SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as of March 6, 2020, among Gogo Air International GmbH, a Swiss Gesellschaft mit beschränkter Haftung having its seat in Zug (the Guaranteeing Subsidiary), a subsidiary of Gogo Inc. (or its permitted successor), a Delaware corporation, Gogo Intermediate Holdings LLC, a Delaware limited liability company, and Gogo Finance Co. Inc., a Delaware corporation (together, the Issuers), the other Guarantors (as defined in the Indenture referred to herein) and U.S. Bank National Association, as trustee under the Indenture referred to below (the Trustee).
W I T N E S S E T H
WHEREAS, the Issuers have heretofore executed and delivered to the Trustee an indenture, dated as of April 25, 2019 (as amended or supplemented from time to time, the Indenture) providing for the issuance of 9.875% Senior Secured Notes due 2024 (the notes);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Issuers Obligations under the notes and the Indenture on the terms and conditions set forth herein (the Guarantee); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Guarantee and in the Indenture including but not limited to Article 11 thereof.
3. LIMITATIONS TO GUARANTEE.
(a) Notwithstanding anything herein to the contrary, the payment obligations, liabilities and undertakings of the Guaranteeing Subsidiary under the Indenture or under the Notes Security Documents shall in no event (i) to the extent prohibited under Swiss law and practice then applicable at the time payment is due, exceed the amount of freely disposable reserves of the Guaranteeing Subsidiary as available for distribution to its shareholders at the time the relevant liability becomes due, including, without limitation, any statutory reserves which can be transferred into unrestricted, distributable reserves, in accordance with Swiss law or (ii) to the extent prohibited under Swiss law and practice then applicable at the time payment is due, constitute a repayment of capital (Einlagerückgewähr), a violation of the legally protected