aresamendno1secondliencr






                                                                Execution Version              AMENDMENT NO. 1 TO SECOND LIEN CREDIT AGREEMENT          This AMENDMENT  NO.  1  TO  SECOND  LIEN  CREDIT  AGREEMENT,  dated  as  of   February 8, 2019 (this “Amendment”), is by and among TELIGENT, INC., a Delaware corporation (the   “Borrower”),  its  Subsidiaries  signatory  hereto  as  guarantors  or  hereafter  designated  as  Guarantors   pursuant to Section 8.11 of the Credit Agreement (as defined below), 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 in effect prior to the   effectiveness  of  this  Amendment,  the  “Credit  Agreement”,  and  as  the  same  is  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; and         WHEREAS, the Borrower, the Administrative Agent, and the Lenders desire to 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.  Amendments  to  the  Credit  Agreement.  Subject  to  the  conditions  to   effectiveness set forth in Section 3 hereof, and in reliance upon the representations and warranties made   by the Credit Parties in Section 2 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 1.                1.01. Section 1.01 of the Credit Agreement is hereby amended:                      (a)   by  inserting  the  following  new  definitions  in  their  proper  alphabetical   order:                       “‘Consolidated Excess Cash Flow’ shall mean, for a specified period, the excess                     (if any), of: (a) Consolidated Adjusted EBITDA for such period, less (b) the sum                     for such period (without duplication and to the extent that the following amounts                     have not already been deducted in determining Consolidated Adjusted EBITDA                     for such period) of (i) Consolidated Interest Expense paid in cash, (ii) scheduled                     principal payments of the Term Loans or other Indebtedness of the Borrower and                     its Subsidiaries (in respect of Indebtedness permitted under Section 9.01 hereof)                     made during such period to the extent paid in cash (and not financed, other than                     with the proceeds of loans funded under the First Lien Credit Agreement), (iii)   DB1/ 101382397.3 





 






                   Taxes based on income paid in cash by the Borrower and its Subsidiaries, (iv)                     Consolidated  Capital  Expenditures  made  in  cash  during  such  period  (and  not                     financed, other than with the proceeds of loans funded under the First Lien Credit                     Agreement), (v) any costs, expenses and/or charges described in clause (b)(vii) or                     clause  (b)(viii)  of  the  definition  of  “Consolidated  Adjusted  EBITDA”  to  the                     extent paid in the cash during such period, (vi) the purchase price paid in cash for                     all Permitted Acquisitions to the extent paid in cash (and not financed, other than                     with the proceeds  of loans  funded  under the  First  Lien Credit  Agreement)  and                     (vii)  increases  (or  minus  decreases)  in  Consolidated  Working  Capital  for  such                     period.”                      “‘Consolidated  Working Capital”  shall  mean, as of any  date  of  determination,                     the excess of (a) the sum of all amounts (other than Cash and Cash Equivalents)                     that  would,  in  conformity  with  GAAP,  be  set  forth  opposite  the  caption  “total                     current assets” (or any like caption) on a consolidated balance sheet of Borrower                     and its Subsidiaries at such date over (b) the sum of all amounts that would, in                     conformity with GAAP, be set forth opposite the caption “total current liabilities”                     (or  any  like  caption)  on  a  consolidated  balance  sheet  of  Borrower  and  its                     Subsidiaries  on  such  date,  including  deferred  revenue  but  excluding,  without                     duplication,  (i)  the  current  portion  of  any  Funded  Debt,  (ii)  all  Indebtedness                     consisting of the Loans and loans under the First Lien Credit Agreement to the                     extent otherwise included therein, (iii) the current portion of interest and (iv) the                     current portion of current and deferred income Taxes.                1.02. Section  5.02(f)  of  the  Credit  Agreement  is  hereby  amended  and  restated  in  its   entirety as follows:                 “(f)  Subject to Section 5.02(i), amounts to be applied in connection with prepayments               and  Commitment  reductions  made  pursuant  to  this  Section  5.02,  other  than  under               subsection (l) of this Section, shall be applied, first, to the prepayment of the Term Loans,               together with any accrued and unpaid interest thereon, until such Term Loans are repaid               in  full  and,  second,  to  the  prepayment  of  any  other  outstanding  Obligations.   Each               prepayment of the Loans under this Section 5.02, other than under subsection (l) of this               Section, shall be accompanied by accrued interest to the date of such prepayment on the               principal  amount  prepaid  and  the  Prepayment  Premium  or  Make-Whole  Premium,  as               applicable.                  1.03. Section  5.02(j)  of  the  Credit  Agreement  is  hereby  amended  and  restated  in  its   entirety as follows:                 “(j)  Notwithstanding the foregoing, each Lender may reject all or a portion of its Pro               Rata  Share  of  any  mandatory  prepayment  (such  declined  amounts,  the  “Declined               Proceeds”) of any class of Term Loans required to be made pursuant to clauses (a), (b),               (c), or (l) of this Section 5.02 by providing written notice (each, a “Rejection Notice”) to               the Administrative Agent and the Borrower no later than 1:00 p.m. one (1) Business Day               after the date of such Lender’s receipt of notice from the Administrative Agent regarding               such  prepayment  (subject  to  extension  by  Administrative  Agent  in  its  sole  discretion).                Each Rejection Notice from a Lender shall specify the principal amount of the mandatory                                          2   DB1/ 101382397.3 





 






             prepayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver a               Rejection Notice to Administrative Agent within the time frame specified above or such               Rejection Notice fails to specify the principal amount of the Term Loans to be rejected,               any  such  failure will  be deemed  an  acceptance  of  the  total  amount  of  such  mandatory               prepayment  of  such  Term  Loans.  Any  Declined  Proceeds  may  be  retained  by  the               Borrower.                   1.04. Section 5.02 of the Credit Agreement is hereby amended by adding thereto the   following new Section:                “(l)  On  or  prior  to  the  earlier of  (A)  the fifth (5th)  day after the  delivery  of annual               financial statements for a fiscal year in accordance with Section 8.01(c) or (B) the ninety-              fifth  (95th)  day  of  each  year,  in  each  case  commencing  with  the  fiscal  year  ending               December 31, 2020, the Borrowers shall prepay the Loans in an amount equal to (x) fifty               percent  (50%)  of  Consolidated  Excess  Cash  Flow  (if  any)  for  such  fiscal  year,  to  be               applied as set forth in Section 5.02(f) less (y) all voluntary prepayments of Term Loans               made  during  such  fiscal  year  pursuant  to  Section  5.01,  to  be  applied  as  set  forth  in               Section 5.02(f).”          Section 2.  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:                2.01. 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.                2.02. 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).                2.03. 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).                2.04. 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                                          3   DB1/ 101382397.3 





 






 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 3.  Conditions. This Amendment shall become effective on the date upon which the   Administrative Agent shall have received counterparts of this Amendment duly executed by each Credit   Party and each other relevant party to this Amendment.           Section 4.  Miscellaneous.                4.01. 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.                4.02. 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.                  4.03. 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.                  4.04. 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.                 4.05. 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.                                           4   DB1/ 101382397.3 





 






             4.06. Headings.  Section  headings  in  this  Amendment  are  included  herein  for   convenience of reference only and shall not affect the interpretation of this Amendment.                4.07. 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.                4.08. 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.                4.09. 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 Borrowers’ 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]                                          5   DB1/ 101382397.3