Exhibit 10.4


 





EXECUTION VERSION


 


CONSENT AND AMENDMENT NO. 3


TO SECOND LIEN CREDIT AGREEMENT


 


This CONSENT AND
AMENDMENT NO. 3 TO SECOND LIEN CREDIT AGREEMENT, dated as of October 31, 2019 (this “Amendment”),
is by and among TELIGENT, INC., a Delaware corporation (the “Borrower”), its Subsidiaries signatory
hereto, the lenders from time to time party hereto (each a “Lender” and, collectively, the “Lenders”),
ARES CAPITAL CORPORATION, a Maryland corporation (“ARCC”), as administrative agent and collateral
agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative
Agent”). For purposes of this Amendment, all terms used herein which are not otherwise defined herein, including
but not limited to those terms used in the recitals hereto, shall have the respective meanings assigned thereto in the Amended
Credit Agreement (as defined below).


 


WHEREAS,
the Administrative Agent, Lenders, Borrower and other Credit Parties have entered into financing arrangements pursuant to which
the Lenders (or Administrative Agent on behalf of the Lenders) have made and may make Loans and provide other financial accommodations
to Borrower as set forth in (i) the Second Lien Credit Agreement, dated as of December 13, 2018, as amended by that certain Amendment
No. 1 to Second Lien Credit Agreement, dated as of February 8, 2019, as amended by that certain Amendment No. 2 to Second Lien
Credit Agreement, dated as of July 18, 2019 and effective as of July 29, 2019 (as in effect prior to the effectiveness of this
Amendment, the “Credit Agreement”, and as the same is further amended by this Amendment and as may be
further amended, restated, supplemented or otherwise modified from time to time, the “Amended Credit Agreement”),
by and among the Administrative Agent, Lenders, Borrower and other Credit Parties and (ii) the other Credit Documents, including,
without limitation, this Amendment;


 


WHEREAS,
the Borrower has informed the Administrative Agent and the Lenders that (i) the Borrower intends to issue and sell certain 7.0%
/ 8.0% PIK Convertible Senior Notes due 2023 (the “2023 PIK Convertible Notes”), (ii) certain Subsidiaries
of the Borrower intend to guarantee the obligations of the Borrower in respect of the 2023 PIK Convertible Notes and (iii) the
Borrower intends to exchange a portion of the 2023 Convertible Notes for a portion of the 2023 PIK Convertible Notes (collectively,
the “2023 PIK Notes Transaction”);


 


WHEREAS,
the Borrower has requested that (i) the Administrative Agent and the Lenders consent to the 2023 PIK Notes Transaction and (ii)
amend certain provisions of the Credit Agreement, as provided more fully herein.


 


NOW
THEREFORE, in consideration of the foregoing premises and the mutual agreements and covenants contained in the Credit Agreement
and herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:


 


Section
1. Consent. Subject to the conditions to effectiveness set forth in Section 4 hereof, and notwithstanding Sections
9.01, 9.09 and 9.16 of the Credit Agreement, the Administrative Agent and the Lenders signatory hereto hereby
consent to: (i) the Borrower’s issuance and sale of the 2023 PIK


Convertible Notes and (ii)
the guarantee of the Borrower’s obligations in respect of the 2023 PIK Convertible Notes by those Subsidiaries of the Borrower
that are Credit Parties from time to time; provided, that no Subsidiary shall guarantee the Borrower’s obligations under
the 2023 PIK Convertible Notes unless such Subsidiary is a Guarantor under the Credit Agreement.


 






     


     


    







 


Section
2. Amendments to the Credit Agreement. Subject to the conditions to effectiveness set forth in Section 4 hereof,
and in reliance upon the representations and warranties made by the Credit Parties in Section 3 hereof, pursuant to Section
12.01 of the Credit Agreement and subject to the terms and conditions herein, the Credit Agreement is hereby amended as set
forth below in this Section 2.


 


2.01.       Section
1.1 of the Credit Agreement is hereby amended:


 


(a)        by
inserting the following new definitions in correct alphabetical order:


 


“‘2023
PIK Convertible Notes’ shall mean the Borrower’s 7.0% / 8.0% PIK Convertible Senior Notes due 2023.”


 


“‘Amendment
No. 3 Effective Date’ shall mean October 31, 2019.”


 


(b)        by
amending and restating the following definitions:


 


“‘2019
Convertible Notes Repurchase’ shall mean the Borrower’s repurchase, redemption or repayment at maturity of
all or any portion of the 2019 Convertible Notes, whether by tender offer, open-market purchases or otherwise.”


 


“‘DDTL
B Commitment Expiration Date’ shall mean October 31, 2019.”


 


“‘Fee
Letter’ shall mean, collectively, the (i) Amended and Restated Fee Letter dated as of the Closing Date by and between
the Borrower, the Administrative Agent and the First Lien Agent, as amended, restated, supplemented or otherwise modified from
time to time and (ii) Amendment Fee Letter dated as of the Amendment No. 3 Effective Date by and between the Borrower, the Administrative
Agent and the First Lien Agent, as amended, restated, supplemented or otherwise modified from time to time (the “Amendment
Fee Letter”).”


 


“‘Maturity
Date’ shall mean the date that is the earliest of (a) five (5) years and six (6) months after the Closing Date, or,
if such date is not a Business Day, the next succeeding Business Day, (b) the date on which the Commitments are voluntarily terminated
pursuant to the terms hereof, (c) the date on which all amounts outstanding under this Agreement have been declared or have automatically
become due and payable (whether by acceleration or otherwise), (d) the date that is 91 days prior to the maturity date of the 2023
Convertible Notes and (e) the date that is 91 days prior to the maturity date of the 2023 PIK Convertible Notes.”


 






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“‘Term
Loan’ shall mean the Initial Term Loan, Delayed Draw Term Loan A or Delayed Draw Term Loan B. For the avoidance of
doubt, “Term Loan” shall include all interest and fees (including the Amendment PIK Fee (as defined in the Amendment
Fee Letter)) that are paid in kind and added to the principal of the Term Loans.”


 


2.02       Section
2.01 of the Credit Agreement is hereby amended:


 


(a)          by adding the phrase, “Except in connection with a 2019 Convertible Notes Repurchase constituting a payment at maturity
at par,”; and


 


(b)         by deleting the text of clause (e)(ii) in its entirety and substituting the following therefor:


 


“(ii)        Delayed
Draw Term Loan B Conditions. No Lender with a DDTL B Commitment shall be obligated to fund any Delayed Draw Term Loan B after
the DDTL B Commitment Expiration Date and unless each of the following conditions have been satisfied or waived in accordance with
this Agreement (in addition to all other conditions to the funding of Delayed Draw Term Loan B set forth in this Agreement):”


 


2.03       Section
8.14 of the Credit Agreement is hereby amended by adding the following at the end of the first sentence thereof:


 


“unless
such 2019 Convertible Notes Repurchase constitutes a payment at maturity, in which event no such condition shall apply”


 


2.04       Section
8.15 of the Credit Agreement is hereby amended by adding a new subsection (j) to read as follows:


 


“(j)         Within
three (3) Business Days following any 2019 Convertible Notes Repurchase constituting payment at maturity (or such longer period
as may be agreed by Administrative Agent in its sole discretion), Borrower shall have delivered to Administrative Agent a discharge
from the trustee of the 2019 Convertible Notes evidencing such payment at maturity.”


 


2.05       Section
9.01 of the Credit Agreement is hereby amended by deleting the text of clause (b) in its entirety and substituting the following
therefor:


 


               “(b)
Indebtedness existing as of the Closing Date which is identified in Schedule 7.24 and which is not otherwise permitted by this
Section 9.01, and, except with respect to any 2019 Convertible Notes, Permitted Refinancing Indebtedness thereof;”


 






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2.06      
Section 9.01 of the Credit Agreement is hereby amended by (i) deleting the word “and” in subsection (m); (ii)
replacing the period in subsection (n) with a semicolon and the word “and”; and (iii) adding a new subsection (o) to
read as follows:


 


               “(o)
Indebtedness of the Credit Parties in respect of the 2023 PIK Convertible Note.”


 


2.07       Section
9.06 of the Credit Agreement is hereby amended by deleting the text of clause (d) in its entirety and substituting the following
therefor:


 


               “(d)
conversion of the 2019 Convertible Notes, the 2023 Convertible Notes and the 2023 PIK Convertible Notes into equity interests of
the Borrower in accordance with the terms thereof.”


 


2.08       Section
9.09 of the Credit Agreement is hereby amended by (i) deleting the word “and” at the end of clause (c) and replacing
it with a comma; (ii) replacing the period in clause (d) with the word “and”; and (iii) adding a new clause (e) to
read as follows:


 


               “(e)
transactions solely among Credit Parties.”


 


2.09       Section
9.16 of the Credit Agreement is hereby amended by deleting the text thereof in its entirety and substituting the following
therefor:


 


“SECTION
9.16.            Voluntary Prepayments of Material Indebtedness; Scheduled Interest Payments on the 2023 PIK Convertible Notes.


 


(a)          No Credit Party shall make any voluntary prepayment of 2019 Convertible Notes unless such prepayment is funded from the
proceeds of (w) the Term Loans funded on the Closing Date, (x) the DDTL A Facility, (y) the issuance of Capital Stock or (z) the
proceeds of all or any portion of the 2023 PIK Convertible Notes.


 


(b)          No Credit Party shall make any voluntary prepayment of the 2023 Convertible Notes unless such prepayment is funded from
the proceeds of the issuance of Capital Stock; provided that, in no event shall any exchange of 2023 Convertible Notes for
2023 PIK Convertible Notes be prohibited by operation of this Section 9.16(b).


 


(c)          Borrower shall not elect to make any payments of interest on the 2023 PIK Convertible Notes in cash if and to the extent
that Borrower has the right to make such election pursuant to the indenture, promissory note or other agreements, instruments and
documents governing the 2023 PIK Convertible Notes as in effect on the date hereof.


 


(d)          No Credit Party shall make any voluntary prepayment of the 2023 PIK Convertible Notes unless such prepayment is funded from
the proceeds of the issuance of Capital Stock.”


 






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Section
3. Representations and Warranties. Each Credit Party, jointly and severally, hereby represents and warrants to the Lenders
and the Administrative Agent as follows, which representations and warranties are continuing and shall survive the execution and
delivery hereof:


 


3.01       No Default. At and as of the date of this Amendment and both prior to and after giving effect to this Amendment,
no Default or Event of Default is continuing.


 


3.02      Representations and Warranties True and Correct. At and as of the date of this Amendment and both prior to and
after giving effect to this Amendment, each of the representations and warranties contained in the Credit Agreement and other Credit
Documents is true and correct in all material respects (except where such representations and warranties expressly relate to an
earlier date, in which case such representations and warranties are true and correct in all material respects as of such earlier
date).


 


3.03      Corporate
Power and Authority. Each Credit Party has the corporate or other organizational power and authority to execute and deliver
this Amendment and carry out the terms and provisions of this Amendment and the Amended Credit Agreement and has taken all necessary
corporate or other organizational action to authorize the execution, delivery and performance of this Amendment and the performance
of the Amended Credit Agreement. Each Credit Party has duly executed and delivered this Amendment, and this Amendment and the
Amended Credit Agreement constitute the valid and binding agreements of such Credit Party enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization and other similar
laws relating to or affecting creditors’ rights generally and general principles of equity (whether considered in a proceeding
in equity or law).


 


3.04      No
Violation. The execution, delivery and performance by any Credit Party of this Amendment and the performance of the Amended
Credit Agreement, and compliance with the terms and provisions thereof, will not (i) contravene any applicable provision of any
material Applicable Law of any Governmental Authority, (ii) result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose)
any Lien upon any of the property or assets of any Credit Party (other than Permitted Liens and Liens created under the Credit
Documents) pursuant to (A) the terms of any material indenture, loan agreement, lease agreement, mortgage or deed of trust, or
(B) any other Material Contracts Obligation, in the case of either clause (ii)(A) or (ii)(B), to which any Credit Party is a party
or by which it or any of its property or assets is bound, or (iii) violate any provision of the Organization Documents of any
Credit Party, except with respect to any conflict, breach or contravention or default (but not creation of Liens) referred to
in clause (ii), to the extent that such conflict, breach, contravention or default could not reasonably be expected to have a
Material Adverse Effect.


 


Section
4. Conditions. This Amendment shall not become effective until each of the following conditions is satisfied (or waived
by the Required Lenders):


 






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4.01      The
Administrative Agent shall have received counterparts of this Amendment duly executed by each Credit Party signatory hereto and
each other relevant party to this Amendment;


 


4.02      The representations and warranties contained in Section 3 hereof shall be true and correct in all material respects
on and as of the date hereof, as though made on such date (except to the extent that such representations and warranties relate
solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects
on and as of such earlier date);


 


4.03      The Administrative Agent shall have received, for its own account, the fees, costs and expenses due and payable to it
pursuant to Section 5.01 hereof and Section 12.05 of the Amended Credit Agreement (including the reasonable fees,
disbursements and other charges of counsel) for which invoices have been presented prior to the date hereof; and


 


4.04    
The Administrative Agent shall have received counterparts of the Amendment Fee Letter executed by each Credit Party
signatory thereto and each other relevant party thereto.


 


4.05    
The Administrative Agent shall have received counterparts of the Consent and Amendment No. 1 to First Lien Credit Agreement
duly executed by each Credit Party signatory thereto and each other relevant party thereto.


 


Section 5.           Miscellaneous.


 


5.01       Fees and Expenses. The Borrower agrees and acknowledges that all reasonable and documented out-of-pocket costs
and expenses incurred by the Administrative Agent in connection with this Amendment, including the reasonable fees, disbursements
and other charges of one counsel, shall be paid by the Credit Parties to the Administrative Agent.


 


5.02       No Waiver or Modification. Nothing contained herein shall be deemed to constitute a waiver of compliance with
any term or condition contained in the Credit Agreement or any other Credit Document or constitute a course of conduct or dealing
among the parties. The Administrative Agent and Lenders reserve all rights, privileges and remedies under the Credit Documents.
Except as expressly amended hereby, the Credit Agreement and other Credit Documents remain unmodified and in full force and effect
in accordance with their respective terms and are hereby ratified and confirmed in all respects.


 


5.03       Credit Document. This Amendment shall constitute a Credit Document under and as defined in the Amended Credit
Agreement. All references in the Credit Documents to the Credit Agreement shall be deemed to be references to the Credit Agreement
as amended hereby.


 


5.04       Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND ANY CLAIM, CONTROVERSY
OR DISPUTE UNDER, ARISING OUT OF OR RELATING TO THIS AMENDMENT, WHETHER BASED IN CONTRACT (AT LAW OR IN EQUITY), TORT OR ANY OTHER
THEORY, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 






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5.05       Counterparts. This Amendment may be executed by one or more of the parties hereto in any number of separate
counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile
or in electronic format (i.e., “pdf” or “tif”) by electronic transmission shall be effective as delivery
of a manually executed counterpart of this Amendment.


 


5.06      Headings.
Section headings in this Amendment are included herein for convenience of reference only and shall not affect the interpretation
of this Amendment.


 


5.07      Binding
Effect; Assignment. This Amendment shall be binding upon and inure to the benefit of the Borrower, the other Credit Parties,
the Administrative Agent and the Lenders and their respective successors and assigns in accordance with the terms of the Credit
Agreement.


 


5.08      Integration. This Amendment, the Amended Credit Agreement, and the other Credit Documents incorporate all negotiations
of the parties hereto with respect to the subject matter hereof and thereof and are the final expression and agreement of the parties
hereto and thereto with respect to the subject matter hereof and thereof. This Amendment, the Amended Credit Agreement, and the
other Credit Documents represent the agreement of the parties hereto with respect to the subject matter hereof and thereof, and
there are no promises, undertakings, representations or warranties by any party hereto or thereto relative to the subject matter
hereof or thereof not expressly set forth or referred to herein or therein.


 


5.09     Reaffirmation. Each Credit Party as debtor, grantor, pledgor, guarantor, assignor, or in any other similar capacity
in which such Credit Party grants liens or security interests in its property or otherwise acts as accommodation party or guarantor,
as the case may be, hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise,
under each Credit Document to which it is a party (after giving effect hereto) and (ii) to the extent such Credit Party granted
liens on or security interests in any of its property pursuant to any such Credit Document as security for or otherwise guaranteed
the Borrower’s Obligations under or with respect to the Credit Documents, ratifies and reaffirms such guarantee and grant
of security interests and liens and confirms and agrees that such security interests and liens hereafter secure all of the Obligations
as amended hereby.


 


 


[Remainder of the page intentionally left blank]


 






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IN WITNESS WHEREOF, the parties hereto have
caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.


  


	BORROWER: 	TELIGENT, INC.
	 	 




	 	By:	/s/ Damian Finio
	 	 	Name: Damian Finio
	 	 	Title: Chief Financial Officer




 


	GUARANTORS: 	IGEN, INC.




 


	 	By:	s/ Damian Finio
	 	 	Name: Damian Finio
	 	 	Title: Chief Financial Officer




 


	 	TELIGENT PHARMA, INC.  
	 	 




	 	By:	s/ Damian Finio
	 	 	Name: Damian Finio
	 	 	Title: Chief Financial Officer  





  





[Signature Page to Amendment No. 3 to Second Lien Credit
Agreement]







 



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	ADMINISTRATIVE AGENT AND A LENDER:	ARES CAPITAL CORPORATION,







	 	a Maryland corporation




  


	 	By:	/s/ Scott Lem
	 	 	Name: Scott Lem
	 	 	Title: Authorized Signatory



 





[Signature Page to Amendment No. 3 to Second Lien Credit
Agreement]







 






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	LENDERS:	ACF FINCO I LP,



	 	a Delaware limited partnership




 


	 	By:	/s/ Oleh Szczupak
	 	 	Name: Oleh Szczupak
	 	 	Title: Authorized Signatory




  


	 	CION ARES DIVERSIFIED CREDIT FUND




  


	 	By:	/s/ Scott Lem
	 	 	Name: Scott Lem
	 	 	Title: Authorized Signatory







 


	 	ARES CENTRE STREET PARTNERSHIP, L.P.,




 


	 	By:	Ares Centre Street GP, Inc., as general partner




  


	 	By:	/s/ Scott Lem
	 	 	Name: Scott Lem
	 	 	Title: Authorized Signatory




  


	 	ARES CREDIT STRATEGIES INSURANCE DEDICATED FUND SERIES INTERESTS OF THE SALI MULTI-SERIES FUND, L.P.




 


	 	By:	Ares Capital Management LLC, its investment manager




  


	 	By:	/s/ Scott Lem
	 	 	Name: Scott Lem
	 	 	Title: Authorized Signatory




 





[Signature Page to Amendment No. 3 to Second Lien Credit
Agreement]







  



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