America where the principal of and any interest on Securities of the series
shall be payable;
(7) the
right, if any, of the Company to redeem Securities, in whole or in part, at its option and the period or periods within which, or the
date or dates on which, the price or prices at which and any terms and conditions upon which Securities of the series may be so redeemed,
pursuant to any sinking fund or otherwise;
(8) the
obligation, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any mandatory redemption, sinking
fund or analogous provisions or at the option of a holder thereof and the price or prices at which and the period or periods within which
or the date or dates on which, and any terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid,
in whole or in part, pursuant to such obligation;
(9) if
other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which Securities of the
series shall be issuable;
(10) the
percentage of the principal amount at which the Securities will be issued, and, if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that shall be payable upon declaration of acceleration of the maturity thereof or
provable in bankruptcy;
(11) if
other than the coin, currency or currencies in which the Securities of the series are denominated, the coin, currency or currencies in
which payment of the principal of or interest on the Securities of such series shall be payable, including composite currencies or currency
units;
(12) if
the principal of or interest on the Securities of the series are to be payable, at the election of the Company or a holder thereof, in
a coin or currency other than that in which the Securities are denominated, the period or periods within which, and the terms and conditions
upon which, such election may be made;
(13) if
the amount of payments of principal of and interest on the Securities of the series may be determined with reference to an index or formula
based on a coin, currency, composite currency or currency unit other than that in which the Securities of the series are denominated,
the manner in which such amounts shall be determined;
(14) whether
and under what circumstances the Company will pay additional amounts on the Securities of the series held by a person who is not a U.S.
person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Company will have the option
to redeem the Securities of the series rather than pay such additional amounts;
(15) any
trustees, authenticating or Paying Agents, warrant agents, transfer agents or registrars with respect to the Securities of such series;
(16) any
deletion from, modification of or addition to the Events of Default or covenants with respect to the Securities of such series;
(17) if
the Securities of the series are to be convertible into or exchangeable for any other security or property of the Company, including,
without limitation, securities of another person held by the Company or its Affiliates and, if so, the terms thereof;
(18) any
collateral security, assurance, guarantee or other credit enhancement applicable to the debt securities;
(19) the
applicability, if any, of Section 11.01(C) to such series;
(20) whether
the Securities of the series shall be issued in whole or in part in the form of one or more Global Securities and, in such case, the Depositary
for such Global Security or Securities, which Depositary shall, at the time of its designation and at all times while it serves as Depositary,
be a clearing agency registered under the Exchange Act and any other applicable statute or regulation; and
(21) any
limitations on transfer or exchange of debt securities or the right to obtain registration of their transfer and the terms and amount
of any service charge required for registration of transfer or exchange; and
(22) any
other terms of the series.
All Securities of any one
series shall be substantially identical except as to denomination and except as may otherwise be provided in any such indenture supplemental
hereto. The Company may, without the consent of the Securityholders, issue additional Securities of the same series in the future ranking
equally in right of payment with, and otherwise similar in all respects to, the Securities of such series, except for any differences
in the issue price and, if applicable, the initial interest accrual date and interest payment date.
All Securities of any one
series need not be issued at the same time and may be issued from time to time without consent of any Securityholder, consistent with
the terms of this Indenture, if so provided in any indenture supplemental hereto.
Under this Indenture, the
Securities of any series and any additional Securities of such series the Company may issue in the future will be treated as a single
series for all purposes hereunder, including for purposes of determining whether the required percentage of the Securityholders of record
of the Securities of such series has given approval or consent to an amendment or waiver or joined in directing the Trustee to take certain
actions on behalf of all Securityholders of the Securities of such series.
Section 2.04
Authentication and Delivery of Securities. The Company may deliver Securities of any series executed by the Company to the
Trustee for authentication together with the applicable documents referred to below in this Section 2.04, and the Trustee
shall thereupon authenticate and deliver such Securities to or upon the written order of the Company (contained in the Company Order referred
to below in this Section) or deliver pursuant to such procedures acceptable to the Trustee and to such recipients as may be specified
from time to time by a Company Order. The maturity date, original issue date, interest rate and any other terms of the Securities of such
series shall be determined by or pursuant to such Company Order and Section 2.01, Section 2.03 and this Section 2.04.
In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the
Trustee shall be provided with (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the
first request of the Company to the Trustee to authenticate Securities of such series) and (subject to Section 6.01) shall
be fully protected in conclusively relying upon, the following enumerated documents unless and until such documents have been superseded
or revoked:
(1) a
Company Order requesting such authentication and setting forth delivery instructions if the Securities are not to be delivered to the
Company;
(2) any
executed supplemental indenture referred to in Section 2.01 and Section 2.03 by or pursuant to which the forms and terms
of the Securities were established;
(3) an
Officers’ Certificate stating that the form or forms and terms of the Securities have been established pursuant to Sections Section 2.01
and Section 2.03 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) one
or more Opinions of Counsel, or, at the option of the Company, a letter addressed to the Trustee permitting it to rely on one or more
Opinions of Counsel, substantially to the effect that:
(a) the
form or forms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b) in
the case of an underwritten offering, the terms of the Securities have been duly authorized and established in conformity with the provisions
of this Indenture, and, in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant
to a supplemental indenture in accordance with this Indenture, and when such other terms as are to be established pursuant to procedures
set forth in a Company Order shall have been established, all such terms will have been duly authorized by the Company and will have been
established in conformity with the provisions of this Indenture;
(c) such
supplemental indenture, when executed by the Company and the Trustee in accordance with the provisions of this Indenture, and subject
to any exemptions, assumptions and qualifications specified in such Opinion of Counsel, will be a valid and binding obligation of the
Company, enforceable in accordance with its terms, subject to customary exceptions;
(d) such
Securities, when executed by the Company and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered
to and duly paid for by the purchasers thereof, and subject to any exemptions, assumptions and qualifications specified in such Opinion
of Counsel, will be entitled to the benefits of this Indenture, and will be valid and binding obligations of the Company, enforceable
in accordance with their respective terms, subject to customary exceptions;
(e) all
conditions precedent to the issuance and authorization of the Securities have been complied with; and
(f) such
other matters that the Trustee may reasonably request.
Any counsel may state that
such opinions are limited to matters arising under the laws of the State of New York and the General Corporation Law of the State of Delaware.
Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the
Trustee, in which case the opinion shall state that such counsel believes it and the Trustee are entitled so to rely. Such counsel may
also state that, insofar as such opinion involves factual matters, it has relied, to the extent he deems proper, upon certificates of
officers of the Company and its Subsidiaries and certificates of public officials.
The Trustee shall have the
right to decline to authenticate and deliver any Securities under this section if the Trustee, being advised by counsel, determines that
such action may not lawfully be taken by the Company or if the Trustee in good faith shall determine that such action would expose the
Trustee to personal liability to existing Securityholders or would affect the Trustee’s own rights, duties or immunities under the
Securities, this Indenture or otherwise.
If the Company shall establish
pursuant to Section 2.03 that the Securities of a series are to be issued in the form of one or more Global Securities, then
the Company shall execute and the Trustee shall, in accordance with this Section and the Company Order with respect to such series,
authenticate and deliver one or more Global Securities that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of all of the Securities of such series issued and not yet cancelled, (ii) shall be registered in the
name of the Depositary for such Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or delivered or held pursuant to such Depositary’s instructions and (iv) shall bear a legend substantially
to the following effect:
“THIS GLOBAL NOTE IS
HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON
AS MAY BE REQUIRED PURSUANT TO Section 2.10 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT
IN PART PURSUANT TO Section 2.06 OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO Section 2.09 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF THE COMPANY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED
FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
Section 2.05
Execution of Securities; Denomination; Payment of Interest. The Securities shall be signed on behalf of the Company by the
Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, any Vice President, the Chief Financial
Officer or the Treasurer or an Assistant Treasurer of the Company, which may, but need not, be attested. Such signatures may be the manual
or facsimile signatures of the present or any future such officers. Typographical and other minor errors or defects in any such signature
shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of the
Company who shall have signed any of the Securities shall cease to be such officer before the Security so signed shall be authenticated
and delivered by the Trustee or disposed of by the Company, such Security nevertheless may be authenticated and delivered or disposed
of as though the person who signed such Security had not ceased to be such officer of the Company; and any Security may be signed on behalf
of the Company by such persons as, at the actual date of the execution of such Security, shall be the proper officers of the Company,
although at the date of the execution and delivery of this Indenture any such person was not such an officer.
Only such Securities as shall
bear thereon a certificate of authentication substantially in the form hereinbefore receipted, signed manually by an authorized signatory
of the Trustee, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has been duly authenticated
and delivered hereunder and that the holder is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been duly authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 2.09 together with a written statement stating that such Security
has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this Indenture.
The Securities of each series
shall be issuable only in registered form in denominations established as contemplated by Section 2.03 or, with respect to
the Securities of any series, if not so established, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
The Securities of each series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as
the officers of the Company executing the same may determine with the approval of the Trustee, as evidenced by the execution and authentication
thereof.
Each Security shall be dated
the date of its authentication. The Securities of each series shall bear interest, if any, from the date, and such interest shall be payable
on the dates, established as contemplated by Section 2.03.
The person in whose name any
Security of any series is registered at the close of business on any record date applicable to a particular series with respect to any
interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest payment date notwithstanding
any transfer or exchange of such Security subsequent to the record date and prior to such interest payment date, except if and to the
extent the Company shall default in the payment of the interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the persons in whose names outstanding Securities for such series are registered at the close of business
on a subsequent record date (which shall be not less than five Business Days prior to the date of payment of such defaulted interest)
established by notice sent by or on behalf of the Company to the holders of Securities not less than 15 days preceding such subsequent
record date. The term “record date” as used with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date specified as such in the terms of the Securities of such series
established as contemplated by Section 2.03, or, if no such date is so established, if such interest payment date is the first
day of a calendar month, the fifteenth day of the preceding calendar month or, if such interest payment date is the fifteenth day of a
calendar month, the first day of such calendar month, whether or not such record date is a Business Day.
Section 2.06
Exchange of Securities. Securities of any series may be exchanged for a like aggregate principal amount of Securities of
the same series in other authorized denominations. The Securities of any series to be exchanged shall be surrendered at the offices or
agencies to be maintained by the Company in accordance with the provisions of Section 3.02, and the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor the Security or Securities that the Securityholder making the exchange
shall be entitled to receive.
The Company shall keep, at
one of the offices or agencies to be maintained by the Company in accordance with the provisions of Section 3.02, a register
or registers in which, subject to such reasonable regulations as it or the Securities registrar may prescribe, the Company shall register
Securities and shall register the transfer of Securities as in this Article Two provided. Upon surrender for registration
of transfer of any Security at such office or agency, the Company shall execute and the Trustee shall authenticate and deliver in the
name of the transferee or transferees a new Security or Securities of the same series that the Securityholder making the exchange shall
be entitled to receive, for a like aggregate principal amount.
All Securities presented or
surrendered for exchange, registration of transfer, redemption or payment shall, if so required by the Company or the Trustee, be duly
endorsed by, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Trustee, duly
executed by the Securityholder or by his attorney who shall be so duly authorized in writing.
No service charge shall be
made for any exchange or registration of transfer of Securities, but the Company or the Securities registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto.
The Company shall not be required
to exchange or register a transfer of (i) any Securities of any series for a period of 15 days next preceding the first mailing of
notice of redemption of Securities of such series to be redeemed, or (ii) any Securities selected, called or being called for redemption
except, in the case of any Security where public notice has been given that such Security is to be redeemed in part, the portion thereof
not so to be redeemed.
Notwithstanding the foregoing,
any Global Security shall be exchangeable pursuant to this Section 2.06 for Securities registered in the names of persons
other than the Depositary for such Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a clearing agency registered
under the Exchange Act, and the Company fails to appoint a successor Depositary for such Global Security within 90 days after the Company
receives such notice or becomes aware of such event, (ii) the Company executes and delivers to the Trustee written instructions that
such Global Security shall be so exchangeable, or (iii) there shall have occurred and be continuing an Event of Default with respect
to the Securities. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered
in such names as the Depositary shall direct.
Except as provided in the
immediately preceding paragraph, a Global Security may not be transferred except as a whole by the Depositary with respect to such Global
Security to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or
by such Depositary or any such nominee to a successor of such Depositary or a nominee of such successor.
None of the Company, the Trustee,
any Paying Agent or the Security registrar will have any responsibility or liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Section 2.07
Temporary Securities. Pending the preparation of definitive Securities of any series, the Company may execute and the Trustee
authenticate and deliver temporary Securities of such series (printed, typewritten or otherwise reproduced) of any authorized denomination
and substantially in the form of the definitive Securities of such series, but with such omission, insertions and variations as may be
appropriate for temporary Securities of such series, all as may be determined by the Company. Temporary Securities of any series may contain
reference to any provisions of this Indenture as may be appropriate. Every such temporary Security shall be authenticated by the Trustee
upon the conditions and in substantially the same manner, and with the same effect, as the definitive Securities of such series. Without
unnecessary delay, the Company will execute and deliver to the Trustee definitive Securities of such series and thereupon any or all temporary
Securities of such series may be surrendered in exchange therefor, at the offices or agencies to be maintained by the Company in accordance
with the provisions of Section 3.02, and the Trustee shall authenticate and deliver in exchange for such temporary Securities
of such series an equal aggregate principal amount of definitive Securities of such series. Until so exchanged, the temporary Securities
of such series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated
and delivered hereunder.
Section 2.08
Mutilated, Destroyed, Lost or Stolen Securities. In case any temporary or definitive Security of any series shall become
mutilated or be destroyed, lost or stolen, the Company, in the case of any mutilated Security of any series shall, and in the case of
any destroyed, lost or stolen Security of any series in its discretion may, execute and upon its request the Trustee shall authenticate
and deliver, a new Security of the same series, maturity date, interest rate and original issue date bearing a number or other distinguishing
symbol not contemporaneously outstanding in exchange and substitution for the mutilated Security, or in lieu of and substitution for the
Security so destroyed, lost or stolen, or, if any such Security shall have matured or shall be about to mature, instead of issuing a substituted
Security, the Company may pay the same without surrender thereof except in the case of a mutilated Security.
In every case the applicant
for a substituted Security or for such payment shall furnish to the Company and to the Trustee such security or indemnity as may be required
by them to save each of them harmless from all risk, however remote, and, in every case of destruction, loss or theft, the applicant shall
also furnish to the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and of
the ownership thereof. The Trustee may authenticate any such substituted Security and deliver the same, or the Trustee or any Paying Agent
of the Company may make any such payment, upon the written request or authorization of any officer of the Company, and shall incur no
liability to anyone by reason of anything done or omitted to be done by it in good faith under the provisions of this Section 2.09.
Upon the issue of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any expenses connected therewith (including the fees and expenses of the Trustee).
Every substituted Security
issued pursuant to the provisions of this Section 2.08 in substitution for any destroyed, lost or stolen Securities shall
constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be found at
any time, and shall be entitled to all the benefits of (but shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities duly issued hereunder.
All Securities shall be held
and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights or remedies, notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
Section 2.09
Cancellation of Surrendered Securities. All Securities surrendered for the purpose of payment, redemption, exchange, substitution
or registration of transfer, shall, if surrendered to the Company or any Paying Agent or registrar, be delivered to the Trustee and the
same, together with Securities surrendered to the Trustee for cancellation, shall be promptly canceled by it, and no Securities shall
be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee shall destroy canceled
Securities and shall upon request deliver certificates of destruction thereof to the Company from time to time. If the Company shall purchase
or otherwise acquire any of the Securities, however, such purchase or acquisition shall not operate as a payment, redemption or satisfaction
of the indebtedness represented by such Securities unless and until the Company, at its option, shall deliver or surrender the same to
the Trustee for cancellation.
Section 2.10
Securities in Global Form. If Securities of or within a series are issuable in whole or in part in temporary or permanent
global form, as specified as contemplated by Section 2.03, then, notwithstanding clause (9) of Section 2.03,
any such Security shall represent such of the outstanding Securities of such series as shall be specified therein and may provide that
it shall represent the aggregate amount of outstanding Securities from time to time endorsed thereon and that the aggregate amount of
outstanding Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, or changes in the rights of holders, of outstanding Securities
represented thereby, shall be made by the Trustee in such manner and upon instructions given by such person or persons as shall be specified
therein or in the Company Order to be delivered to the Trustee pursuant to Section 2.04 or Section 2.07. Subject
to the provisions of Section 2.04 and, if applicable, Section 2.07, the Trustee shall deliver and redeliver any
Security in global form in the manner and upon instructions given by the person or persons specified therein or in the applicable Company
Order. Any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 13.05 hereof and need not be accompanied by an Opinion of Counsel.
Section 2.11
CUSIP Numbers. The Company in issuing any series of the Securities may use “CUSIP” or “ISIN” numbers
and/or other similar numbers, if then generally in use, and thereafter with respect to such series, the Trustee may use such numbers in
any notice of redemption with respect to such series; provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities of such series or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the Securities of such series, and any such redemption shall
not be affected by any defect in or omission of such numbers.
Article Three
PARTICULAR
COVENANTS OF THE COMPANY
The Company covenants as follows:
Section 3.01
Payment of Principal of (and Premium, if any ) and Interest on Securities. The Company will duly and punctually pay or cause
to be paid the principal of (and premium, if any) and interest on each series of the Securities at the respective times and places and
in the manner provided in such Securities and this Indenture. Each payment from the Company to the Trustee or to the Paying Agent shall
be accompanied by a written notice that designates the series to which such payment relates. As a condition precedent to the payment of
any interest on a Security, the Company or the Paying Agent may require the holder of such Security to furnish such evidence as will enable
the Company to determine whether it is required by law to deduct or to retain any tax or taxes from the interest so payable. An installment
of principal, premium or interest shall be considered paid on the date it is due if the Trustee or Paying Agent holds by 11:00 a.m., New
York City time, on that date money designated for and sufficient to pay the installment.
Section 3.02
Maintenance of Office or Agency for Registration of Transfer, Exchange and Payment of Securities. So long as any of the
Securities shall remain outstanding, the Company will maintain an office or agency in the continental United States, where the Securities
may be surrendered for exchange or registration of transfer as in this Indenture provided, and where notices and demands to or upon the
Company in respect of the Securities or of this Indenture may be served, and where the Securities may be presented or surrendered for
payment. The Company will give to the Trustee prompt written notice of the location of any such office or agency and of any change of
location thereof. In case the Company shall fail to maintain any such required office or agency or shall fail to give such notice of the
location or of any change in the location thereof, such surrenders, presentations and demands may be made and notices may be served at
the principal office of the Trustee, and the Company hereby appoints the Trustee its agent to receive at the aforesaid office all such
surrenders, presentations, notices and demands.
The Company may from time
to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes,
and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in the continental United States, for such purposes as stated in this Section.
The Company will give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any
such office or agency.
Section 3.03
Ap p ointment to Fill a Vacancy in the Office of Trustee. The Company, whenever necessary to avoid or fill a vacancy in
the office of Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so that there shall at all times be
a Trustee hereunder.
Section 3.04
Provision as to Paying Agent. (a) If the Company shall appoint a Paying Agent other than the Trustee, it will cause
such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 3.04,
(1) that
it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on any series of
Securities (whether such sums have been paid to it by the Company or by any other obligor on such series of Securities) in trust for the
benefit of the persons entitled thereto until such sums shall be paid to such persons or otherwise disposed of as herein provided;
(2) that
it will give the Trustee written notice of any failure by the Company (or by any other obligor on any series of Securities) to make any
payment of the principal of (and premium, if any) or interest on such series of Securities when the same shall be due and payable; and
(3) at
any time during the continuance of an Event of Default, upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
(b) The
Company will, prior to each due date of the principal of (and premium, if any) or interest on any series of Securities, deposit with the
Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the holders of such series of Securities entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee in writing of its failure so to act.
(c) If
the Company shall act as its own Paying Agent, it will, on or before each due date of the principal of (and premium, if any) or interest
on any series of Securities, set aside, segregate and hold in trust for the benefit of the persons entitled thereto, a sum sufficient
to pay such principal (and premium, if any) or interest so becoming due until such sums shall be paid to such persons or otherwise disposed
of as herein provided and will promptly notify the Trustee in writing of any such action or failure to take such action.
(d) Anything
in this Section 3.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction
and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, but only in accordance with
Article Eleven pay or cause to be paid to the Trustee or any Paying Agent all sums held in trust for any such series by it,
or any Paying Agent hereunder, as required by this Section 3.04, such sums to be held by the Trustee or such Paying Agent
upon the trusts herein contained. Upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
(e) Anything
in this Section 3.04 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 3.04
is subject to the provisions of Section 11.03 and Section 11.04.
Section 3.05
Maintenance of Corporate Existence. Subject to Article Ten, the Company will at all times do or cause to be
done all things necessary to preserve and keep in full force and effect its corporate existence and its franchise to be a corporation.
Section 3.06
Officers’ Certificate as to Default. The Company shall deliver to the Trustee within 120 days after the end of each
fiscal year of the Company ending after the date hereof an officer’s certificate (which need not comply with Section 13.05)
signed by its principal executive officer, principal financial officer, principal accounting officer, Treasurer or any Assistant Treasurer,
stating whether or not, to the best knowledge of such officer, the Company is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder)
and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
Article Four
SECURITYHOLDERS’
LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 4.01
Company to Furnish Trustee Information as to Names and Addresses to Securityholders. If and so long as the Trustee shall
not be the registrar for the Securities of any series, the Company and any other obligor on the Securities will furnish or cause to be
furnished to the Trustee a list in such form as the Trustee may reasonably require containing all information in the possession or control
of the Company, or any of its Paying Agents other than the Trustee, of the names and addresses of the Securityholders of the Securities
of such series pursuant to Section 312 of the Trust Indenture Act:
(a) semi-annually,
not more than 15 days after each record date for the payment of semi-annual interest on such Securities, as hereinabove specified, as
of such record date and not less than once every six months for non-interest bearing Securities in each year, and
(b) at
such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, that such list need not
include information received after such date.
Section 4.02
Preservation and Disclosure of Lists. (a) The Trustee shall preserve, in as current a form as is reasonably practicable,
all information as to the names and addresses of the holders of Securities (1) contained in the most recent list furnished to it
as provided in Section 4.01 and (2) received by it in the capacity of Paying Agent (if so acting) and Security registrar
(if so acting).
The Trustee may destroy any
list furnished to it as provided in Section 4.01 upon receipt of a new list so furnished.
(b) Securityholders
may communicate pursuant to Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or any or all series of the Securities.
(c) Each
and every Securityholder, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Paying Agent nor the Security registrar shall be held accountable by reason of the disclosure of any such information
as to the names and addresses of the holders of Securities in accordance with the provisions of subsection (b) of this Section 4.02,
regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under said subsection (b).
Section 4.03
Reports by the Company. To the extent any Securities of any series established under this Indenture are outstanding, the
Company shall deliver to the Trustee within 15 days after it files them with the Commission copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing as the Commission may by rules and regulations prescribe)
which the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act. The Company also
shall comply with the other provisions of Section 314(a) of the Trust Indenture Act. Reports, information and documents filed
with the Commission via the EDGAR system (or any successor system) will be deemed to be delivered to the Trustee as of the time of such
filing via EDGAR for purposes of this Section 4.03. Delivery of reports, information and documents to the Trustee under this Section 4.03
are for informational purposes only and the Trustee’s receipt of the foregoing shall not constitute constructive or actual notice
of any information contained therein or determinable from information contained therein, including the Company’s compliance with
any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on officer’s certificates).
Section 4.04
Reports by the Trustee. (a) So long as any Securities are outstanding hereunder, the Trustee shall transmit to Securityholders
such reports concerning the Trustee and its actions under this Indenture as may be required by the Trust Indenture Act at the times and
in the manner provided thereunder. The Trustee shall promptly deliver to the Company a copy of any report it delivers to holders pursuant
to this Section. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty days after each May 15
following the date of the initial issuance of Securities under this Indenture deliver to Securityholders a brief report, dated as of such
May 15, which complies with the provisions of such Section 313(a).
(b) A
copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with each stock exchange
and automated quotation system, if any, upon which any Securities are listed, with the Commission and with the Company. The Company will
notify the Trustee when any Securities are listed on any stock exchange or automated quotation system or delisted therefrom.
Article Five
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 5.01
Events of Default Defined; Acceleration of Maturity ; Waiver of Default. Except as stated otherwise in a supplemental indenture,
“Event of Default” with respect to Securities of any series, wherever used herein, means any one of the following events
which shall have occurred and be continuing:
(a) default
in the payment of any installment of interest upon any of the Securities of such series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; provided, that a valid extension of an interest payment period by the Company
in accordance with the terms of such Securities shall not constitute a failure to pay interest;
(b) default
in the payment of the principal of (and premium, if any, on) any of the Securities of such series as and when the same shall become due
and payable either at maturity, upon redemption, by declaration or otherwise;
(c) failure
on the part of the Company duly to observe or perform in any material respect any other of the covenants or agreements on the part of
the Company in the Securities of such series or contained in this Indenture (other than a covenant or agreement included in this Indenture
solely for the benefit of a series of Securities other than such series) for a period of 90 days after the date on which written notice
specifying such failure, stating that such notice is a “Notice of Default” hereunder and demanding the same to be remedied,
shall have been given to the Company by the Trustee, or to the Company and the Trustee by the holders of at least 33% in aggregate principal
amount of the Securities of such series at the time outstanding;
(d) a
court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property, or ordering the winding-up
or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days;
(e) the
Company shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or
shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of, or
taking possession by, a receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of the Company or for all
or substantially all of its property, or shall make any general assignment for the benefit of creditors; or
(f) any
other Event of Default provided in the supplemental indenture under which such series of Securities is established.
If an Event of Default described
in clause (a), (b), (c) or (f) above occurs with respect to a series of Securities and is continuing, then, and in each
and every such case, except for any series of Securities the principal of which shall have already become due and payable, either the
Trustee or the holders of not less than 33% in aggregate principal amount of the Securities of such series then outstanding hereunder,
by notice in writing to the Company (and to the Trustee if given by Securityholders), may declare the principal of all the Securities
of such series (or, if the Securities of such series are OID Securities, such portion of the principal amount as may be specified in the
terms of that series) of all Securities of such series and the interest accrued thereon, if any, to be due and payable immediately, and
upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities
contained to the contrary notwithstanding.
If an Event of Default described
in clause (d) or (e) above occurs and is continuing, then the principal amount of all the Securities then outstanding,
and the interest accrued thereon, if any, shall become and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Securityholder.
The foregoing provisions,
however, are subject to the condition that if, at any time after the principal (or, if the Securities are OID Securities, such portion
of the principal as may be specified in the terms thereof) of the Securities of any series (or of all the Securities, as the case may
be) shall have been so declared due and payable, and before any judgment or decree for the payment of the amounts due shall have been
obtained or entered as hereinafter provided,
| (A) | the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay: |
(i) all
matured installments of interest upon all the Securities of such series,
(ii) the
principal of (and premium, if any, on) all Securities of such series (or of all the Securities, as the case may be) that shall have become
due otherwise than by declaration (with interest on overdue installments of interest to the extent permitted by law, and on such principal
and premium, if any, at the rate of interest borne by the Securities or Yield to Maturity (in the case of OID Securities) applicable to
the Securities of such series (or at the respective rates of interest or Yields to Maturity of all the Securities, as the case may be)
to the date of such payment or deposit), and (iii) all amounts payable to the Trustee pursuant to Section 6.06,
and
(B) all
defaults under this Indenture, other than the nonpayment of principal of and accrued interest on Securities that shall have become due
by declaration, shall have been cured, waived or otherwise remedied as provided herein,
then and in every such case the Securityholders
of a majority in aggregate principal amount of the Securities of such series then outstanding, by written notice to the Company and to
the Trustee, may waive all defaults with respect to that series, each such series voting as a separate class and rescind and annul such
declaration and its consequences; but no such waiver of rescission and annulment shall extend to or shall affect any subsequent default,
or shall impair any right consequent thereon.
In case the Trustee shall
have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the
Company, the Trustee and the holders of the Securities of such series shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue as though no such proceedings had been taken.
Section 5.02
Payment of Securities on Default; Suit Therefor. The Company covenants that (1) in case default shall be made in the
payment of any installment of interest on any of the Securities of any series, as and when the same shall become due and payable, and
such default shall have continued for a period of 30 days or (2) in case default shall be made in the payment of the principal of
(or premium, if any, on) any of the Securities of any series when the same shall have become due and payable, whether upon maturity of
the Securities for such series or otherwise, including any sinking fund payment, then, upon demand of the Trustee, the Company will pay
to the Trustee for the benefit of the holders of the Securities of such series (and shall designate which series) the whole amount that
then shall have become due and payable on all Securities of such series for principal (and premium, if any) or interest, or both, as the
case may be, with interest on the overdue principal (and premium, if any) and installments of interest (to the extent permitted by law)
at the rate of interest or Yield to Maturity (in the case of OID Securities) borne by such series of Securities; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of collection, and such other amount due the Trustee under
Section 6.06 in respect of Securities of such series.
Until such demand is made
by the Trustee, the Company may pay the principal of (and premium, if any, on) and interest on the Securities of any series to the holders
thereof, whether or not the Securities of such series be overdue.
In case the Company shall
fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or any
other obligor upon such Securities, and collect in the manner provided by law out of the property of the Company or any other obligor
upon such Securities wherever situated the amounts adjudged or decreed to be payable.
In case there shall be pending
proceedings for the bankruptcy or for the reorganization of the Company or any other obligor upon the Securities of any series under the
Bankruptcy Code or any other applicable law or in connection with the insolvency of the Company or any other obligor upon any Securities
or in the case a receiver or trustee shall have been appointed for its property, or in case of any other judicial proceedings relative
to the Company or any other obligor upon such series of Securities or to creditors or property of the Company or such other obligor, the
Trustee, irrespective of whether the principal of such series of Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 5.02,
shall be entitled and empowered by intervention in such proceedings or otherwise:
(a) to
file and prove a claim or claims for the whole amount of principal, premium, if any, and interest (or if the Securities of any series
are OID Securities, such portion of the principal amount as may be specified in the terms of that series) owing and unpaid in respect
of the Securities of any series, and to file such other papers or documents as may be necessary or advisable in order to have the claims
of the Trust and of the Securityholders allowed in any judicial proceedings relative to the Company or any other obligor upon the Securities
of any series, its creditors, or its property;
(b) unless
prohibited by applicable law and regulations, to vote on behalf of the Securityholders of the Securities of any series in any election
of a receiver, assignee, trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings,
custodian or other person performing similar functions in respect of any such proceedings, and be a member of a creditors’ or other
similar committee; and
(c) to
collect and receive any amounts or other property payable or deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of such
holders to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly
to the holders, to pay to the Trustee any amount due it for compensation and expenses, including counsel fees incurred by it up to the
date of such distribution.
Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Securityholder any plan
of reorganization, arrangement, adjustment or composition affecting the Securities of any series or the rights of any holder thereof,
or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding, except as aforesaid in clause
(b).
All rights of action and of
asserting claims under this Indenture, or under any of the Securities of any series, may be enforced by the Trustee without the possession
of any of the Securities, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name and as trustee of an express trust, and any recovery of judgment shall be for
the ratable benefit of the holders of the Securities in respect of which such action was taken, after payment of all sums due to the Trustee
under Section 6.06 in respect of such Securities.
Section 5.03
Application of Amounts Collected by Trustee. Any amounts collected by the Trustee pursuant to Section 5.02 with
respect to any one or more series shall be applied in the order following, at the date or dates fixed by the Trustee for the distribution
of such amounts, and, in the case of the distribution of such amounts on account of principal, premium or interest, upon presentation
of the several Securities of a series in respect of which amounts have been collected, and stamping (or otherwise noting) thereon the
payment, or issuing Securities of such series in reduced principal amounts in exchange for the presented Securities of such series if
only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment
of costs and expenses applicable to such series of Securities in respect of which monies have been collected, including all amounts due
to the Trustee and each predecessor Trustee pursuant to this Indenture in respect to such series of Securities;
SECOND: To the ratable
payment of principal, premium (if any) and interest due and unpaid, if any, of the outstanding Securities of such series with interest
upon the overdue installments of principal, premium (if any) and interest (so far as permitted by law and to the extent that such interest
has been collected by the Trustee) at the rate of interest or Yield to Maturity (in the case of OID Securities) borne by the Securities
of such series without preference or priority of principal (and premium, if any) over interest, or of interest over principal (and premium,
if any), or of any installment of interest over any other installment of interest or of any Security of such series over any other Security
of such series, ratably according to the aggregate of such principal (and premium, if any) and accrued and unpaid interest; and
THIRD: To the payment
of the remainder, if any, to the Company, its successors or assigns, or to whosoever may be lawfully entitled to receive the same or as
a court of competent jurisdiction may direct.
Section 5.04
Limitation on Suits by Holders of Securities. No holder of a Security of any series shall have any right by virtue or by
availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law or in bankruptcy or otherwise,
upon or under or with respect to this Indenture or for the appointment of a receiver, liquidating custodian, trustee or similar official,
or for any other remedy hereunder, unless such holder previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinabove provided, and unless also the holders of not less than 33% in aggregate principal amount of such series
of Securities then outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity or security as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee, for 60 days after its receipt of such notice, request and
offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding and no direction inconsistent with
such written request shall have been given to the Trustee pursuant to Section 5.06; it being understood and intended, and
being expressly covenanted by the holder of every Security of a series with every other Securityholder and the Trustee, that no one or
more holders of such series of Securities shall have any right in any manner whatsoever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the holders of any other series of Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided
and for the equal, ratable and common benefit of all holders of Securities. For the protection and enforcement of the provisions of this
Section 5.04 each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
Notwithstanding any other
provisions in this Indenture, the right of any holder of any Security to receive payment of the principal of (and premium, if any) and
interest on such Security, on or after the respective due dates expressed in such Security, or to institute suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or affected without the consent of such holder.
Section 5.05
Proceedings by Trustee; Remedies Cumulative and Continuing. In case an Event of Default has occurred, has not been waived,
and is continuing, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either by suit in
equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law. All powers and remedies given by this Article Five to the Trustee
or to the Securityholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or any other powers
and remedies available to the Trustee or to the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance
or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any holder of
any of the Securities to exercise any right or power accruing upon any default occurring and continuing as aforesaid shall impair any
such right or power, or shall be construed to be a waiver of any such default or any acquiescence therein; and, subject to the provisions
of Section 5.04, every power and remedy given by this Article Five or by law to the Trustee or to the Securityholders
may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.
Section 5.06
Rights of Holders of Majority in Principal Amount of Securities to Direct Trustee and to Waive Defaults. The holders of
a majority in aggregate principal amount of the Securities of each series affected (each series voting as a separate class) at the time
outstanding (determined as provided in Section 7.04), or, if a record date is set in accordance with Section 7.05,
as of such record date, shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee by this Indenture with respect to the Securities of such series;
provided, however, that subject to the provisions of Section 6.01, the Trustee shall have the right to decline to follow any
such direction if the Trustee being advised by counsel shall determine that the action so directed may not lawfully be taken, or if the
Trustee in good faith shall, by a Responsible Officer or Officers of the Trustee, determine that the proceedings so directed would be
illegal or expose it to personal liability or be unjustly prejudicial to the Securityholders not consenting, and provided further that
nothing in this Indenture shall impair the right of the Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction by the Securityholders. Prior to the declaration of the maturity of the Securities of any
series as provided in Section 5.01(a), the holders of a majority in aggregate principal amount of the Securities of such series
at the time outstanding (each such series voting as a separate class) (determined as provided in Section 7.04 and Section 7.05)
may on behalf of the holders of all of the Securities of such series waive any past default hereunder and its consequences, except a default
in the payment of interest or premium on, or the principal of, any of the Securities. In the case of any such waiver the Company, the
Trustee and the holders of the Securities of such series shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair any right consequent hereon.
Section 5.07
Trustee to Give Notice of Defaults Known to It, But May Withhold in Certain Circumstances. The Trustee shall, within
ninety (90) days after the occurrence of a default with respect to the Securities of any series, give written notice of all defaults with
respect to that series known to a Responsible Officer to all holders of Securities of such series in the manner and to the extent provided
in Section 313(c) of the Trust Indenture Act, unless such defaults shall have been cured or waived before the sending of such
notice (the term “default” for the purpose of this Section being hereby defined to mean any event or condition
which is, or with notice or lapse of time or both would become, an Event of Default); provided, that, except in the case of default in
the payment of the principal (and premium, if any) of or interest on any of the Securities of such series the Trustee shall be protected
in withholding such notice if and so long as it in good faith determines that the withholding of such notice is in the interests of the
Securityholders of such series.
Section 5.08
Requirement of an Undertaking to Pay Costs in Certain Suits Under this Indenture or Against the Trustee. All parties to
this Indenture agree, and each holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement or any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorney’s fees, against any
party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 5.08 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder,
or group of Securityholders of any series, holding in the aggregate more than ten percent in aggregate principal amount of the Securities
of such series outstanding, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (and
premium, if any) or interest on any Security, on or after the due date expressed in such Security.
Article Six
CONCERNING
THE TRUSTEE
Section 6.01
Duties and Responsibilities of Trustee. Prior to the occurrence of an Event of Default with respect to the Securities of
a particular series and after the curing or waiving of all Events of Default which may have occurred with respect to such series, the
Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with respect to such series
of Securities. In case an Event of Default with respect to the Securities of a series has occurred and has not been cured or waived and
is known to a Responsible Officer, the Trustee shall exercise with respect to such series of Securities such of the rights and powers
vested in it by this Indenture with respect to such series of Securities, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
No provision of this Indenture
shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, provided, however, that:
(a) prior
to the occurrence of an Event of Default known to a Responsible Officer with respect to the Securities of any series and after the curing
or waiving of all such Events of Default with respect to such series that may have occurred
(1) the
duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee shall only
be liable for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in
the absence of negligence and willful misconduct on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any statement, certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but in the case of any such statement, certificates or opinions that by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations
or other facts stated therein);
(b) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction
of the holders of not less than a majority in principal amount of the Securities of all series affected (voting as a class) at the time
outstanding (determined as provided in Sections Section 7.04 and Section 7.05) relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture.
None of the provisions contained
in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or powers, if there is reasonable grounds for believing that the
repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
The provisions of this Section 6.01
are in furtherance of and subject to Section 315 of the Trust Indenture Act.
Section 6.02
Reliance on Documents, Opinions, etc. Subject to the provisions of Section 6.01:
(a) The
Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond, note or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) Any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers’ Certificate
or Company Order (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of the Company;
(c) The
Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(d) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction
of any of the Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby; but nothing herein
contained shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default (which has not been cured
or waived), to exercise such of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs;
(e) The
Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Indenture;
(f) The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document
unless (i) requested in writing so to do by the holders of not less than a majority in aggregate principal amount of the Securities
of all series affected then outstanding (treated as one class) (determined as provided in Section 7.04 and Section 7.05)or
(ii) otherwise provided in the terms of any series of Securities pursuant to Section 2.03; provided, that, if the payment
within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require security or indemnity reasonably satisfactory to it against such expenses or liabilities as a condition to proceeding;
the reasonable expenses of every such investigation shall be paid by the Company or, if paid by the Trustee or any predecessor trustee,
shall be repaid by the Company upon demand;
(g) The
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys.
The Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) The
Trustee shall not be deemed to have notice of any Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof
or unless written notice of any event which is in fact an Event of Default is received by the Trustee at its principal office and such
notice references the Securities, the Company or this Indenture;
(i) The
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other person
employed to act hereunder;
(j) The
Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized
at such time to take specified actions pursuant to this Indenture, which certificate may be signed by any person authorized to sign an
Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;
and
(k) The
Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
The permissive right of the
Trustee to do anything enumerated in this Section 6.02 shall not be construed as a duty.
Section 6.03
No Responsibility for Recitals, etc. The statements and recitals contained herein and in the Securities and in any
other document in connection with the sale of the Securities (other than the certificate of authentication of the Securities) shall be
taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of any of the Securities or of the proceeds of such Securities, or for the use or application of any
amounts paid over by the Trustee in accordance with any provision of this Indenture, or for the use or application of any amounts received
by any Paying Agent other than the Trustee.
Section 6.04
Trustee, Paying Agent or Security Registrar May Own Securities. The Trustee or any Paying Agent or Security registrar,
in its individual or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not Trustee, Paying Agent or Security registrar.
Section 6.05
Amounts Received by Trustee to be Held in Trust Without Interest. Subject to the provisions of Section 11.04,
all amounts received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent required by mandatory provision of law. The Trustee shall
be under no liability for interest on amounts received by it hereunder except such as it may agree in writing with the Company to pay
thereon. So long as no Event of Default shall have occurred and be continuing, all interest allowed on any such amounts shall be paid
from time to time upon the written order of the Company, signed by its Chief Executive Officer, President, any Executive Vice President,
any Senior Vice President, any Vice President, Chief Financial Officer, Treasurer or an Assistant Treasurer.
Section 6.06
Compensation and Expenses of Trustee. The Company agrees:
(a) to
pay to the Trustee from time to time such reasonable compensation as shall be agreed to in writing between the Company and the Trustee
for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(b) except
as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the reasonable
expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its
negligence, willful misconduct or bad faith, and the Trustee shall provide the Company reasonable notice of any expenditure not in the
ordinary course of business; and
(c) to
indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on
the part of the Trustee and arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including
the reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
When the Trustee incurs expenses
or renders services in connection with an Event of Default specified in Section 5.01(d) or Section 5.01(e), the
expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law.
The Trustee shall have a lien
prior to the Securities as to all property and funds held by it hereunder for any amount owing it or any predecessor Trustee pursuant
to this Section 6.06, except with respect to funds held in trust for the benefit of the holders of particular Securities.
The provisions of this Section 6.06
shall survive the satisfaction and discharge of this Indenture and the resignation or removal of the Trustee.
Section 6.07
Right of Trustee to Rely on Officers’ Certificate Where No Other Evidence Specifically Prescribed. Subject to the
provisions of Section 6.01 and Section 6.02, whenever in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder,
such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or willful
misconduct on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered
to the Trustee, and such Certificate, in the absence of negligence or willful misconduct on the part of the Trustee, shall be full warrant
to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
Section 6.08
Conflicting Interest of Trustee. (a) If, after an Event of Default has occurred and is continuing, the Trustee has
or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest
or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
(b) To
the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee
under this Indenture with respect to Securities of more than one series.
Section 6.09
Requirements for Eligibility of Trustee. The Trustee for each series of Securities hereunder shall at all times be a corporation
or banking association organized and doing business under the laws of the United States of America, any State thereof or the District
of Columbia, having a combined capital and surplus of at least $50,000,000, and which is authorized under such laws to exercise corporate
trust powers and is subject to supervision or examination by Federal, state or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 6.10.
The provisions of this Section 6.09 are in furtherance of and subject to Section 310(a) of the Trust Indenture Act.
Section 6.10
Resignation or Removal of Trustee. (a) The Trustee, or any Trustee hereafter appointed, may at any time resign with
respect to one or more series of Securities by giving written notice of such resignation to the Company or to the Securityholders, such
notice to the Securityholders of applicable series of Securities to be given by mailing (by first class mail) the same. Upon receiving
such notice of resignation, the Company shall promptly appoint a successor trustee with respect to the applicable series by written instrument,
in duplicate, executed by order of the Board of Directors of the Company, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within
30 days after the mailing of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least six
months may, subject to the provisions of Section 5.08, on behalf of himself and all others similarly situated, petition any
such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In
case at any time any of the following shall occur:
(1) the
Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act with respect to any series of
Securities after written request therefor by the Company or by any Securityholder who has been a bona fide holder of a Security or Securities
of such series for at least six months, or
(2) the
Trustee shall cease to be eligible in accordance with the provisions of Section 6.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder, or
(3) the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of a substantial
portion of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of a substantial portion
of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove
the Trustee with respect to the applicable series and appoint a successor trustee for such series by written instrument, in duplicate,
executed by order of the Board of Directors of the Company, one copy of which instrument shall be delivered to the Trustee so removed
and one copy to the successor trustee, or, subject to the provisions of Section 5.08, any Securityholder who has been a bona
fide holder of a Security or Securities of such series for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to
such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint
a successor trustee.
(c) The
holders of a majority in aggregate principal amount of the Securities of all series at the time outstanding voting as one class (determined
as provided in Section 7.04) may at any time remove the Trustee with respect to Securities of all series and appoint a successor
trustee with respect to securities of all series by written instrument or instruments signed by such holders or their attorneys- in-fact
duly authorized, or by the affidavits of the permanent chairman and secretary of a meeting of the Securityholders evidencing the vote
upon a resolution or resolutions submitted thereto with respect to such removal and appointment (as provided in Article Eight),
and by delivery thereof to the Trustee so removed, to the successor trustee and to the Company.
(d) Any
resignation or removal of the Trustee and appointment of any successor trustee pursuant to any of the provisions of this shall become
effective upon acceptance of appointment by the successor trustee as provided in Section 6.11.
Section 6.11
Acceptance by Successor to Trustee; Notice of Succession of a Trustee. Any successor trustee appointed as provided in Section 6.10
shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder,
and thereupon the resignation or removal of the predecessor trustee with respect to all or any particular series shall become effective
and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if originally named as Trustee herein; but, nevertheless,
on the written request of the Company or of the successor trustee, the Trustee ceasing to act shall, upon payment of any amounts then
due it pursuant to the provisions of Section 6.06, pay over to the successor trustee, subject to Section 11.04,
all monies at the time held by it hereunder with respect to such series, and execute and deliver an instrument transferring to such successor
trustee all the rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Company shall execute
any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and
powers. Any Trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such Trustee, except
funds held in trust for the benefit of the holders of particular Securities, to secure any amounts then due it pursuant to the provisions
of Section 6.06.
If a successor trustee is
appointed with respect to the Securities of one or more (but not all) series, the Company, the predecessor Trustee and each successor
trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto that shall
contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in
the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture
shall constitute such Trustees as co-trustees of the same trust and that each such Trustee shall be Trustee of a trust or trusts under
separate indentures.
No successor trustee with
respect to any series of Securities shall accept appointment as provided in this Section 6.11 unless at the time of such acceptance
such successor trustee shall be qualified under the provisions of Section 6.08 and eligible under the provisions of Section 6.09.
Upon acceptance of appointment
by a successor trustee as provided in this Section 6.11, the Company shall mail to the holders of Securities of any series
by first-class mail notice thereof. If the Company fails to mail such notice within 30 days after acceptance of appointment by the successor
trustee, the successor trustee shall, in its discretion, cause such notice to be mailed at the expense of the Company. The resigning Trustee
shall have no responsibility or liability for any action or inaction of a successor Trustee.
Section 6.12
Successor to Trustee by Merger, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation resulting from any merger or conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor of
the Trustee hereunder, provided such corporation shall be qualified under the provisions of Section 6.08 and eligible under
the provisions of Section 6.09, without the execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor
to the Trustee shall succeed to the trusts created by this Indenture and the Securities of any series shall have been authenticated but
not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee, and deliver such
Securities so authenticated; and in case at that time the Securities of any series shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee;
and in all such cases such certificates shall have the full force that it is anywhere in the Securities of such series or in this Indenture
provided that the certificate of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication
of any predecessor Trustee or authenticate Securities of any series in the name of any predecessor Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
Section 6.13
Preferential Collection of Claims Against Company. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).
Section 6.14
Appointment of Authentication Agent. As long as any Securities of a series remain outstanding, the Trustee may, by an instrument
in writing, appoint with the approval of the Company an Authentication Agent (the “Authentication Agent”) which shall
be authorized to act on behalf of the Trustee to authenticate Securities, including Securities issued upon exchange, registration of transfer,
partial redemption or pursuant to Section 2.08. Securities of each such series authenticated by such Authentication Agent
shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee.
Whenever reference is made in this Indenture to the authentication and delivery of Securities of any series by the Trustee or to the Trustee’s
Certificate of Authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authentication
Agent for such series and a Certificate of Authentication executed on behalf of the Trustee by such Authentication Agent. Each Authentication
Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, authorized under such laws to act as Authentication Agent, having a
combined capital and surplus of not less than $50,000,000 (determined as provided in Section 6.09 with respect to the Trustee)
and subject to supervision or examination by federal or state authority.
Any corporation into which
any Authentication Agent may be merged or converted, or with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which any Authentication Agent shall be a party, or any corporation succeeding to the corporate agency
business of any Authentication Agent, shall continue to be the Authentication Agent with respect to all series of Securities for which
it served as Authentication Agent without the execution or filing of any paper or any further act on the part of the Trustee or such Authentication
Agent. Any Authentication Agent may at any time, and if it shall cease to be eligible shall, resign by giving written notice of resignation
to the Trustee and to the Company.
Upon receiving such a notice
of resignation or upon such a termination, or in case at any time any Authentication Agent shall cease to be eligible in accordance with
the provisions of this Section 6.14 with respect to one or more series of Securities, the Trustee may appoint a successor
Authentication Agent which shall be acceptable to the Company, and the Trustee shall provide notice of such appointment to all holders
of Securities of such series in the manner and to the extent provided in Section 13.03. Any successor Authentication Agent
upon acceptance of its appointment hereunder shall become vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authentication Agent. The Company agrees to pay to the Authentication Agent for
such series from time to time reasonable compensation. The Authentication Agent for the Securities of any series shall have no responsibility
or liability for any action taken by it as such at the direction of the Trustee.
Section 6.02,
Section 6.03, Section 6.04, Section 6.06 and Section 7.03 shall be applicable to any Authentication Agent.
Article Seven
CONCERNING
THE SECURITYHOLDERS
Section 7.01
Evidence of Action by Securityholders. Whenever in this Indenture it is provided that the holders of a specified percentage
in aggregate principal amount of the Securities of any or all series may take any action (including the making of any demand or request,
the giving of any notice, consent, or waiver or the taking of any other action) the fact that the holders of such specified percentage,
determined as of the time such action was taken or, if a record date was set with respect thereto pursuant to Section 7.05,
as of such record date, have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor
executed by Securityholders in person or by agent or proxy appointed in writing, or (b) by the record of the holders of Securities
voting in favor thereof at any meeting of Securityholders duly called and held in accordance with the provisions of Article Eight,
or (c) by a combination of such instrument or instruments and any such record of such a meeting of Securityholders, or (d) in
the case of Securities evidenced by a Global Security, by any electronic transmission or other message, whether or not in written format,
that complies with the Depositary’s applicable procedures.
Section 7.02
Proof of Execution of Instruments and of Holding of Securities. Subject to the provisions of Section 6.01, Section 6.02
and Section 8.05, proof of the execution of any instrument by a Securityholder or his agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory
to the Trustee.
The ownership of Securities
shall be proved by the register of such Securities, or by a certificate of the registrar thereof.
The Trustee may accept such
other proof or require such additional proof of any matter referred to in this Section 7.02 as it shall deem reasonable, including
electronic or other messages transmitted by the Depositary in accordance with its applicable procedures.
The record of any Securityholders’
meeting shall be proved in the manner provided in Section 8.06.
Section 7.03
Who May be Deemed Owners of Securities. The Company, the Trustee, any Paying Agent and any Security registrar shall
deem and treat the person in whose name any Security shall be registered upon the books of the Company for such series on the applicable
record date as the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of, premium, if any, and interest
on such Security and for all other purposes; and neither the Company nor the Trustee nor any Paying Agent nor any Security registrar shall
be affected by any notice to the contrary. All such payments so made to, or upon the order of, any such holder shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for amounts payable upon any such Security.
Section 7.04
Securities Owned by Company or Controlled or Controlling Persons Disregarded for Certain Purposes. In determining whether
the holders of the requisite aggregate principal amount of Securities have concurred in any demand, direction, request, notice, consent,
waiver or other action under this Indenture, Securities that are owned by the Company or any other obligor on the Securities or by any
person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obligor
on the Securities shall be disregarded and deemed not to be outstanding for the purpose of any such determination, provided that for the
purposes of determining whether the Trustee shall be protected in relying on any such demand, direction, request, notice, consent or waiver,
only Securities that a Responsible Officer of the Trustee knows are so owned shall be so disregarded. Securities so owned that have been
pledged in good faith may be regarded as outstanding for the purposes of this Section 7.04 if the pledgee shall establish
to the reasonable satisfaction of the Trustee the pledgee’s right to vote such Securities and that the pledgee is not a person directly
or indirectly controlling or controlled by or under direct or indirect common control with the Company or any such obligor. In case of
a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
Section 7.05
Record Date for Action by Securityholders. Whenever in this Indenture it is provided that holders of a specified percentage
in aggregate principal amount of the Securities of a series may take any action (including the making of any demand or request, the giving
of any direction, notice, consent or waiver or the taking of any action), other than any action taken at a meeting of Securityholders
called pursuant to Article Eight, the Company or the holders of at least ten percent in aggregate principal amount of the
Securities of such series then outstanding, may request the Trustee to fix a record date for determining Securityholders entitled to notice
of and to take any such action. In case the Company or the holders of Securities of such series in the amount above specified shall desire
to request Securityholders of such series to take any such action and shall request the Trustee to fix a record date with respect thereto
by written notice setting forth in reasonable detail the Securityholder action to be requested, the Trustee shall promptly (but in any
event within five days of receipt of such request) fix a record date that shall be a Business Day not less than 15 nor more than 20 days
after the date on which the Trustee receives such request. If the Trustee shall fail to fix a record date as hereinabove provided, then
the Company or the holders of Securities of such series in the amount above specified may fix the same by mailing written notice thereof
(the record date so fixed to be a Business Day not less than 15 nor more than 20 days after the date on which such written notice shall
be given) to the Trustee. If a record date is fixed according to this Section 7.05, only persons shown as Securityholders
of such series on the registration books for the Company at the close of business on the record date so fixed shall be entitled to take
the requested action and the taking of any such action by the holders on the record date of the required percentage of the aggregate principal
amount of the Securities of such series shall be binding on all Securityholders of such series, provided that the taking of the requested
action by the holders on the record date of the percentage in aggregate principal amount of the Securities of such series in connection
with such action shall have been evidenced to the Trustee, as provided in Section 7.01, not later than 180 days after such
record date.
Section 7.06
Instruments Executed by Securityholders Bind Future Holders. At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 7.01, of the taking of any action by the holders of the percentage in aggregate principal
amount of the Securities of any or all series in connection with such action, any holder of a Security of such series the serial number
of which is shown by the evidence to be included in the Securities of such series the holders of which have consented to such action may,
by filing written notice with the Trustee at its principal office and upon proof of holding as provided in Section 7.02, revoke
such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security of such series and
any direction, demand, request, waiver, consent, vote or other action of the holder of any Security of such series that by any provisions
of this Indenture is required or permitted to be given shall be conclusive and binding upon such holder and upon all future holders and
owners of such Security, and of any Security issued in lieu thereof, irrespective of whether or not any notation in regard thereto is
made upon such Security. Any action taken by the holders of the percentage in aggregate principal amount of the Securities of such series
in connection with such action shall be conclusively binding as the act of such holders upon the Company, the Trustee and the holders
of all the Securities of such series.
Article Eight
SECURITYHOLDERS’
MEETINGS
Section 8.01
Purposes for Which Meetings May be Called. A meeting of holders of Securities of any or all series, as the case may
be, may be called at any time and from time to time pursuant to the provisions of this Article Eight for any of the following
purposes:
(1) to
give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of any default
or Event of Default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders of any or all
series pursuant to any of the provisions of Article Five;
(2) to
remove the Trustee and appoint a successor Trustee pursuant to the provisions of Article Six;
(3) to
consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 9.02; or
(4) to
take any other action authorized to be taken by or on behalf of the holders of the percentage in aggregate principal amount of the Securities
of any or all series under any other provisions of this Indenture or under applicable law.
Section 8.02
Manner of Calling Meetings; Record Date. The Trustee may at any time call a meeting of Securityholders of any or all series
to take any action specified in Section 8.01, to be held at such time and at such place in Atlanta, Georgia, as the Trustee
shall determine. Notice of every meeting of the Securityholders of any or all series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be mailed not less than 30 nor more than 60 days prior to
the date fixed for the meeting to such Securityholders at their registered addresses. For the purpose of determining Securityholders entitled
to notice of any meeting of Securityholders, the Trustee shall fix in advance a date as the record date for such determination, such date
to be a Business Day not more than 10 days prior to the date of the mailing of such notice as hereinabove provided. Only persons in whose
name any Security shall be registered upon the books of the Company on a record date fixed by the Trustee as aforesaid, or by the Company
or the Securityholders as in Section 8.03 provided, shall be entitled to notice of the meeting of Securityholders with respect
to which such record date was so fixed.
Section 8.03
Call of Meeting by Company or Securityholders. In case at any time the Company, pursuant to a resolution of its Board of
Directors, or the holders of at least ten percent in aggregate principal amount of the Securities then outstanding of any or all series,
as the case may be, shall have requested the Trustee to call a meeting of such Securityholders to take any action authorized in Section 8.01
by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed
notice of such meeting within twenty days after receipt of such request, then the Company or the holders of such Securities in the amount
above specified, as the case may be, may fix the record date with respect to, and determine the time and the place in Atlanta, Georgia
for, such meeting and may call such meeting to take any action authorized in Section 8.01, by mailing notice thereof as provided
in Section 8.02. The record date fixed as provided in the preceding sentence shall be set forth in a written notice to the
Trustee and shall be a Business Day not less than 15 nor more than 20 days after the date on which such notice is sent to the Trustee.
Section 8.04
Who May Attend and Vote at Meetings. To be entitled to vote at any meeting of Securityholders a person shall be (i) a
holder of one or more Securities of the series with respect to which the meeting is called or, should the meeting be called with respect
to the Securities of all series, a holder of one or more of such series, or (ii) a person appointed by an instrument in writing as
proxy by a holder of one or more Securities of the series. The only persons who shall be entitled to be present or to speak at any meeting
of Securityholders shall be the persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel. When a determination of Securityholders entitled to vote at any meeting
of Securityholders has been made as provided in this Section 8.04, such determination shall apply to any adjournment thereof.
Section 8.05
Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as
it may deem advisable for any meeting of Securityholders, in regard to proof of the holding of Securities of the series with respect to
which the meeting is called and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct
of the meeting as it shall think fit. Except as otherwise permitted or required by any such regulations, the holding of such Securities
and the appointment of any proxy shall be proved in the manner specified in Section 7.02.
The Trustee shall, by an instrument
in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Securityholders
as provided in Section 8.03, in which case the Company or the Securityholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by a vote
of the holders of a majority in principal amount of the Securities represented at the meeting and entitled to vote.
Subject to the provisions
of Section 7.04, at any meeting each Securityholder or proxy entitled to vote thereat shall be entitled to one vote for each
$1,000 principal amount of Securities held or represented by him; provided, however, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman
of the meeting shall have no right to vote other than by virtue of Securities held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other Securityholders. Any meeting of Securityholders duly called pursuant to the provisions
of Section 8.02 or Section 8.03 may be adjourned from time to time, and the meeting may be held as so adjourned without
further notice.
At any meeting of Securityholders,
the presence of persons who held, or who are acting as proxy for persons who held, an aggregate principal amount of Securities of the
series with respect to which the meeting is called on the record date for such meeting sufficient to take action on the business for the
transaction of which such meeting was called shall constitute a quorum, but, if less than a quorum is present, the persons holding or
representing a majority in aggregate principal amount of the Securities of the series with respect to which the meeting is called represented
at the meeting may adjourn such meeting with the same effect, for all intents and purposes, as though a quorum had been present.
Section 8.06
Manner of Voting at Meetings and Record to be Kept. The vote upon any resolution submitted to any meeting of Securityholders
shall be by written ballots on each of which shall be subscribed the signature of the Securityholder or proxy casting such ballot and
the identifying number or numbers of the Securities held or represented in respect of which such ballot is cast. The permanent chairman
of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Securityholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed
as provided in Section 8.02. The record shall show the identifying numbers of the Securities voting in favor of or against
any resolution. Each counterpart of such record shall be signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one of the counterparts shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee.
Any counterpart record so
signed and verified shall be conclusive evidence of the matters therein stated and shall be the record referred to in clause (b) of
Section 7.01.
Section 8.07
Exercise of Rights of Trustee and Securityholders Not to be Hindered or Delayed. Nothing in this Article Eight
contained shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Securityholders or any rights expressly
or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved
to the Trustee or to the Securityholders under any of the provisions of this Indenture or of the Securities of any or all series.
Section 8.08
Written Consent in Lieu of Meeting of Securityholders. The written authorization or consent of the requisite percentage
of Securityholders herein provided, entitled to vote at any such meeting, evidenced as provided in Article Seven and filed
with the Trustee, shall be effective in lieu of a meeting of Securityholders, with respect to any matter provided for in this Article Eight.
Article Nine
SUPPLEMENTAL
INDENTURES
Section 9.01
Purposes for Which Supplemental Indentures May be Entered into Without Consent of Securityholders. The Company, when
authorized by a resolution of its Board of Directors (which resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance with or pursuant to a Company Order), and the Trustee may
from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall comply with the provisions of
the Trust Indenture Act as then in effect) for one or more of the following purposes:
(a) to
evidence the succession of another corporation to the Company, or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Company pursuant to Article Ten;
(b) to
add to the covenants of the Company such further covenants, restrictions or conditions as its Board of Directors and the Trustee shall
consider to be for the protection of the holders of all or any series of the Securities (and, if such covenants are to be for the benefit
of less than all series of Securities stating that such covenants are expressly being included for the benefit of such series), and to
make the occurrence, or the occurrence and continuance, of a default in any of such additional covenants, restrictions or conditions an
Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided,
however, that in respect of any such additional covenant, restriction or condition such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such Event of Default or may limit the remedies available to the Trustee upon such Event of Default or may
limit the right of the holders of a majority in aggregate principal amount of the Securities of such series to waive such an Event of
Default;
(c) to
add any additional Events of Default for the benefit of the holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly
being included solely for the benefit of such series);
(d) to
add one or more guarantees for the benefit of holders of the Securities of any series;
(e) to
cure or correct any ambiguity, defect, omission or inconsistency in this Indenture;
(f) to
provide for the issuance under this Indenture of Securities, whether or not then outstanding, in coupon form (including Securities registrable
as to principal only) and to provide for exchangeability of such Securities with Securities issued hereunder in fully registered form
and to make all appropriate changes for such purpose;
(g) to
comply with the rules of any applicable Depositary;
(h) to
add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities; provided that any
such addition, change or elimination (A) shall neither (i) apply to any Security of any series created prior to the execution
of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the holder of any such
Security with respect to such provision or (B) shall become effective only when there is no Security described in clause (A)(i) outstanding;
(i) to
supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge
of any series of Securities pursuant to Section 11.01; provided that any such action shall not adversely affect the interests
of the holders of Securities of such series or any other series of Securities in any material respect;
(j) to
comply with the rules or regulations of any securities exchange or automated quotation system on which any of the Securities may
be listed or traded;
(k) to
add to, change or eliminate any of the provisions of this Indenture as shall be necessary or desirable in accordance with any amendments
to the Trust Indenture Act;
(l) to
establish the form or terms and to provide for the issuance of Securities of any series as permitted by Section 2.01 and Section 2.03;
(m) to
evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one trustee; and
(n) to
add to, change or eliminate any other provision under this Indenture; provided that such addition, change or elimination pursuant to this
clause (n) shall not adversely affect the interests of the holders of Securities of any series in any material respect.
The Trustee is hereby authorized
to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations
that may be therein contained and to accept the conveyance, transfer or assignment of any property thereunder, provided that if any such
supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, the Trustee may
in its discretion, but shall not be obligated to, enter into such supplemental indenture.
Any supplemental indenture
authorized by the provisions of this Section 9.01 may be executed by the Company and the Trustee without the consent of the
holders of any of the Securities at the time outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02
Modification of Indenture with Consent of Securityholders. With the consent (evidenced as provided in Section 7.01)
of the holders of not less than a majority in aggregate principal amount of the Securities at the time outstanding of each series affected
by such supplement (each series voting as a separate class) (determined as provided in Section 7.04), or, if a record date
is set with respect to such consent in accordance with Section 7.05, as of such record date, the Company, when authorized
by a resolution of its Board of Directors, and the Trustee may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall comply with the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the holders of the Securities of each such series; provided, however, that no such supplemental
indenture shall (i) extend the maturity of any Security, or reduce the principal amount thereof, or premium thereon, if any, or reduce
the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption thereof, or make the principal
thereof (including any amount in respect of original issue discount), or premium thereon, if any, or interest thereon payable in any coin
or currency other than that provided in the Securities or in accordance with the terms thereof, or reduce the amount of the principal
of an OID Security that would be due and payable upon an acceleration of the maturity thereof pursuant to Section 5.01, or
impair or affect the right of any Securityholder to institute suit for the payment thereof or the right of repayment if any, at the option
of the Securityholder, without the consent of the holder of each Security so affected or (ii) reduce the aforesaid percentage of
Securities of any series, the consent of the holders of which is required for any such supplemental indenture, without the consent of
the holders of all Securities of each such series so affected.
A supplemental indenture that
changes or eliminates any covenant or other provision of this Indenture that has expressly been included solely for the benefit of one
or more particular series of Securities, or that modified the rights of holders of such series with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of the holders of any other series.
Upon the request of the Company,
accompanied by a copy of a resolution of its Board of Directors certified by the Secretary or an Assistant Secretary of the Company authorizing
the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture, provided that if such supplemental
indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, the Trustee may in its discretion,
but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary
for the consent of the Securityholders under this Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution
by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section 9.02, the Company
shall mail a notice to the Securityholders of each series affected thereby, setting forth in general terms the substance of such supplemental
indenture. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
Section 9.03
Effect of Supplemental Indentures. Upon the execution of any supplemental indenture pursuant to the provisions of this Article Nine,
this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Company and the holders of Securities of each series affected
thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
Section 9.04
Securities May Bear Notation of Changes by Supplemental Indentures. Securities of any series authenticated and delivered
after the execution of any supplemental indenture affecting such series pursuant to the provisions of this Article Nine, or
after any action taken at a Securityholders’ meeting pursuant to Article Eight, may bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental indenture or as to any action taken at any such meeting. If the Company
or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Board
of Directors of the Company, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the Securities of such series then outstanding. Failure to make the
appropriate notation or issue such new Securities shall not affect the validity and effect of such supplemental indenture.
Section 9.05
Opinion of Counsel. The Trustee, subject to the provisions of Section 6.01 and Section 6.02, may rely upon,
and shall be entitled to receive, an Opinion of Counsel as conclusive evidence that any such supplemental indenture complies with the
provisions of this Article Nine.
Article Ten
CONSOLIDATION,
MERGER AND SALE
Section 10.01
Company May Consolidate, etc., on Certain Terms. The Company shall not consolidate with or merge into any other
person or transfer or lease its properties and assets substantially as an entirety to any person, and the Company shall not permit any
other person to consolidate with or merge into the Company, unless:
(1) either
the Company shall be the continuing corporation, or the successor corporation (if other than the Company) formed by such consolidation
or into which the Company is merged or to which the properties and assets of the Company substantially as an entirety are transferred
or leased is a corporation organized and existing under the laws of the United States, any state of the United States or the District
of Columbia, and such successor corporation shall expressly assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture; and
(2) immediately
after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or a Subsidiary as a
result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing.
Section 10.02
Successor Person to be Substituted. The successor person formed by such consolidation or into which the Company is merged
or to which such transfer or lease is made shall succeed to and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor person had been named as the Company herein, and thereafter the predecessor
shall be relieved of all obligations and covenants under this Indenture and the Securities and, in the event of such lease or transfer,
any such predecessor may be dissolved and liquidated; provided, however, that the predecessor shall not be relieved from the obligation
to pay the principal of, premium (if any) and interest on the Securities except in the case of a sale or transfer of all or substantially
all of its assets.
In case of any such consolidation,
merger, sale or conveyance such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be
issued as may be appropriate.
Section 10.03
Opinion of Counsel to be Given to Trustee. The Trustee, subject to the provisions of Section 6.01 and Section 6.02,
shall be provided with an Opinion of Counsel as conclusive evidence that any such consolidation, merger, lease or transfer, and any such
assumption, complies with the provisions of this Article Ten.
Article Eleven
SATISFACTION
AND DISCHARGE OF INDENTURE;
UNCLAIMED AMOUNTS
Section 11.01
Satisfaction and Discharge of Indenture.
(A) If
at any time (i) the Company shall have paid or caused to be paid the principal of and interest on all the Securities of any series
outstanding hereunder (other than Securities of such series which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 2.08) as and when the same shall have become due and payable, or (ii) the Company shall have
delivered to the Trustee for cancellation all Securities of any series theretofore authenticated (other than any Securities of such series
which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.08) or
(iii) in the case of any series of Securities where the exact amount (including the currency of payment) of principal of and interest
due on which can be determined at the time of making the deposit referred to in clause (b) below, (a) all the Securities of
such series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee
for the giving of notice of redemption, and (b) the Company shall have irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust the entire amount in (i) cash (other than amounts repaid by the Trustee or any Paying Agent to the Company
in accordance with Section 11.04), (ii) in the case of any series of Securities the payments on which may only be made
in Dollars, direct obligations of the United States of America, backed by its full faith and credit (“U.S. Government Obligations”),
maturing as to principal and interest at such times and in such amounts as will insure the availability of cash sufficient in the opinion
or based on the report of a nationally recognized firm of independent public accountants, investment bank or appraisal firm to pay at
such maturity or upon such redemption, as the case may be, or (iii) a combination thereof, sufficient, in the opinion or based on
the report of a nationally recognized firm of independent public accountants, investment bank or appraisal firm expressed in a written
certification thereof delivered to the Trustee, to pay (x) the principal and interest on all Securities of such series on each date
that such principal or interest is due and payable and any mandatory sinking fund payments on the dates on which such payments are due
and payable in accordance with the terms of this Indenture and the Securities of such series; provided, that in the case of any redemption
at a price or premium to be calculated based off the Treasury rate or similar rate, the amount deposited with the Trustee shall be sufficient
for purposes of this Indenture to the extent that such amount is equal to the price or premium calculated as of the date of the notice
of redemption, with any deficit on the date of redemption only required to be deposited with the Trustee on or prior to the date of redemption;
and if, in any such case, the Company shall also pay or cause to be paid all other sums payable hereunder by the Company with respect
to the Securities of such series, then this Indenture shall cease to be of further effect (except as to (i) rights of registration
of transfer and exchange of Securities of such Series pursuant to Section 2.06, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Securities, (iii) rights of holders of Securities to receive payments of principal thereof and
interest thereon, upon the original stated due dates therefor (but not upon acceleration), and remaining rights of the holders to receive
mandatory sinking fund payments, if any, (iv) any optional redemption rights of such series of Securities to the extent to be exercised
to make such call for redemption within one year, (v) the rights, obligations, duties and immunities of the Trustee hereunder, including
those under Section 6.06, (vi) the rights of the holders of Securities of such series as beneficiaries hereof with respect
to the property so deposited with the Trustee payable to all or any of them, and (vii) the obligations of the Company under Section 3.02)
and the Trustee, on demand of the Company accompanied by an Officers’ Certificate and an Opinion of Counsel and at the cost and
expense of the Company, shall execute proper instruments acknowledging such satisfaction of and discharging this Indenture; provided,
that the rights of holders of the Securities to receive amounts in respect of principal of and interest on the Securities held by them
shall not be delayed longer than required by then-applicable mandatory rules or policies of any securities exchange upon which the
Securities are listed. The Company agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred
and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture
or the Securities of such series.
(B) The
following provisions shall apply to the Securities of each series unless specifically otherwise provided in an indenture supplemental
hereto provided pursuant to Section 2.03. In addition to discharge of this Indenture pursuant to the next preceding paragraph,
in the case of any series of Securities the exact amounts (including the currency of payment) of principal of and interest due on which
can be determined at the time of making the deposit referred to in clause (a) below, the Company shall be deemed to have paid and
discharged the entire indebtedness on all the Securities of such a series on the date of the deposit referred to in subparagraph below,
and the provisions of this Indenture with respect to the Securities of such series shall no longer be in effect (except as to (i) rights
of registration of transfer and exchange of Securities of such series pursuant to Section 2.08 (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Securities, (iii) rights of holders of Securities to receive payments of principal thereof and
interest thereon, upon the original stated due dates therefor (but not upon acceleration), and remaining rights of the holders to receive
mandatory sinking fund payments, if any, (iv) any optional redemption rights of such series of Securities, (v) the rights, obligations,
duties and immunities of the Trustee hereunder, including those under Section 6.06, (vi) the rights of the holders of
Securities of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of
them and (vii) the obligations of the Company under Section 3.02) and the Trustee, at the expense of the Company, shall
at the Company’s request, execute proper instruments acknowledging the same, if:
(a) with
reference to this provision the Company has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds
in trust, specifically pledged as security for, and dedicated solely to, the benefit of the holders of the Securities of such series (i) cash
in an amount, or (ii) in the case of any series of Securities the payments on which may only be made in Dollars, U.S. Government
Obligations (without reinvestment), maturing as to principal and interest at such times and in such amounts as will insure the availability
of cash or (iii) a combination thereof, sufficient, in the opinion or based on the report of a nationally recognized firm of independent
public accountants, investment bank or appraisal firm expressed in a written certification thereof delivered to the Trustee, to pay (A) the
principal and interest on all Securities of such series on each date that such principal or interest is due and payable and (B) any
mandatory sinking fund payments on the dates on which such payments are due and payable in accordance with the terms of this Indenture
and the Securities of such series; provided, that before such a deposit the Company may make arrangements reasonably satisfactory to the
Trustee for the redemption of Securities at a future date or dates in accordance with Article Fourteen, which shall be given
effect in applying the foregoing; and provided, further, that in the case of any redemption at a price or premium to be calculated based
off the Treasury rate or similar rate, the amount deposited with the Trustee shall be sufficient for purposes of this Indenture to the
extent that such amount is equal to the price or premium calculated as of the date of the notice of redemption, with any deficit on the
date of redemption only required to be deposited with the Trustee on or prior to the date of redemption;
(b) no
Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to the Securities shall
have occurred and be continuing on the date of such deposit;
(c) such
deposit will not result in a breach or violation of, or constitute a default under, any agreement or instrument to which the Company is
a party or by which it is bound;
(d) the
Company has delivered to the Trustee an Opinion of Counsel based on the fact that (x) the Company has received from, or there has
been published by, the United States Internal Revenue Service a ruling or (y) since the date hereof, there has been a change in the
applicable United States Federal income tax law, in either case to the effect that, and such opinion shall confirm that, the beneficial
owners of the Securities of such series will not recognize income, gain or loss for United States Federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to United States Federal income tax on the same amount and in the same manner
and at the same times, as would have been the case if such deposit, defeasance and discharge had not occurred; and
(e) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent
provided for relating to the defeasance contemplated by this provision have been complied with.
(C) The
Company shall be released from its obligations under Section 3.05 and Section 10.01 and unless otherwise provided
for in the indenture supplemental hereto establishing such series of Securities, from all covenants and other obligations referred to
in Section 2.03(16) or Section 2.03(20) with respect to such series of Securities outstanding on and after the
date the conditions set forth below are satisfied (hereinafter, “covenant defeasance”). For this purpose, such covenant
defeasance means that, with respect to the outstanding Securities of any series, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in such Section, whether directly or indirectly by reason of any reference
elsewhere herein to such Section or by reason of any reference in such Section to any other provision herein or in any other
document and such omission to comply shall not constitute an Event of Default under Section 5.01, but the remainder of this
Indenture and such Securities shall be unaffected thereby. The following shall be the conditions to application of this Section 11.01(c):
(a) The
Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to, the benefit of the holders of the Securities of such series,
(i) cash in an amount, or (ii) in the case of any series of Securities the payments on which may only be made in Dollars, U.S.
Government Obligations maturing as to principal and interest at such times and in such amounts as will insure the availability of cash
or (iii) a combination thereof, sufficient, in the opinion or based on the report of a nationally recognized firm of independent
public accountants, investment bank or appraisal firm expressed in a written certification thereof delivered to the Trustee, to pay (A) the
principal and interest on all Securities of such series and (B) any mandatory sinking fund payments on the day on which such payments
are due and payable in accordance with the terms of this Indenture and the Securities of such series; provided, that before such a deposit
the Company may make arrangements reasonably satisfactory to the Trustee for the redemption of Securities at a future date or dates in
accordance with Article Fourteen, which shall be given effect in applying the foregoing; and provided, further, that in the
case of any redemption at a price or premium to be calculated based off the Treasury rate or similar rate, the amount deposited with the
Trustee shall be sufficient for purposes of this Indenture to the extent that such amount is equal to the price or premium calculated
as of the date of the notice of redemption, with any deficit on the date of redemption only required to be deposited with the Trustee
on or prior to the date of redemption;
(b) No
Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to the Securities shall
have occurred and be continuing on the date of such deposit;
(c) Such
covenant defeasance shall not cause the Trustee to have a conflicting interest for purposes of the Trust Indenture Act with respect to
any securities of the Company;
(d) Such
covenant defeasance shall not result in a breach or violation of, or constitute a default under any agreement or instrument to which the
Company is a party or by which it is bound;
(e) Such
covenant defeasance shall not cause any Securities then listed on any registered national securities exchange under the Exchange Act to
be delisted;
(f) The
Company shall have delivered to the Trustee an Officers’ Certificate and Opinion of Counsel to the effect that the beneficial owners
of the Securities of such series will not recognize income, gain or loss for United States Federal income tax purposes as a result of
such covenant defeasance and will be subject to United States Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not occurred; and
(g) The
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the covenant defeasance contemplated by this provision have been complied with.
Section 11.02
Application by Trustee of Funds Deposited for Payment of Securities. Subject to Section 11.04, all amounts deposited
with the Trustee pursuant to Section 11.01 shall be held in trust and applied by it to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent), to the holders of the particular Securities of such series, for
the payment or redemption of which such amounts have been deposited with the Trustee, of all sums due and to become due thereon for principal,
interest and premium, if any.
Section 11.03
Repayment of Amounts Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture with respect
to such series of Securities, all amounts then held by any Paying Agent under the provisions of this Indenture with respect to any such
series of Securities shall, upon demand of the Company or the Trustee, be paid to the Trustee and thereupon such Paying Agent shall be
released from all further liability with respect to such amounts.
Section 11.04
Repayment of Amounts Held by Trustee. Unless otherwise required by mandatory provisions of escheat or abandoned or unclaimed
property laws, any amounts deposited with the Trustee or any Paying Agent, or then held by the Company, for the payment of the principal
of, premium, if any, or interest on any Securities of any series and not applied but remaining unclaimed by the holders of Securities
for two years after the date upon which such payment shall have become due, shall be repaid to the Company by the Trustee or by such Paying
Agent on demand; or, if then held by the Company, shall be discharged from such trust; and thereupon the Trustee and such Paying Agent
or the Company as trustee shall be released from all further liability with respect to such amounts, and the holder of any of the Securities
of such series entitled to receive such payment shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property laws, thereafter look only to the Company for the payment thereof; provided however, that the Trustee or Paying
Agent, before being required to make any such payment, may at the expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of general circulation in New York City, or cause to be mailed
to each Securityholder of such series, notice that such money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 11.05
Indemnity for U.S. Government Obligations. The Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 11.01 or the principal
and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the holders of
outstanding Securities; provided that the Trustee shall be entitled to charge any such tax, fee or other charge to such holder’s
account.
Article Twelve
IMMUNITY
OF INCORPORATORS, SHAREHOLDERS,
OFFICERS AND DIRECTORS
Section 12.01
Incorporators, Shareholders, Officers and Directors Exempt from Individual Liability. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof shall be had
against any incorporator, shareholder, officer or director, as such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company or such successor corporation, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred
by, the incorporators, shareholders, officers or directors, as such, past, present or future, of the Company or of any successor corporation,
or any of them, because of the reason of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom; and that any and all such personal liability of every name
and nature, either at common law or in equity or by constitution or statute, of and any and all such rights and claims against, every
such incorporator, shareholder, officer or director, as such, because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom
are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue
of such Securities.
Article Thirteen
MISCELLANEOUS
PROVISIONS
Section 13.01
Successors and Assigns of Company Bound by Indenture. All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not.
Section 13.02
Acts of Board, Committee or Officer of Successor Entity Valid. Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with
like force and effect by the like board, committee or officer of any corporation that shall at the time be the lawful sole successor of
the Company.
Section 13.03
Required Notices or Demands May be Served by Mail; Waiver.
Any request, demand, authorization,
direction, notice, consent, waiver or other action of Securityholders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with
(a) the
Trustee by any holder or by the Company shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and delivered or sent to the Trustee, Attn: [__]by (ii) facsimile at [__] followed by telephonic confirmation at [__]
or (iii) first-class mail at the address below or any other address previously furnished in writing to the Company by the Trustee:
[__]
(b) the
Company by the Trustee or by any holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and delivered or sent to Wheels Up Experience Inc., Attn: [__], (i) facsimile at [__] followed by telephonic confirmation
at [__] or (ii) first-class mail at the address below or any other address previously furnished in writing to the Trustee by the
Company:
Wheels Up Experience Inc.
2135 American Way
Chamblee, Georgia 30341
Attention: [__]
In respect of this Indenture,
the Trustee shall not have any duty or obligation to verify or confirm that the person sending instructions, directions, reports, notices
or other communications or information by electronic transmission is, in fact, a person authorized to give such instructions, directions,
reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the
Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of
such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information; provided
such losses, liabilities, costs or expenses have not arisen from the fraud, gross negligence or willful misconduct of the Trustee. Each
other party agrees to assume all risks arising out of the use of electronic methods to submit instructions, directions, reports, notices
or other communications or information to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions,
notices, reports or other communications or information, and the risk of interception and misuse by third parties.
Where this Indenture or any
Security provides for notice to Securityholders of any event, such notice shall be deemed sufficiently given (unless otherwise herein
or in such Security expressly provided) if in writing and mailed, first-class postage prepaid, to each Securityholder affected by such
event, at his address as it appears in the Security register, not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Securityholders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Securityholder shall affect the sufficiency of such notice with respect
to other Securityholders or the validity of the proceedings to which such notice relates.
Notwithstanding any other
provision of this Indenture or any Security of any series other than a provision that expressly states that this paragraph is not applicable
to the Securities of such series, when this Indenture or any Security provides for notice of any event (including any notice of redemption)
to a holder of Securities in global form (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary
for such Security (or its designee) pursuant to the customary procedures of such Depositary.
In case, by reason of the
suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Company or Securityholders when
such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory
to the Trustee shall be deemed to be a sufficient giving of such notice.
Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the
event or action relating thereto, and such waiver shall be the equivalent of such notice. Waivers of notice by Securityholders shall be
filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 13.04
Governing Law; WAIVER OF JURY TRIAL. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS
INDENTURE AND EACH SECURITY WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE
LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE,
ANY SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 13.05
Evidence of Compliance with Conditions Precedent. Upon any demand or application by the Company to the Trustee to take any
action under any of the provisions as of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate stating
that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, and an
Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the
case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
Each certificate or opinion
provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this
Indenture shall include (1) a statement that the person making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such person, he has made such examination or investigation
as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
In any case where several
matters are required to be certified by, or covered by an opinion of, any specified person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such person, or that they be so certified or covered by only one document, but
one such person may certify or give an opinion with respect to some matters and one or more other such persons as to other matters, and
any such person may certify or give an opinion as to such matters in one or several documents.
Any certificate, statement
or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations
by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters, on information that is in the
possession of the Company, upon the certificate, statement or opinion of or representations by an officer or officers of the Company,
unless such counsel knows that the certificate, statement or opinion or representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement
or opinion of an officer of the Company or of counsel may be based upon a certificate, report or opinion of or representations by an accountant,
firm of accountants, investment bank or appraisal firm, unless such officer or counsel, as the case may be, knows that the certificate,
report or opinion of or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid
are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Where any person is required
to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.
Section 13.06
Payments Due on Saturdays, Sundays, and Holidays. In any case where the date of payment of interest on or principal of the
Securities of any series, or the date fixed for redemption or repayment of any such Security, shall not be a Business Day, then payment
of interest or principal (and premium, if any) need not be made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the date of payment or the date fixed for redemption, and no interest shall accrue for the period
after such date.
Section 13.07
Provisions Required by Trust Indenture Act to Control. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with duties imposed by, or with another provision (an “incorporated provision”) included in this Indenture
by operation of Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed duties or incorporated provision shall control.
Section 13.08
Provisions of this Indenture and Security for the Sole Benefit of the Parties and the Securityholders. Nothing in this Indenture
or in the Securities, expressed or implied, shall give or be construed to give any person, firm or corporation, other than the parties
hereto and their successors and the holders of the Securities, any legal or equitable right, remedy or claim under or in respect of this
Indenture, or under any covenant, condition or provision herein contained; all its covenants, conditions and provisions being for the
sole benefit of the parties hereto and their successors and the holders of the Securities.
Section 13.09
Indenture May be Executed in Counterparts. This Indenture may be executed in any number of counterparts, each of which
shall be an original; but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this
Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture
as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted
by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 13.10
Article and Section Headings. The Article and Section heading references herein and in the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 13.11
Securities In a Foreign Currency. Unless otherwise specified in a supplemental indenture delivered pursuant to Section 2.03
with respect to a particular series of Securities, whenever for purposes of this Indenture any action may be taken by the Securityholders
of a specified percentage in aggregate principal amount of Securities of all series or all series affected by a particular action at the
time outstanding and, at such time, there are outstanding Securities of any series which are denominated in a Foreign Currency, then the
principal amount of Securities of such series which shall be deemed to be outstanding for the purpose of taking such action shall be that
amount of Dollars that could be obtained for such amount at the Market Exchange Rate. For purposes of this Section 13.11,
“Market Exchange Rate” shall mean the noon Dollar buying rate in The City of New York for cable transfers of such currency
or currencies as published by the Federal Reserve Bank of New York as of the most recent available date. If such Market Exchange Rate
is not available for any reason with respect to such currency, the Paying Agent shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New York or quotations from one or more major banks in The City of New York
or in the country of issue of the currency in question, which for purposes of the euro shall be any member state of the European Union
that has adopted the euro, as the Paying Agent shall deem appropriate. The provisions of this paragraph shall apply in determining the
equivalent principal amount in respect of Securities of a series denominated in a currency other than Dollars in connection with any action
taken by holders of Securities pursuant to the terms of this Indenture.
Section 13.12
Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes,
work stoppages, accidents, 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; it being understood that
the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as
soon as practicable under the circumstances.
Section 13.13
U.S.A. Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the
Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain,
verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the
Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the
Trustee to satisfy the requirements of the U.S.A. Patriot Act.
Section 13.14
Severability. If any provision hereof shall be held to be invalid, illegal or unenforceable under applicable law, then the
remaining provisions hereof shall be construed as though such invalid, illegal or unenforceable provision were not contained herein.
Article Fourteen
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 14.01
Applicability of Article. The provisions of this Article shall be applicable to the Securities of any series that are
redeemable before their maturity or to any sinking fund for the retirement of Securities of a series, in either case as specified as contemplated
by Section 2.03 for Securities of such series.
Section 14.02
Notice of Redemption; Partial Redemptions. Notice of redemption to the holders of Securities of any series to be redeemed
as a whole or in part shall be given by mailing notice of such redemption by first class mail, postage prepaid, at least 15 days and not
more than 60 days prior to the date fixed for redemption to such holders of Securities of such series at their last addresses as they
shall appear upon the Security register or registers. Any notice that is mailed in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the holder receives the notice. Failure to give notice by mail, or any defect in the notice to
the holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings
for the redemption of any other Security of such series.
The notice of redemption to
each such holder shall identify the Securities to be redeemed (including CUSIP number(s)) and specify the principal amount of each Security
of such series held by such holder to be redeemed, the date fixed for redemption, the redemption price (or the method of calculating the
redemption price), the place or places of payment, that payment will be made upon presentation and surrender of such Securities, that
such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in said notice and that on and after said date interest thereon or on the portions thereof
to be redeemed will cease to accrue. In case any Security of a series is to be redeemed in part only the notice of redemption shall state
the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender
of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of
Securities of any series to be redeemed at the option of the Company shall be given by the Company or, at the Company’s request
at least five (5) Business Days prior to the date the notice must be mailed to Securityholders (unless the Trustee otherwise agrees
to a shorter period) by the Trustee for such series in the name and at the expense of the Company.
No later than 11:00 a.m.,
New York City time, on the redemption date specified in the notice of redemption given as provided in this Section, the Company will deposit
with the Trustee or with one or more Paying Agents (or, if the Company is acting as its own Paying Agent, set aside, segregate and hold
in trust as provided in Section 3.04) an amount of money sufficient to redeem on the redemption date all the Securities of
such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption.
If less than all the outstanding Securities of a series are to be redeemed, the Company will deliver to the Trustee at least 70 days (or
such shorter period acceptable to the Trustee) prior to the date fixed for redemption an Officers’ Certificate stating the aggregate
principal amount of Securities to be redeemed.
If less than all the Securities
of a series are to be redeemed, the Trustee shall select, in such manner as it shall deem appropriate and fair in accordance with the
procedures of the Depositary, in its sole discretion, Securities of such series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum authorized denomination for Securities of such series or any integral multiple thereof.
The Trustee shall promptly notify the Company in writing of the Securities of such series selected for redemption and, in the case of
any Securities of such series selected for partial redemption, the principal amount of each such Security to be redeemed. For all purposes
of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of the Securities of any series shall
relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which
has been or is to be redeemed.
Section 14.03
Payment of Securities Called for Redemption. If notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on the date and at the place or places stated in such notice
at the applicable redemption price, together with interest accrued to the date fixed for redemption, and on and after said date (unless
the Company shall default in the payment of such Securities at the redemption price, together with interest accrued to said date) interest
on the Securities or portions of Securities so called for redemption shall cease to accrue and, except as provided in Section 6.05
and Section 11.04, such Securities shall cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the holders thereof shall have no right in respect of such Securities except the right to receive
the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at
a place of payment specified in said notice, said Securities or the specified portions thereof shall be paid and redeemed by the Company
at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided that any semiannual
payment of interest becoming due on the date fixed for redemption shall be payable to the holders of such Securities registered as such
on the relevant record date subject to the terms and provisions of Section 2.03 hereof.
If any Security called for
redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest
from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an OID Security) borne by the Security.
Upon presentation of any Security
redeemed in part only, the Company shall execute and the Trustee shall authenticate and deliver to or on the order of the holder thereof,
at the expense of the Company, a new Security or Securities of such series, of authorized denominations, in principal amount equal to
the unredeemed portion of the Security so presented.
Section 14.04
Exclusion of Certain Securities from Eligibility for Selection for Redemption. Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and certificate number in a written statement signed by an authorized
officer of the Company and delivered to the Trustee at least 10 (or such lesser number as the Trustee may permit) days prior to the last
date on which notice of redemption may be given as being owned by, and not pledged or hypothecated by, either (i) the Company or
(ii) an Affiliate specifically identified in such written statement.
Section 14.05
Mandatory and Optional Sinking Funds. The minimum amount of any sinking fund payment provided for by the terms of Securities
of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum
amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment.”
The last date on which a sinking fund payment may be made in each year is herein referred to as the “sinking fund payment date.”
In lieu of making all or any
part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Company may at its option (i) deliver
to the Trustee Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory
sinking fund) by the Company or receive credit for Securities of such series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by the Company and delivered to the Trustee for cancellation pursuant to Section 2.09, (ii) receive
credit for optional sinking fund payments (not previously so credited) made pursuant to this Section, or (iii) receive credit for
Securities of such series (not previously so credited) redeemed by the Company through any optional redemption provisions contained in
the terms of such Securities. Securities so delivered or credited shall be received or credited by the Trustee at the sinking fund redemption
price specified in such Securities.
On or before the sixtieth
day (or such later day, no later than the twentieth, as the Trustee may permit) next preceding each sinking fund payment date for any
series, the Company will deliver to the Trustee a written statement (which need not contain the statements required by Section 13.05)
signed by an authorized officer of the Company (i) specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of Securities of such series, (ii) stating that none of the Securities
of such series has theretofore been so credited, (iii) stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured) and are continuing and (iv) stating whether or not the
Company intends to exercise its right to make an optional sinking fund payment with respect to such series, and, if so, specifying the
amount of such optional sinking fund payment that the Company intends to pay on or before the next succeeding sinking fund payment date.
Any Securities of such series to be credited and required to be delivered to the Trustee in order for the Company to be entitled to credit
therefor as aforesaid that have not theretofore been delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.09
to the Trustee with such written statement (or reasonably promptly thereafter if acceptable to the Trustee). Such written statement shall
be irrevocable and upon its receipt by the Trustee the Company shall become unconditionally obligated to make all the cash payments therein
referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Company, on or before any such sixtieth
day (or such later day as the Trustee may have permitted), to deliver such written statement and Securities specified in this paragraph,
if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Company (i) that
the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash
without the option to deliver or credit Securities of such series in respect thereof and (ii) that the Company will make no optional
sinking fund payment with respect to such series as provided in this Section.
If the sinking fund payment
or payments (mandatory or optional or both) made in cash plus any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 or the equivalent thereof in any Foreign Currency) or a lesser sum in Dollars (or the equivalent thereof in any Foreign
Currency) with respect to the Securities of any particular series, such cash shall be applied on the next succeeding sinking fund payment
date to the redemption of Securities of such series at the sinking fund redemption price together with accrued interest to the date fixed
for redemption. If such amount shall be $50,000 (or the equivalent thereof in any Foreign Currency) or less and the Company makes no such
request then it shall be carried over until a sum in excess of $50,000 (or the equivalent thereof in any Foreign Currency) is available.
The Trustee shall select, in the manner provided in Section 14.02, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as nearly as may be, and shall (if requested in writing by the Company)
inform the Company or an entity known by the Trustee to be an Affiliate, as shown by the Security register or registers, and not known
to the Trustee to have been pledged or hypothecated by the Company or any such entity or (ii) identified in a written statement delivered
to the Trustee pursuant to Section 14.04 as being owned by, and not pledged or hypothecated by, the Company or an Affiliate
shall be excluded from Securities of such series eligible for selection for redemption. The Trustee, in the name and at the expense of
the Company (or the Company, if it shall so request the Trustee in writing) shall cause notice of redemption of the Securities of such
series to be given in substantially the manner provided in Section 14.02 (and with the effect provided in Section 14.03)
for the redemption of Securities of such series in part at the option of the Company. The amount of any sinking fund payments not so applied
or allocated to the redemption of Securities of such series shall be added to the next cash sinking fund payment and, together with such
payment, shall be applied in accordance with the provisions of this Section 14.05. Any and all sinking fund amounts held on
the stated maturity date of the Securities of any particular series (or earlier, if such maturity is accelerated), that are not held for
the payment or redemption of particular Securities of such series shall be applied, together with other amounts if necessary, sufficient
for the purpose, to the payment of the principal of, and interest on, the Securities of such series at maturity.
The Trustee shall not redeem
or cause to be redeemed any Securities of a series with sinking fund amounts or mail any notice of redemption of Securities for such series
by operation of the sinking funds during the continuance of a default in payment of interest on such Securities or of any Event of Default
except that, where the giving of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or
cause to be redeemed such Securities, provided that it shall have received from the Company a sum sufficient for such redemption. Except
as aforesaid, any amounts in the sinking fund for such series at the time when any such default or Event of Default shall occur, and any
amounts thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default, be deemed to have been
collected under Article Five and held for the payment of all such Securities. In case such Event of Default shall have been
waived as provided in Article Five or the default cured on or before the sixtieth day preceding the sinking fund payment date
in any year, such amounts shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section to
the redemption of such Securities.
(Signature Page Follows; Remainder of Page Intentionally
Left Blank)
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the date first written above.
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WHEELS UP EXPERIENCE INC. |
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By: |
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Title: |
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[__] |
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By: |
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Title: |
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[Signature
Page to Wheels Up Experience Inc. Indenture dated as of [__]]
Exhibit 5.1
December 27, 2024
Wheels Up Experience Inc.
2135 American Way
Chamblee, Georgia
(212) 257-5252
Re: Wheels Up Experience Inc. Registration
Statement on Form S-3
Ladies and Gentlemen:
We
have acted as counsel to Wheels Up Experience Inc., a Delaware corporation (the “Corporation”), in connection with
the Registration Statement on Form S-3 (the “Registration Statement”) filed by the Corporation with the Securities
and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”),
relating to the sale of an aggregate of up to $400,000,000 of the following securities, in one or more series or classes, separately or
together: (i) shares of the Corporation’s Class A common stock, par value $0.0001 per share (“Common Stock”);
(ii) shares of the Corporation’s Preferred Stock, par value $0.0001 per share (“Preferred Stock”); (iii) debt
securities in one or more series (“Debt Securities”), to be issued under an indenture (the “Indenture”)
between the Corporation, as issuer and a trustee chosen by the Corporation (“Trustee”) and qualified to act as such
under the Trust Indenture Act of 1939, as amended; (iv) warrants to purchase Common Stock or Preferred Stock (together, the “Warrants”);
and (v) units consisting of two or more securities registered under the Registration Statement (“Units” and collectively
with the Common Stock, Preferred Stock, Debt Securities and Warrants, the “Securities”). The Securities may be issued
and sold or delivered from time to time for an aggregate initial offering price not to exceed $400,000,000 or the equivalent thereof in
one or more foreign currencies or composite currencies.
Any
Debt Securities and any guarantees thereof offered for sale under the Registration Statement will be issued under the Indenture between
the Corporation and Trustee.
Any
Warrants offered for sale under the Registration Statement will be issued pursuant to one or more Warrant Agreements (each, a “Warrant
Agreement”) between the Corporation and a warrant agent named therein.
Any
Units offered for sale under the Registration Statement will be issued pursuant to one or more Unit Agreements (each, a “Unit
Agreement”) between the Corporation and a unit agent named therein (a “Unit Agent”).
The
Indenture, the Warrant Agreements, and the Unit Agreements are hereinafter referred to collectively as the “Securities Agreements.”
We
have examined the Registration Statement and the form of the Indenture, each of which is an exhibit to the Registration Statement. In
addition, we have examined, and have relied as to matters of fact upon, originals, or duplicates or certified or conformed copies, of
such records, agreements, documents and other instruments and such certificates or comparable documents of public officials and of officers
and representatives of the Corporation and have made such other investigations as we have deemed relevant and necessary in connection
with the opinions hereinafter set forth.
In
rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates
or certified or conformed copies, and the authenticity of the originals of such latter documents. We also have assumed that, at the time
of execution, authentication, issuance and delivery of any of the Securities, the applicable Securities Agreement will be the valid and
legally binding obligation of each party thereto other than the Corporation. We also have assumed that, with respect to the issuance of
any shares of Common Stock or Preferred Stock, the amount of valid consideration paid in respect of such shares will equal or exceed the
par value of such shares.
In
rendering the opinions set forth below, we have assumed further that, at the time of execution, authentication, issuance and delivery,
as applicable, of each of the applicable Securities Agreements and Securities, (1) the Corporation will be validly existing and in
good standing under the law of the jurisdiction in which it is organized and such Securities Agreement will have been duly authorized,
executed and delivered by the Corporation in accordance with its organizational documents and the law of the jurisdiction in which it
is organized, (2) the execution, delivery, issuance and performance, as applicable, by the Corporation of such Securities Agreement
and such Securities will not constitute a breach or violation of its organizational documents or violate the law of the jurisdiction in
which it is organized or any other jurisdiction (except that no such assumption is made with respect to the law of the State of New York
or the Delaware General Corporation Law, assuming there shall not have been any change in such law affecting the validity or enforceability
of such Securities Agreement and such Securities) and (3) the execution, delivery, issuance and performance, as applicable, by the
Corporation of such Securities Agreement and such Securities (a) will not constitute a breach or default under any agreement or instrument
which is binding upon the Corporation and (b) will comply with all applicable regulatory requirements.
Based
upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:
| 1. | With respect to the Common Stock, assuming (a) the taking
of all necessary corporate action to authorize and approve the issuance of the Common Stock and the terms of the offering thereof so
as not to violate any applicable law or agreement or instrument then binding on the Corporation and (b) due issuance and delivery
of the Common Stock, upon payment therefor in accordance with the applicable definitive underwriting, purchase or similar agreement approved
by the Board of Directors of the Corporation or a duly authorized committee thereof (the “Board”) of the Corporation
and otherwise in accordance with the provisions of such agreement, the Corporation’s certificate of incorporation, the Corporation’s
bylaws and the Delaware General Corporation Law, the Common Stock will be validly issued, fully paid and nonassessable. |
| 2. | With respect to the Preferred Stock, assuming (a) the
taking of all necessary corporate action to authorize and approve the issuance and terms of the Preferred Stock and the terms of the
offering thereof so as not to violate any applicable law or agreement or instrument then binding on the Corporation, (b) due filing
of the applicable definitive certificate of designations with respect to such Preferred Stock and (c) due issuance and delivery
of the Preferred Stock, upon payment therefor in accordance with the applicable definitive underwriting, purchase or similar agreement
approved by the Board and otherwise in accordance with the provisions of such agreement, the Corporation’s certificate of incorporation,
the Corporation’s bylaws and the Delaware General Corporation Law, the Preferred Stock will be validly issued, fully paid and nonassessable. |
| 3. | With respect to the Debt Securities, assuming (a) the
taking of all necessary corporate action by the Board or duly authorized officers of the Corporation (such Board or authorized officers
being referred to herein as the “Corporation Authorizing Party”) to authorize and approve the issuance and terms of
any Debt Securities and the terms of the offering thereof so as not to violate any applicable law or agreement or instrument then binding
on the Corporation, and (b) the due execution, authentication, issuance and delivery of such Debt Securities, upon payment therefor
in accordance with the applicable definitive underwriting, purchase or similar agreement approved by the Corporation Authorizing Party
and otherwise in accordance with the provisions of such agreement and the Indenture, such Debt Securities will constitute valid and legally
binding obligations of the Corporation enforceable against the Corporation in accordance with their terms. |
| 4. | With respect to the Warrants, assuming (a) the taking
of all necessary corporate action by the applicable Corporation Authorizing Party to authorize and approve the issuance and terms of
any Warrants and the terms of the offering thereof so as not to violate any applicable law or agreement or instrument then binding on
the Corporation and (b) the due execution, countersignature, issuance and delivery of such Warrants, upon payment therefor in accordance
with the applicable definitive underwriting, purchase or similar agreement approved by the applicable Corporation Authorizing Party and
otherwise in accordance with the provisions of such agreement and the applicable definitive Warrant Agreement, such Warrants will constitute
valid and legally binding obligations of the Corporation enforceable against the Corporation in accordance with their terms. |
| 5. | With respect to the Units, assuming (a) the taking of
all necessary corporate action by the applicable Corporation Authorizing Party to authorize and approve the issuance and delivery to
the Unit Agent of the Securities that are the components of any Units, the issuance and terms of such Units and the terms of the offering
thereof so as not to violate any applicable law or agreement or instrument then binding on the Corporation, (b) any Common Stock
or Preferred Stock that are components of such Units are or will be, as applicable, validly issued, fully paid and nonassessable and
the Debt Securities, or Warrants that are components of such Units are valid and legally binding obligations of the Corporation and (c) the
due execution, authentication, issuance and delivery, as applicable, of such Units and the Securities that are the components of such
Units, in each case upon payment therefor in accordance with the applicable definitive underwriting, purchase or similar agreement approved
by the applicable Corporation Authorizing Party and otherwise in accordance with the provisions of such agreement, the applicable definitive
Securities Agreements, the Corporation’s certificate of incorporation, the Corporation’s bylaws and the Delaware General
Corporation Law, such Units will constitute valid and legally binding obligations of the Corporation enforceable against the Corporation
in accordance with their terms. |
Our
opinions set forth in paragraphs 3 through 5 above are subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable
principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
In addition, we express no opinion as to the validity, legally binding effect or enforceability of the provisions of the Indenture relating
to the separability of provisions of the Indenture.
This
opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
We
do not express any opinion herein concerning any law other than the law of the State of New York and the Delaware General Corporation
Law.
This
opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely
upon it pursuant to the applicable provisions of the Securities Act. This opinion letter is limited to the matters stated herein, and
no opinion may be implied or inferred beyond the matters expressly stated in this opinion letter. This opinion letter is given as of the
date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes
in the law, including judicial or administrative interpretations thereof, that occur which could affect the opinions contained herein.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to the use of our name under
the caption “Legal Matters” in the prospectus included in the Registration Statement.
| |
Very truly yours, |
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/s/ Cozen O’Connor P.C. |
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Cozen O’Connor P.C. |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We have issued our report dated March 7, 2024,
with respect to the consolidated financial statements of Wheels Up Experience Inc. included in the Annual Report on Form 10-K
for the year ended December 31, 2023, which are incorporated by reference in this Registration Statement. We consent to the
incorporation by reference of the aforementioned report in this Registration Statement, and to the use of our name as it appears under
the caption “Experts.”
/s/ GRANT THORNTON LLP
New York, New York
December 27, 2024
Exhibit 99.1
WHEELS UP EXPERIENCE INC.
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL
STATEMETNS
On September 30, 2023
(the “Closing Date”), Wheels Up Partners Holdings LLC, a Delaware limited liability company (“WUP”) and a direct
subsidiary of Wheels Up Experience Inc., a Delaware corporation (the “Company” or “Wheels Up”), completed the
disposition of 100% of the issued and outstanding equity interests of Circadian Aviation LLC, a Delaware limited liability company (“Circadian”)
and a direct subsidiary of WUP (such disposition, the “Circadian Sale”), pursuant to an Equity Purchase Agreement, dated as
of the Closing Date (the “Purchase Agreement”), by and between WUP and Executive AirShare LLC (the “Purchaser”).
Concurrently with entering into the Purchase Agreement: (i) WUP entered into a transition services agreement with Circadian, pursuant
to which WUP will provide Circadian certain specified services on a temporary basis; (ii) Wheels Up Partners LLC, an indirect subsidiary
of the Company (“WUP LLC”), entered into a master operating agreement with Circadian, pursuant to which Circadian will
conduct certain on-demand charter operations for certain of WUP LLC’s owned aircraft after the Closing Date while such aircraft
are transitioned from a U.S. Federal Aviation Administration (“FAA”) operating certificate held by Circadian to the Company’s
subsidiaries, and WUP LLC will provide certain maintenance, pilots services, management and other related services for WUP LLC’s
owned aircraft during the transition period; and (iii) certain of the Company’s subsidiaries entered into fleet management
agreements with Circadian, pursuant to which Circadian will provide certain maintenance, pilots services, management and other related
services for managed aircraft after the Closing Date while they are transitioned from a FAA operating certificate held by the applicable
Company subsidiary to Circadian. The Circadian Sale, when taken together with certain post-closing agreements and covenants, including
those in the preceding sentence, resulted in the disposition of the Company’s non-core aircraft management business (the “Aircraft
Management Business” and such transactions, collectively the “Divestiture”).
As of the Closing Date, the
fair value of the aggregate consideration transferred was $19.1 million and was subject to a post-closing final working capital adjustment
under the terms of the Purchase Agreement. The $19.1 million of consideration was comprised of $13.2 million of cash received
on the Closing Date, contingent consideration with a fair value of $4.8 million, an escrow receivable of $0.6 million and a non-contingent
consideration receivable of $0.5 million. The fair value of the contingent consideration for the Divestiture was deemed to be the approximate
contract value as of the Closing Date.
The Company determined that
the Divestiture is considered a disposition of a significant business under Rule 1-02(w) of Regulation S-X and does not
meet the criteria requiring discontinued operations presentation in accordance with accounting principles generally accepted in the United
States of America. The unaudited pro forma consolidated financial statements are based on the historical consolidated financial statements
of the Company, and in the opinion of management, all adjustments and disclosures have been prepared in accordance with Article 11
of Regulation S-X. All adjustments shown are transaction accounting adjustments and do not reflect the potential uses of proceeds,
synergies, and or dis-synergies that may be derived in future periods.
The following unaudited pro
forma consolidated statement of operations for the year ended December 31, 2023, have been prepared as if the Divestiture occurred
on January 1, 2022, in that it reflects the removal of the Aircraft Management Business for the full period presented. Accordingly,
the following unaudited pro forma consolidated statement of operations for the year ended December 31, 2023 reflects (i) the
Company’s pro forma financial results for the nine months ended September 30, 2023, as if the Company had disposed of
Aircraft Management Business prior to the beginning of such period, and (ii) the Company’s actual financial results for the
three months ended December 31, 2023, which is the portion of the year ended December 31, 2023 that the Company did
not own the Aircraft Management Business.
WHEELS UP EXPERIENCE INC.
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL
STATEMETNS
The unaudited pro forma consolidated
financial information reflects certain assumptions, estimates and accounting adjustments that the Company’s management believes
are reasonable under the circumstances and necessary to present fairly the unaudited pro forma consolidated statements of operations for
year ended December 31, 2023. Certain amounts presented herein are estimates or involve subjective or complex judgments, which required
the Company’s management to make assumptions with respect to values or conditions, including regarding the effect of matters that
are inherently uncertain, in accordance with the Company’s accounting policies. Such assumptions, estimates and accounting adjustments
are described in the accompanying notes, which should be read together with the unaudited pro forma consolidated financial information.
The unaudited pro forma consolidated
financial information has been provided for informational purposes only and does not purport to project the future or historical financial
position or results of operations of the Company, Circadian or the Aircraft Management Business on a stand-alone basis. The unaudited
pro forma consolidated financial information presented herein is not necessarily indicative of the Company’s future consolidated
results of operations, cash flows, liquidity or financial condition. The actual results of the Company may differ significantly from those
reflected herein.
The unaudited pro forma consolidated
financial information and the accompanying notes should be read in conjunction with the Company's historical financial statements and
accompanying notes included in its Annual Report on Form 10-K for the year ended December 31, 2023.
WHEELS UP EXPERIENCE INC.
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF
OPERATIONS
For the Twelve Months Ended December 31,
2023
(in thousands, except for share data)
| | |
Wheels
Up | | |
Divestiture
of
Aircraft
Management
Business
(a) | | |
Pro
Forma | |
| Revenue | |
$ | 1,253,317 | | |
| (172,220 | ) | |
$ | 1,081,097 | |
| | |
| | | |
| | | |
| | |
| Costs and expenses: | |
| | | |
| | | |
| | |
| Cost of revenue (exclusive of items shown separately below) | |
| 1,232,506 | | |
| (161,018 | ) | |
| 1,071,488 | |
| Technology and development | |
| 61,873 | | |
| (1,920 | ) | |
| 59,953 | |
| Sales and marketing | |
| 88,828 | | |
| (3,641 | ) | |
| 85,187 | |
| General and administrative | |
| 145,873 | | |
| (5,280 | ) | |
| 140,593 | |
| Depreciation and amortization | |
| 58,533 | | |
| (837 | ) | |
| 57,696 | |
| Gain on sale of aircraft held for sale | |
| (16,939 | ) | |
| - | | |
| (16,939 | ) |
| Impairment of goodwill | |
| 126,200 | | |
| (5,510 | ) | |
| 120,690 | |
| Total costs and expenses | |
| 1,696,874 | | |
| (178,207 | ) | |
| 1,518,667 | |
| | |
| | | |
| | | |
| | |
| Loss from operations | |
| (443,557 | ) | |
| 5,987 | | |
| (437,570 | ) |
| | |
| | | |
| | | |
| | |
| Other income (expense): | |
| | | |
| | | |
| | |
| Change in fair value of warrant liability | |
| 739 | | |
| - | | |
| 739 | |
| Loss on divestiture | |
| (2,991 | ) | |
| - | | |
| (2,991 | ) |
| Loss on extinguishment of debt | |
| (4,401 | ) | |
| - | | |
| (4,401 | ) |
| Interest income | |
| 6,121 | | |
| - | | |
| 6,121 | |
| Interest expense | |
| (41,255 | ) | |
| (19 | ) | |
| (41,274 | ) |
| Other expense, net | |
| (660 | ) | |
| 3 | | |
| (657 | ) |
| Total other income (expense) | |
| (42,447 | ) | |
| (16 | ) | |
| (42,463 | ) |
| | |
| | | |
| | | |
| | |
| Loss before income taxes | |
| (486,004 | ) | |
| 5,971 | | |
| (480,033 | ) |
| | |
| | | |
| | | |
| | |
| Income tax expense | |
| (1,383 | ) | |
| - | | |
| (1,383 | ) |
| | |
| | | |
| | | |
| | |
| Net loss | |
| (487,387 | ) | |
| 5,971 | | |
| (481,416 | ) |
| Less: Net loss attributable to non-controlling interests | |
| - | | |
| - | | |
| - | |
| Net loss attributable to Wheels Up Experience Inc. | |
$ | (487,387 | ) | |
| 5,971 | | |
$ | (481,416 | ) |
| | |
| | | |
| | | |
| | |
| Net loss per share of Common Stock: | |
| | | |
| | | |
| | |
| Basic and diluted | |
$ | (3.69 | ) | |
| | | |
$ | (3.64 | ) |
| | |
| | | |
| | | |
| | |
| Weighted-average shares of Common Stock outstanding: | |
| | | |
| | | |
| | |
| Basic and diluted | |
| 132,194,747 | | |
| | | |
| 132,194,747 | |
WHEELS UP EXPERIENCE INC.
NOTES TO THE PRO FORMA CONSOLIDATED FINANCIAL
STATEMENTS
(Unaudited)
The unaudited pro forma consolidated
financial statements give effect to the pro forma adjustments necessary to reflect the Divestiture as if the transaction had occurred
as of January 1, 2022 for each of the unaudited pro forma consolidated statements of operations for the year ended December 31, 2023.
| (a) | To reflect adjustments to remove the historical results of the
Aircraft Management Business, assuming the Divestiture occurred on January 1, 2022. |
Exhibit 107
Calculation of Filing Fee Table
Form S-3
(Form Type)
Wheels Up Experience Inc.
(Exact Name of Registrant as Specified in its
Charter)
Table 1: Newly Registered Securities and Carry
Forward Securities
| |
Security
Type |
Security
Class
Title |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered |
Proposed
Maximum
Offering
Price Per
Unit |
Maximum
Aggregate
Offering Price |
Fee
Rate |
Amount
of
Registration
Fee |
Carry
Forward
Form
Type |
Carry
Forward
File
Number |
Carry
Forward
Initial
effective
date |
Filing
Fee
Previously
Paid In
Connection
with
Unsold
Securities
to be
Carried
Forward |
| Newly
Registered Securities |
| Fees
to Be Paid |
Equity |
Class A
common stock, $0.0001 par value per share |
457(o) |
(1) |
(2) |
(2) |
.00015310 |
-- |
-- |
-- |
-- |
-- |
| |
Equity |
Preferred
stock $0.0001 par value per share |
457(o) |
(1) |
(2) |
(2) |
.00015310 |
-- |
-- |
-- |
-- |
-- |
| |
Equity |
Warrants
of Wheels Up Experience Inc. |
457(o) |
(1) |
(2) |
(2) |
.00015310 |
-- |
-- |
-- |
-- |
-- |
| |
Other |
Units
of Wheels Up Experience Inc. |
457(o) |
(1) |
(2) |
(2) |
.00015310 |
-- |
-- |
-- |
-- |
-- |
| |
Debt |
Debt
securities of Wheels Up Experience Inc. |
457(o) |
(1) |
(2) |
(2) |
.00015310 |
-- |
-- |
-- |
-- |
-- |
| Fees
Previously Paid |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
| Carry
Forward Securities |
| Carry
Forward Securities |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
| |
Total
Offering Amounts |
|
$400,000,000.00(3) |
.00015310 |
$61,240.00 |
|
|
|
|
| |
Total
Fees Previously Paid |
|
|
|
-- |
|
|
|
|
| |
Total
Fee Offsets |
|
|
|
$6,440.88(4) |
|
|
|
|
| |
Net
Fee Due |
|
|
|
$54,799.12 |
|
|
|
|
Table 2: Fee Offset Claims and Sources
| |
Registrant
or Filer
Name |
Form or
Filing
Type |
File
Number |
Initial
Filing
Date |
Filing
Date |
Fee
Offset
Claimed (4) |
Security
Type
Associated
with Fee
Offset
Claimed |
Security
Title
Associated
with Fee
Offset
Claimed |
Unsold
Securities
Associated
with Fee
Offset
claimed (4) |
Unsold
Aggregate
Offering
Amount
Associated
with Fee
Offset
Claimed(4) |
Fee
Paid
with Fee
Offset
Source (4) |
| Rule 457(p) |
| Fee
Offset Claims |
Wheels
Up Experience Inc. |
Form S-8 |
33-265991 |
07/01/22 |
-- |
$123.60 |
Equity |
Class A
common stock, $0.0001 par value per share |
68,376 |
$133,333.20 |
-- |
| Fee
Offset Claims |
Wheels
Up Experience Inc. |
Form S-8 |
33-280067 |
06/07/24 |
-- |
$6,317.28 |
Equity |
Class A
common stock, $0.0001 par value per share |
20,000,000 |
$42,800,000.00 |
-- |
| Fee
Offset Sources |
Wheels
Up Experience Inc. |
Form S-8 |
33-265991 |
-- |
07/01/22 |
-- |
-- |
-- |
-- |
-- |
$123.60 |
| Fee
Offset Sources |
Wheels
Up Experience Inc. |
Form S-8 |
33-280067 |
-- |
06/07/24 |
-- |
-- |
-- |
-- |
-- |
$6,317.28 |
| (1) | An
indeterminate amount of the securities of each identified class is being registered as may from time to time be offered hereunder at
indeterminate prices, along with an indeterminate number of securities that may be issued upon exercise, settlement, exchange or conversion
of securities offered or sold hereunder. Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities
Act”), this registration statement also covers any additional securities that may be offered or issued in connection with any stock
split, stock dividend or pursuant to anti-dilution provisions of any of the securities. Separate consideration may or may not be received
for securities that are issuable upon conversion, exercise or exchange of other securities. |
| (2) | The
proposed maximum offering price per security and proposed maximum aggregate offering price per class of security will be determined from
time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified
as to each class of security pursuant to the Instructions to the Calculation of Filing Fee Tables and Related Disclosure of Form S-3
under the Securities Act. |
| (3) | The
proposed maximum aggregate offering price is estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under
the Securities Act. Subject to Rule 462(b) under the Securities Act, the aggregate maximum offering price of all securities
issued by the registrant pursuant to this registration statement will not exceed $400,000,000.00. |
| (4) | On
July 1, 2022, the Registrant filed a registration statement on Form S-8 (File No. 33-265991) (the “2022 Registration
Statement”), which registered 2,051,282 shares (205,128 shares following a reverse stock split completed on June 7, 2023)
of the Registrant’s Class A common stock, $0.0001 par value per share (“Common Stock”) to be delivered to the
participants in the Registrant’s 2022 Inducement Grant Plan (the “2022 Inducement Grant Plan”). The Registrant previously
paid $370.80 in registration fees with respect to the 2022 Registration Statement. |
On June 7, 2024, the Registrant filed a registration
statement on Form S-8 (File No. 333-280067) (the “2024 CFO Performance Award Registration Statement” together with
the 2022 Registration Statement, the “Withdrawn Registration Statements”), which registered 20,000,000 shares of Common Stock
to be delivered to the participant(s) under the Wheels Up Experience Inc. Performance Award Agreement, dated as of March 3,
2024, by and between Wheels Up Experience Inc. and Todd Smith (the “CFO Performance Award Agreement”). The Registrant previously
paid $6,317.28 in registration fees with respect to the 2024 CFO Performance Award Registration Statement.
The
participant under the 2022 Inducement Grant Plan and the CFO Performance Award Agreement ceased performing services to the Registrant
effective September 6, 2024. Pursuant to the terms of the 2022 Inducement Grant Plan, 68,376 RSUs granted to the participant
of the 2022 RSUs, were forfeited (the “Forfeited RSUs”) and as a result, no shares of Common Stock were issued, or in the
future will be issuable, with respect to the Forfeited RSUs under the 2022 Registration Statement. Similarly, pursuant to the terms of
the CFO Performance Award Agreement, the entire award to the participant was forfeited and no shares of Common Stock were issued, or in
the future will be issuable under the 2024 CFO Performance Award Registration Statement. The Registrant filed post-effective amendments
to withdraw the Withdrawn Registration Statements on December 27, 2024. As a result, the Registrant has $6,440.88 in unused
filing fees associated with the Withdrawn Registration Statements that remain available to offset filing fees payable pursuant to this
registration statement in accordance with Rule 457(p) under the Securities Act.
Wheels Up Experience (NYSE:UP)
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