UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
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Securities registered pursuant to Section 12(b) of the Act:
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| * | * | * |
| * | On October 30, 2023, the NYSE filed a Form 25 relating to the delisting from the NYSE of our Class A common stock. The delisting became effective on November 9, 2023. The Class A common stock will continue to trade over the counter under the symbol “AUDA.” |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Explanatory Note
Continued Discussions with Creditors
Audacy, Inc. (the “Company” or “Audacy”) continues to engage in discussions with its creditors with respect to a number of potential alternatives regarding a restructuring of the Company’s outstanding indebtedness.
| Item 1.01 | Entry into a Material Definitive Agreement. |
Credit Facility Amendment
On December 8, 2023, Audacy Capital Corp. (formerly known as Entercom Media Corp., the “Issuer”), the guarantors party thereto and the lenders party thereto, entered into Amendment No. 12 (the “Credit Facility Amendment”) to the credit agreement, dated as of October 17, 2016 (as amended, restated, supplemented and/or otherwise modified from time to time, the “Credit Facility”). The Credit Facility Amendment extends the grace period before which a default in the payment of interest matures into an Event of Default to 68 calendar days. However, if lenders holding a majority of the outstanding obligations under the Credit Facility (the “Required Lenders”) have not received a substantially final form of agreement with respect to a consensual transaction relating to the Issuer’s funded indebtedness satisfactory to such lenders on or before December 15, 2023, the grace period extension expires after 45 calendar days.
The following Credit Facility interest payments are or will be subject to the grace period extensions under the Credit Facility Amendment:
| • | approximately $17,000,000 originally due on October 31, 2023; |
| • | approximately $785,592 originally due on November 8, 2023; and |
| • | approximately $1,125,000 originally due on December 28, 2023. |
The foregoing summary of the Credit Facility Amendment does not purport to be complete and is qualified in its entirety by reference to the complete terms of the Credit Facility Amendment, a copy of which is filed with this Current Report on Form 8-K as Exhibit 10.1, and is incorporated herein by reference.
Receivables Facility Amendment
On December 8, 2023, Audacy Receivables, LLC (“Audacy Receivables”) and the other parties to the Receivables Purchase Agreement, dated as of July 15, 2021, by and among Audacy Receivables, Autobahn Funding Company LLC, as an investor, DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt AM Main, as agent on behalf of the investor parties and Audacy Operations, Inc. as the servicer (as amended, restated, supplemented and/or otherwise modified from time to time, the “Receivables Facility”) entered into Amendment No. 8 to the Receivables Facility (the “Receivables Facility Amendment”), which:
| • | amends the cross-default that would otherwise occur under the Receivables Facility in respect of certain defaults in the payment of interest under the Credit Facility, with the effect that such interest payment defaults will not result in an event of default under the Receivables Facility until the expiration of the 68 or 45 calendar day grace periods, as applicable, provided for under the Credit Facility Amendment described above; and |
| • | extends certain related covenant accommodations with respect to the Company’s liquidity position through January 7, 2024. |
The foregoing summary of the Receivables Facility Amendment does not purport to be complete and is qualified in its entirety by reference to the complete terms of the Receivables Facility Amendment, a copy of which is filed with this Current Report on Form 8-K as Exhibit 10.2, and is incorporated herein by reference.
Supplemental Indentures
On December 8, 2023, the Issuer, the guarantors named therein, and Deutsche Bank Trust Company Americas, as trustee and as notes collateral agent entered into:
| • | a fourth supplemental indenture (the “Fourth Supplemental Indenture”) to an existing indenture, dated as of April 30, 2019 (as amended, restated, supplemented and/or otherwise modified from time to time, the “2027 Base Indenture” and, together with the Fourth Supplemental Indenture, the “2027 Notes Indenture”), governing the terms of the Issuer’s 6.500% senior secured second-lien notes due May 1, 2027 (the “2027 Notes”); and |
| • | a third supplemental indenture (the “Third Supplemental Indenture” and, together with the Fourth Supplemental Indenture, the “Supplemental Indentures”) to an existing indenture, dated as of March 25, 2021 (as amended, restated, supplemented and/or otherwise modified from time to time, the “2029 Base Indenture” and, together with the Third Supplemental Indenture, the “2029 Notes Indenture”) governing the terms of the Issuer’s 6.750% senior secured second-lien notes due March 31, 2029 (the “2029 Notes” and, together with the 2027 Notes, the “Notes”). |
The Supplemental Indentures extend the grace period before which a default in payment of interest on the Notes matures into an Event of Default as follows:
| • | 2027 Notes: from 40 calendar days to 67 calendar days; and |
| • | 2029 Notes: from 71 calendar days to 99 calendar days. |
However, if holders of a majority in principal amount of the outstanding 2027 Notes (the “2027 Notes Majority Holders”) or holders of a majority in principal amount of the outstanding 2029 Notes (the “2029 Notes Majority Holders” and, together with the 2027 Notes Majority Holders, the “Majority Noteholders”), as applicable, have not received a substantially final form of agreement among the Issuer, the subsidiary guarantors and the applicable Majority Noteholders with respect to a consensual transaction relating to the Issuer’s funded indebtedness that is in form and substance satisfactory to the applicable Majority Noteholders by December 15, 2023, the grace period extensions expire after:
| • | 2027 Notes: 44 calendar days; and |
| • | 2029 Notes: 76 calendar days. |
In addition, if the applicable Majority Noteholders have not received an agreement executed by the applicable Majority Noteholders and the Required Lenders with respect to a consensual transaction relating to the Issuer’s funded indebtedness that is in form and substance satisfactory to the applicable Majority Noteholders by December 18, 2023, the grace period extensions expire after:
| • | 2027 Notes: 47 calendar days; and |
| • | 2029 Notes: 79 calendar days. |
The grace period extensions will also terminate if an event of default permitting acceleration of amounts due under the Credit Facility occurs due to nonpayment of interest or if the Issuer makes certain interest payments due under the Credit Facility.
The following interest payments under the applicable Notes are subject to the grace period extensions under the applicable Supplemental Indenture:
| • | 2027 Notes: approximately $15,000,000 originally due on November 1, 2023; and |
| • | 2029 Notes: approximately $18,000,000 originally due on September 30, 2023. |
The foregoing summary of the Supplemental Indentures does not purport to be complete and is qualified in its entirety by reference to the complete terms of the Supplemental Indentures, copies of which are filed with this Current Report on Form 8-K as Exhibits 4.1 and 4.2 and are incorporated herein by reference.
Forward-Looking Statements
This Current Report on Form 8-K contains certain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements are based upon current expectations and involve certain risks and uncertainties, including statements about the restructuring of the Company, anticipated future financial or operational results, and the Company’s financial position. Additional information and key risks applicable to these statements are described in the Company’s reports on Forms 8-K, 10-Q and 10-K and other filings the Company makes with the U.S. Securities and Exchange Commission. All of the forward-looking statements in this Current Report on Form 8-K are qualified by these cautionary statements, and actual results or developments may differ materially from those in these forward-looking statements. The Company assumes no obligation to publicly update or revise any forward-looking statements.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Audacy, Inc. | ||
| By: | /s/ Andrew P. Sutor, IV | |
| Andrew P. Sutor, IV | ||
| Executive Vice President | ||
Dated: December 11, 2023
Exhibit 4.1
THIRD SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of December 8, 2023, by and among Audacy Capital Corp. (f/k/a Entercom Media Corp.), a Delaware corporation (the “Issuer”), the guarantors party hereto (the “Subsidiary Guarantors”) and Deutsche Bank Trust Company Americas, a New York banking corporation, as trustee (in such capacity, the “Trustee”) and as notes collateral agent (in such capacity, the “Notes Collateral Agent”).
W I T N E S S E T H
WHEREAS, the Issuer, the Subsidiary Guarantors, the Trustee and the Notes Collateral Agent have heretofore executed and delivered an indenture, dated as of March 25, 2021 (the “Base Indenture”), as supplemented by the First Supplemental Indenture, dated as of October 27, 2023 (the “First Supplemental Indenture”) and the Second Supplemental Indenture, dated as of November 29, 2023 (the “Second Supplemental Indenture” and, together with the Base Indenture and the First Supplemental Indenture, the “Indenture”), relating to the issuance of the Issuer’s 6.750% Senior Secured Second-Lien Notes due 2029 (the “Notes”);
WHEREAS, pursuant to and on the date of the Indenture, the Issuer initially issued $540,000,000 aggregate principal amount of the Notes;
WHEREAS, clause (2) of Section 6.01(a) of the Base Indenture provides that an “Event of Default” means a default for 30 days or more in the payment when due of Interest on or with respect to the Notes;
WHEREAS, the First Supplemental Indenture amends clause (2) of Section 6.01(a) of the Base Indenture to provide that an “Event of Default” means a default for 60 days or more in the payment when due of Interest on or with respect to the Notes;
WHEREAS, the Second Supplemental Indenture amends clause (2) of Section 6.01(a) of the Base Indenture to provide that an “Event of Default” means a default for 71 days or more in the payment when due of Interest on or with respect to the Notes;
WHEREAS, the Issuer and the Subsidiary Guarantors desire to enter into this Supplemental Indenture to amend the definition of an Event of Default under clause (2) of Section 6.01(a) of the Indenture as indicated below;
WHEREAS, the Indenture provides that, among other things, the Issuer, the Subsidiary Guarantors and the Trustee may amend or supplement the Indenture with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding (the “Majority Holders”) pursuant to Section 9.02 thereof;
WHEREAS, the Issuer has received the consent of the Holders of at least a majority in principal amount of the Notes outstanding to amend clause (2) of Section 6.01(a) of the Indenture as indicated below; and
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties 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) Amendment to Section 6.01. With respect to the Notes, clause (2) in the definition of “Event of Default” in Section 6.01(a) of the Indenture is hereby deleted and amended and restated in its entirety to read as follows:
“(2) default in the payment when due of interest on or with respect to the Notes:
| (i) | for 99 days (or, (x) in the event the Majority Holders have not received, on or before December 15, 2023, a substantially final form of agreement among the Issuer, the Subsidiary Guarantors and the Majority Holders with respect to a consensual transaction relating to the Issuer’s funded Indebtedness that is in form and substance satisfactory to the Majority Holders, 76 days, or (y) in the event the Majority Holders have not received, on or before December 18, 2023, an agreement executed by the Majority Holders and lenders holding a majority of the outstanding obligations under the Credit Facility with respect to a consensual transaction relating to the Issuer’s funded Indebtedness that is in form and substance satisfactory to the Majority Holders, 79 days); or |
| (ii) | that is continuing on such date as: |
| (A) | a failure to pay interest under a Credit Facility when due constitutes an event of default permitting all unpaid principal, interest accrued and unpaid thereon and other amounts owed or payable under such Credit Facility to be immediately due and payable; or |
| (B) | the Issuer makes the payment of interest under the Credit Agreement originally due on October 31, 2023 or December 28, 2023 (including during or after any applicable grace period); |
which, in the case of (A) or (B) above, the Issuer shall notify to the Trustee in writing promptly and in any event within one (1) calendar day;
whichever is earliest;”
(3) Necessary Actions. Each of the Issuer and the Subsidiary Guarantors hereby represents and warrants that all actions necessary to give effect to this Supplemental Indenture have been taken.
(4) Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(5) Counterparts. The parties may sign any number of copies of this Supplemental Indenture. This Supplemental Indenture may be signed by electronic signature. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmissions shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes.
(6) Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
(7) The Trustee. The Trustee shall not be responsible in any manner whatsoever for or with respect to (i) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Company by action or otherwise, (iii) the due execution hereof by the Company or (iv) the consequences of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.
(8) Continued Effect. Except as expressly supplemented and amended by this Supplemental Indenture, the Indenture shall continue in full force and effect in accordance with the provisions thereof, and the Indenture (as supplemented and amended by this Supplemental Indenture) is in all respects hereby ratified and confirmed.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
| AUDACY CAPITAL CORP. | ||
| (F/K/A ENTERCOM MEDIA CORP.) | ||
| By: | /s/ Andrew P. Sutor, IV | |
| Name: Andrew P. Sutor, IV | ||
| Title: Executive Vice President | ||
| ON BEHALF OF EACH OF THE SUBSIDIARY GUARANTORS LISTED ON SCHEDULE I HERETO | ||
| By: | /s/ Andrew P. Sutor, IV | |
| Name: Andrew P. Sutor, IV | ||
| Title: Executive Vice President | ||
[Signature Page to the Supplemental Indenture]
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee and Notes Collateral Agent | ||
| By: | /s/ Rodney Gaughan | |
| Name: Rodney Gaughan | ||
| Title: Vice President | ||
| By: | /s/ Joseph Denno | |
| Name: Joseph Denno | ||
| Title: Vice President | ||
[Signature Page to the Supplemental Indenture]
SCHEDULE I
| Subsidiary Guarantor |
| Audacy Miami, LLC (f/k/a Entercom Miami, LLC) |
| Audacy Corp. (f/k/a Entercom, Inc.) |
| Audacy Operations, Inc. (f/k/a Entercom Operations, Inc.) |
| Audacy Illinois, LLC (f/k/a Entercom Illinois, LLC) |
| Audacy Maryland, LLC (f/k/a Entercom Maryland, LLC) |
| Audacy Massachusetts, LLC (f/k/a Entercom Massachusetts, LLC) |
| Audacy Michigan, LLC (f/k/a Entercom Michigan, LLC) |
| Audacy Washington DC, LLC (f/k/a Entercom Washington DC, LLC) |
| Audacy Radio Tower, LLC (f/k/a Entercom Radio Tower, LLC) |
| Audacy Sports Radio, LLC (f/k/a Entercom Sports Radio, LLC) |
| Eventful, LLC |
| Audacy Georgia, LLC (f/k/a Entercom Georgia, LLC) |
| Audacy California, LLC (f/k/a Entercom California, LLC) |
| Audacy Colorado, LLC (f/k/a Entercom Colorado, LLC) |
| Audacy Florida, LLC (f/k/a Entercom Florida, LLC) |
| Audacy South Carolina, LLC (f/k/a Entercom South Carolina, LLC) |
| Audacy Indiana, LLC (f/k/a Entercom Indiana, LLC) |
| Audacy Kansas, LLC (f/k/a Entercom Kansas, LLC) |
| Audacy Missouri, LLC (f/k/a Entercom Missouri, LLC) |
| Audacy Louisiana, LLC (f/k/a Entercom Louisiana, LLC) |
| Audacy New York, LLC (f/k/a Entercom New York, LLC) |
| Audacy North Carolina, LLC (f/k/a Entercom North Carolina, LLC) |
| Audacy Pennsylvania, LLC (f/k/a Entercom Pennsylvania, LLC) |
| Audacy Oregon, LLC (f/k/a Entercom Oregon, LLC) |
| Audacy Rhode Island, LLC (f/k/a Entercom Rhode Island, LLC) |
| Audacy Washington, LLC (f/k/a Entercom Washington, LLC) |
| Audacy Tennessee, LLC (f/k/a Entercom Tennessee, LLC) |
| Audacy Texas, LLC (f/k/a Entercom Texas, LLC) |
| Audacy Virginia, LLC (f/k/a Entercom Virginia, LLC) |
| Audacy Wisconsin, LLC (f/k/a Entercom Wisconsin, LLC) |
| Audacy License, LLC (f/k/a Entercom License, LLC) |
| Audacy Properties, LLC (f/k/a Entercom Properties, LLC) |
| Audacy Arizona, LLC (f/k/a Entercom Arizona, LLC) |
| Audacy Connecticut, LLC (f/k/a Entercom Connecticut, LLC) |
| Audacy Minnesota, LLC (f/k/a Entercom Minnesota, LLC) |
| Audacy Nevada, LLC (f/k/a Entercom Nevada, LLC) |
| Audacy Ohio, LLC (f/k/a Entercom Ohio, LLC) |
| Infinity Broadcasting LLC |
| Pineapple Street Media LLC |
| QL Gaming Group, LLC |
| Podcorn Media, LLC |
Exhibit 4.2
FOURTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of December 8, 2023, by and among Audacy Capital Corp. (f/k/a Entercom Media Corp.), a Delaware corporation (the “Issuer”), the guarantors party hereto (the “Subsidiary Guarantors”) and Deutsche Bank Trust Company Americas, a New York banking corporation, as trustee (in such capacity, the “Trustee”) and as notes collateral agent (in such capacity, the “Notes Collateral Agent”).
W I T N E S S E T H
WHEREAS, the Issuer, the Subsidiary Guarantors, the Trustee and the Notes Collateral Agent have heretofore executed and delivered an indenture, dated as of April 30, 2019 (the “Base Indenture”), as supplemented by the First Supplemental Indenture, dated as of December 13, 2019 (the “First Supplemental Indenture”), the Second Supplemental Indenture, dated as of October 20, 2021 (the “Second Supplemental Indenture”), and the Third Supplemental Indenture, dated as of November 30, 2023 (the “Third Supplemental Indenture” and, together with the Base Indenture, the First Supplemental Indenture and the Second Supplemental Indenture, the “Indenture”), relating to the issuance of the Issuer’s 6.500% Senior Secured Second-Lien Notes due 2027 (the “Notes”);
WHEREAS, pursuant to and on the date of the Indenture, the Issuer initially issued $325,000,000 aggregate principal amount of the Notes;
WHEREAS, pursuant to the Indenture, on December 13, 2019, the Issuer issued an additional $100,000,000 aggregate principal amount of the Notes;
WHEREAS, pursuant to the Indenture, on October 20, 2021, the Issuer issued an additional $45,000,000 aggregate principal amount of the Notes;
WHEREAS, clause (2) of Section 6.01(a) of the Base Indenture provides that an “Event of Default” means a default for 30 days or more in the payment when due of interest (as defined in the Indenture) on or with respect to the Notes;
WHEREAS, the Third Supplemental Indenture amends clause (2) of Section 6.01(a) of the Base Indenture to provide that an “Event of Default” means a default for 40 days or more in the payment when due of Interest on or with respect to the Notes;
WHEREAS, the Issuer and the Subsidiary Guarantors desire to enter into this Supplemental Indenture to amend the definition of an Event of Default under clause (2) of Section 6.01(a) of the Indenture as indicated below;
WHEREAS, the Indenture provides that, among other things, the Issuer, the Subsidiary Guarantors and the Trustee may amend or supplement the Indenture with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding (the “Majority Holders”) pursuant to Section 9.02 thereof;
WHEREAS, the Issuer has received the consent of the Holders of at least a majority in principal amount of the Notes outstanding to amend clause (2) of Section 6.01(a) of the Indenture as indicated below; and
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties 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) Amendment to Section 6.01. With respect to the Notes, clause (2) in the definition of “Event of Default” in Section 6.01(a) of the Indenture is hereby deleted and amended and restated in its entirety to read as follows:
“(2) default in the payment when due of interest on or with respect to the Notes:
| (i) | for 67 days (or, (x) in the event the Majority Holders have not received, on or before December 15, 2023, a substantially final form of agreement among the Issuer, the Subsidiary Guarantors and the Majority Holders with respect to a consensual transaction relating to the Issuer’s funded Indebtedness that is in form and substance satisfactory to the Majority Holders, 44 days, or (y) in the event the Majority Holders have not received, on or before December 18, 2023, an agreement executed by the Majority Holders and lenders holding a majority of the outstanding obligations under the Credit Facility with respect to a consensual transaction relating to the Issuer’s funded Indebtedness that is in form and substance satisfactory to the Majority Holders, 47 days); or |
| (ii) | that is continuing on such date as: |
| (A) | a failure to pay interest under a Credit Facility when due constitutes an event of default permitting all unpaid principal, interest accrued and unpaid thereon and other amounts owed or payable under such Credit Facility to be immediately due and payable; or |
| (B) | the Issuer makes the payment of interest under the Credit Agreement originally due on October 31, 2023 or December 28, 2023 (including during or after any applicable grace period); |
which, in the case of (A) or (B) above, the Issuer shall notify to the Trustee in writing promptly and in any event within one (1) calendar day;
whichever is earliest;”
(3) Necessary Actions. Each of the Issuer and the Subsidiary Guarantors hereby represents and warrants that all actions necessary to give effect to this Supplemental Indenture have been taken.
(4) Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(5) Counterparts. The parties may sign any number of copies of this Supplemental Indenture. This Supplemental Indenture may be signed by electronic signature. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmissions shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes.
(6) Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
(7) The Trustee. The Trustee shall not be responsible in any manner whatsoever for or with respect to (i) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Company by action or otherwise, (iii) the due execution hereof by the Company or (iv) the consequences of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.
(8) Continued Effect. Except as expressly supplemented and amended by this Supplemental Indenture, the Indenture shall continue in full force and effect in accordance with the provisions thereof, and the Indenture (as supplemented and amended by this Supplemental Indenture) is in all respects hereby ratified and confirmed.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
| AUDACY CAPITAL CORP. | ||
| (F/K/A ENTERCOM MEDIA CORP.) | ||
| By: | /s/ Andrew P. Sutor, IV | |
| Name: Andrew P. Sutor, IV | ||
| Title: Executive Vice President | ||
| ON BEHALF OF EACH OF THE SUBSIDIARY GUARANTORS LISTED ON SCHEDULE I HERETO | ||
| By: | /s/ Andrew P. Sutor, IV | |
| Name: Andrew P. Sutor, IV | ||
| Title: Executive Vice President | ||
[Signature Page to the Supplemental Indenture]
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee and Notes Collateral Agent | ||
| By: | /s/ Rodney Gaughan | |
| Name: Rodney Gaughan | ||
| Title: Vice President | ||
| By: | /s/ Joseph Denno | |
| Name: Joseph Denno | ||
| Title: Vice President | ||
[Signature Page to the Supplemental Indenture]
SCHEDULE I
| Subsidiary Guarantor |
| Audacy Miami, LLC (f/k/a Entercom Miami, LLC) |
| Audacy Corp. (f/k/a Entercom, Inc.) |
| Audacy Operations, Inc. (f/k/a Entercom Operations, Inc.) |
| Audacy Illinois, LLC (f/k/a Entercom Illinois, LLC) |
| Audacy Maryland, LLC (f/k/a Entercom Maryland, LLC) |
| Audacy Massachusetts, LLC (f/k/a Entercom Massachusetts, LLC) |
| Audacy Michigan, LLC (f/k/a Entercom Michigan, LLC) |
| Audacy Washington DC, LLC (f/k/a Entercom Washington DC, LLC) |
| Audacy Radio Tower, LLC (f/k/a Entercom Radio Tower, LLC) |
| Audacy Sports Radio, LLC (f/k/a Entercom Sports Radio, LLC) |
| Eventful, LLC |
| Audacy Georgia, LLC (f/k/a Entercom Georgia, LLC) |
| Audacy California, LLC (f/k/a Entercom California, LLC) |
| Audacy Colorado, LLC (f/k/a Entercom Colorado, LLC) |
| Audacy Florida, LLC (f/k/a Entercom Florida, LLC) |
| Audacy South Carolina, LLC (f/k/a Entercom South Carolina, LLC) |
| Audacy Indiana, LLC (f/k/a Entercom Indiana, LLC) |
| Audacy Kansas, LLC (f/k/a Entercom Kansas, LLC) |
| Audacy Missouri, LLC (f/k/a Entercom Missouri, LLC) |
| Audacy Louisiana, LLC (f/k/a Entercom Louisiana, LLC) |
| Audacy New York, LLC (f/k/a Entercom New York, LLC) |
| Audacy North Carolina, LLC (f/k/a Entercom North Carolina, LLC) |
| Audacy Pennsylvania, LLC (f/k/a Entercom Pennsylvania, LLC) |
| Audacy Oregon, LLC (f/k/a Entercom Oregon, LLC) |
| Audacy Rhode Island, LLC (f/k/a Entercom Rhode Island, LLC) |
| Audacy Washington, LLC (f/k/a Entercom Washington, LLC) |
| Audacy Tennessee, LLC (f/k/a Entercom Tennessee, LLC) |
| Audacy Texas, LLC (f/k/a Entercom Texas, LLC) |
| Audacy Virginia, LLC (f/k/a Entercom Virginia, LLC) |
| Audacy Wisconsin, LLC (f/k/a Entercom Wisconsin, LLC) |
| Audacy License, LLC (f/k/a Entercom License, LLC) |
| Audacy Properties, LLC (f/k/a Entercom Properties, LLC) |
| Audacy Arizona, LLC (f/k/a Entercom Arizona, LLC) |
| Audacy Connecticut, LLC (f/k/a Entercom Connecticut, LLC) |
| Audacy Minnesota, LLC (f/k/a Entercom Minnesota, LLC) |
| Audacy Nevada, LLC (f/k/a Entercom Nevada, LLC) |
| Audacy Ohio, LLC (f/k/a Entercom Ohio, LLC) |
| Infinity Broadcasting LLC |
| Pineapple Street Media LLC |
| QL Gaming Group, LLC |
| Podcorn Media, LLC |
Exhibit 10.1
Execution Version
AMENDMENT NO. 12
THIS AMENDMENT NO. 12, dated as of December 8, 2023 (this “Amendment”) is among Audacy Capital Corp. (formerly known as ENTERCOM MEDIA CORP.), a Delaware corporation (the “Borrower”), the Guarantors party hereto, and the Lenders (constituting the Required Lenders) party hereto.
RECITALS
WHEREAS, reference is made to that certain Credit Agreement, dated as of October 17, 2016 (as amended by that certain Amendment No. 1, dated as of March 3, 2017, that certain Amendment No. 2, dated as of November 17, 2017, that certain Amendment No. 3, dated as of April 30, 2019, that certain Amendment No. 4, dated as of December 13, 2019, that certain Amendment No. 5, dated as of July 20, 2020, that certain Amendment No. 6, dated as of March 5, 2021, that certain Amendment No. 7, dated as of June 15, 2023, that certain Amendment No. 8, dated as of November 3, 2023, that certain Amendment No. 9, dated as of November 13, 2023, that certain Amendment No. 10, dated as of November 19, 2023, that certain Amendment No. 11, dated as of November 29, 2023, and as further amended, restated, amended and restated, supplemented and/or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement” and as further amended by this Amendment, the “Credit Agreement”), among the Borrower, the Guarantors from time to time party thereto, the Lenders from time to time party thereto and Wilmington Savings Fund Society, FSB (as successor to JPMorgan Chase Bank, N.A.), as administrative agent for the Lenders and as collateral agent for the Secured Parties.
WHEREAS, pursuant Section 8.01(a) of the Existing Credit Agreement, an Event of Default shall occur if any Loan Party fails to pay within forty (40) days after the same becomes due, any interest on any Loan.
WHEREAS, the failure by the Borrower and the other Loan Parties to make (i) the scheduled payments of interest due and payable on October 31, 2023 as required under Section 2.08(b) of the Existing Credit Agreement on or before December 10, 2023 and (ii) the scheduled payment of interest due and payable on November 8, 2023 as required under Section 2.08(b) of the Existing Credit Agreement on or before December 18, 2023 will, in each case, constitute an Event of Default under Section 8.01(a) of the Existing Credit Agreement.
WHEREAS, pursuant to Section 10.01 of the Existing Credit Agreement, the Loan Parties and the Required Lenders can amend certain terms of Section 8.01(a) of the Existing Credit Agreement.
WHEREAS, the Loan Parties have requested that the Required Lenders modify certain terms and conditions hereafter set forth, and subject to the terms and conditions hereof, the Required Lenders are willing to do so.
NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
SECTION 1 Definitions. Capitalized terms used in this Amendment but not otherwise defined herein shall have the same meanings given to them in the Credit Agreement.
SECTION 2 Amendments to Credit Agreement.
2.1 Effective as of the Amendment No. 12 Effective Date, Section 8.01(a) of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“(a) Non-Payment. Any Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan, (ii) within sixty-eight (68) days (or in the in the event the Required Lenders have not received, on or before December 15, 2023, a substantially final form of agreement among the Loan Parties and certain of the Lenders with respect to a consensual transaction relating to the Borrower’s funded indebtedness that is in form and substance satisfactory to the Required Lenders, forty-five (45) days) after the same becomes due, any interest on any Loan or (iii) within sixty-eight (68) days (or in the in the event the Required Lenders have not received, on or before December 15, 2023, a substantially final form of
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agreement among the Loan Parties and certain of the Lenders with respect to a consensual transaction relating to the Borrower’s funded indebtedness that is in form and substance satisfactory to the Required Lenders, forty-five (45) days) after the same becomes due, any other amount payable hereunder or under any other Loan Document; or ”
SECTION 3. Representations and Warranties; No Event of Default. Each of the Loan Parties hereby represents and warrants to each of the Administrative Agent and the Lenders that, as of the Amendment No. 12 Effective Date, after giving effect to this Amendment:
(a) this Amendment has been duly authorized, executed and delivered by such Loan Party and constitutes the legal, valid and binding obligation of such Loan Party enforceable against each such Loan Party in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) implied covenants of good faith and fair dealing and (iv) any foreign laws, rules and regulations as they relate to pledges of Equity Interests of Foreign Subsidiaries (other than those pledges made under the Laws of the jurisdiction of formation of the applicable Foreign Subsidiary);
(b) no Event of Default exists; and
(c) the representations and warranties of each Loan Party contained in Article V of the Credit Agreement (other than, for the avoidance of doubt, Section 5.05(b) and Section 5.17 of the Credit Agreement) or any other Loan Document are true and correct in all material respects on and as of such date (except, to the extent that such representations and warranties specifically refer to an earlier date, they are true and correct as of such earlier date); provided, that, to the extent that such representations and warranties are qualified by materiality, material adverse effect or similar language, they are true and correct in all respects.
SECTION 4 Conditions to Effectiveness of this Amendment. Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the Administrative Agent and Lenders hereunder, it is understood and agreed that this Amendment shall become effective, and the Loan Parties shall have rights under this Amendment, upon the satisfaction of the following conditions (the “Amendment No. 12 Effective Date”):
(a) receipt by the Required Lenders of the fully executed counterparts of this Amendment from each of the Loan Parties and the Lenders party hereto constituting the Required Lenders;
(b) as of the Amendment No. 12 Effective Date, the representations and warranties set forth herein shall be true and correct in all respects.
SECTION 5 Continuing Effectiveness, Etc. Except as set forth expressly herein, all terms of the Credit Agreement and the other Loan Documents shall be and remain in full force and effect and shall constitute the legal, valid, binding and enforceable obligations of the Loan Parties to the Administrative Agent and the Lenders. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Administrative Agent or the Lenders under the Credit Agreement, nor constitute a waiver of any provision of the Credit Agreement and the Administrative Agent and the Lenders require strict compliance with all of the terms and conditions of the Credit Agreement and each of the other Loan Documents in the future. It is expressly stated that the parties are not entering into a mutual disregard of the terms and provisions of the Credit Agreement or any other Loan Document. This Amendment shall constitute a Loan Document for all purposes of the Credit Agreement.
SECTION 6 Conduct of Lender; Release of Claims. The Borrower and its Affiliates, successors, assigns and legal representatives (collectively, the “Releasors”), acknowledge and agree that, to their knowledge and through the date hereof, each Secured Party has acted in good faith and has conducted itself in a commercially reasonable manner in its relationships with the Releasors in connection with this Amendment and in connection with the Obligations, the Credit Agreement and the other Loan Documents, and the obligations and liabilities of the Releasors existing thereunder or arising in connection therewith, and the Releasors hereby waive and release any claims to the
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contrary. The Releasors hereby release, acquit, and forever discharge each Secured Party and its Affiliates (including, without limitation, its parent and its subsidiaries) and their respective officers, directors, employees, agents, attorneys, advisors, successors and assigns, both present and former (collectively, the “Secured Party Affiliates”) from any and all manner of losses, costs, defenses, damages, liabilities, deficiencies, actions, causes of action, suits, debts, controversies, damages, judgments, executions, claims, demands and expenses whatsoever, asserted or unasserted, known or unknown, foreseen or unforeseen, in contract, tort, law or equity (generically, “Claims”), that any Releasor has or may have against any Secured Party and/or any Secured Party Affiliate by reason of any action, failure to act, event, statement, accusation, assertion, matter or thing whatsoever arising from or based on facts occurring prior to the effectiveness of this Amendment that arises out of or is connected to the Loan Documents or the Obligations; provided that, the foregoing shall not apply to any Claim resulting from the gross negligence, bad faith or willful misconduct of any of the Secured Parties or the Secured Party Affiliates. Each of the Releasors hereby unconditionally and irrevocably agrees that it will not sue any Secured Party or any Secured Party Affiliate on the basis of any Claim released, remised and discharged by such Releasor pursuant to this paragraph. If any Releasor or any of their respective successors, assigns or other legal representatives violates the foregoing covenant, each Releasor, for itself and its successors, assigns and legal representatives, agrees to pay, in addition to such other damages as any Secured Party or any Secured Party Affiliate may sustain as a result of such violation, all reasonable and documented attorneys’ fees and costs incurred by any Secured Party or any Secured Party Affiliate as a result of such violation.
SECTION 7 Counterparts; Electronic Signatures. This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or by email as a “.pdf” or “.tif” attachment shall be effective as delivery of a manually executed counterpart of this Amendment. The words “execution,” “executed,” “signed,” “signature,” and words of like import in this Amendment shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the Electronic Transactions Act 1999 of Bermuda, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 8 Successors and Assigns. The provisions of this Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns in accordance with Section 9.05 of the Credit Agreement.
SECTION 9 Incorporation of Loan Agreement Provisions. The provisions of Sections 10.15 and 10.16 of the Credit Agreement are incorporated by reference as if fully set forth herein, mutatis mutandis.
SECTION 10 No Other Waivers. Except as expressly provided herein, any waiver hereby granted by the Lenders signatory hereto does not (a) constitute a waiver or modification of any other terms or provisions set forth in the Credit Agreement and, except as expressly provided herein, shall not impair any right that the Administrative Agent or any Lender may now or hereafter have under or in connection with the Credit Agreement, and (b) impair the Administrative Agent’s or any Lender’s right to insist upon strict compliance with the Credit Agreement.
SECTION 11 Captions. Captions and section headings appearing herein are included solely for convenience of reference and are not intended to affect the interpretation of any provision of this Amendment.
[Signature Pages Follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as of the day and year first above written.
| AUDACY CAPITAL CORP., as the Borrower | ||
| By: | /s/ Andrew P. Sutor, IV | |
| Name: Andrew P. Sutor, IV | ||
| Title: Executive Vice President | ||
[Signature Page to Amendment No. 12]
| AUDACY CORP. | ||
| AUDACY OPERATIONS, INC. | ||
| AUDACY MIAMI, LLC | ||
| AUDACY ARIZONA, LLC | ||
| AUDACY CALIFORNIA, LLC | ||
| AUDACY COLORADO, LLC | ||
| AUDACY CONNECTICUT, LLC | ||
| AUDACY FLORIDA, LLC | ||
| AUDACY GEORGIA, LLC | ||
| AUDACY ILLINOIS, LLC | ||
| AUDACY KANSAS, LLC | ||
| AUDACY LOUISIANA, LLC | ||
| AUDACY MARYLAND, LLC | ||
| AUDACY MASSACHUSETTS, LLC | ||
| AUDACY MICHIGAN, LLC | ||
| AUDACY MINNESOTA, LLC | ||
| AUDACY MISSOURI, LLC | ||
| AUDACY NEVADA, LLC | ||
| AUDACY NEW YORK, LLC | ||
| AUDACY NORTH CAROLINA, LLC | ||
| AUDACY OHIO, LLC | ||
| AUDACY OREGON, LLC | ||
| AUDACY PENNSYLVANIA, LLC | ||
| AUDACY RHODE ISLAND, LLC | ||
| AUDACY SOUTH CAROLINA, LLC | ||
| AUDACY TENNESSEE, LLC | ||
| AUDACY TEXAS, LLC | ||
| AUDACY VIRGINA, LLC | ||
| AUDACY WASHINGTON DC, LLC | ||
| AUDACY WASHINGTON, LLC | ||
| AUDACY WISCONSIN, LLC | ||
| AUDACY LICENSE, LLC | ||
| AUDACY PROPERTIES, LLC | ||
| AUDACY RADIO TOWER, LLC | ||
| AUDACY SPORTS RADIO, LLC | ||
| EVENTFUL, LLC | ||
| INFINITY BROADCASTING LLC | ||
| PINEAPPLE STREET MEDIA LLC | ||
| QL GAMING GROUP, LLC | ||
| AMPERWAVE, LLC | ||
| AUDACY NETWORKS, LLC | ||
| AUDACY SERVICES, LLC | ||
| PODCORN MEDIA, LLC as a Guarantor | ||
| By: | /s/ Andrew P. Sutor, IV | |
| Name: Andrew P. Sutor, IV | ||
| Title: Executive Vice President | ||
[Signature Page to Amendment No. 12]
[Lender signature pages on file with the Administrative Agent]
[Signature Page to Amendment No. 12]
Exhibit 10.2
EXECUTION VERSION
AMENDMENT NO. 8 TO RECEIVABLES PURCHASE AGREEMENT
This AMENDMENT NO. 8 TO RECEIVABLES PURCHASE AGREEMENT, dated as of December 8, 2023 (this “Amendment”), is among AUDACY RECEIVABLES, LLC, a Delaware limited liability company, as seller (the “Seller”), AUTOBAHN FUNDING COMPANY LLC (“Autobahn”), as an investor (in such capacity, the “Investor”), DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK, FRANKFURT AM MAIN (“DZ BANK”), as agent on behalf of the Investor Parties (in such capacity, together with its successors and assigns in such capacity, the “Agent”), and AUDACY OPERATIONS, INC., a Delaware corporation, in its individual capacity (“Audacy Operations”) and as initial Servicer (in such capacity, together with its successors and assigns in such capacity, the “Servicer”).
W I T N E S S E T H:
WHEREAS, the Servicer, the Seller, the Investor, and the Agent have heretofore entered into that certain Receivables Purchase Agreement, dated as of July 15, 2021 (as amended, restated, supplemented, assigned or otherwise modified from time to time, the “Agreement”); and
WHEREAS, the parties hereto wish to modify the Agreement upon the terms hereof.
NOW, THEREFORE, in exchange for good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged and confirmed), the parties hereto agree as follows:
A G R E E M E N T:
1. Definitions. Unless otherwise defined or provided herein, capitalized terms used herein (including in the recitals) have the meanings attributed thereto in (or by reference in) the Agreement.
2. Amendments to the Agreement. The Agreement is hereby amended to incorporate the changes shown on the marked pages of the Agreement attached hereto as Exhibit A.
3. Conditions to Effectiveness. This Amendment shall be effective as of the date hereof upon satisfaction of the following conditions precedent:
(a) Execution of the Amendment. The Agent shall have received a counterpart of this Amendment duly executed by each of the other parties hereto.
(b) No Defaults. No Event of Default or Unmatured Event of Default shall have occurred and be continuing either before or immediately after giving effect to this Amendment or the transactions contemplated hereby.
4. Certain Representations and Warranties. Each of Audacy Operations, the Servicer and the Seller represents and warrants to each other and to each Investor Party on the date hereof, as follows:
(a) Representations and Warranties. The representations and warranties made by such party in the Agreement and in any other Transaction Document to which it is a party are true and correct both before and immediately after giving effect to this Amendment, as though made on and as of the date hereof unless such representations and warranties by their terms refer to an earlier date, in which case they shall be true and correct on and as of such earlier date.
(b) Power and Authority; Due Authorization. It (i) has all necessary power and authority to (A) execute and deliver this Amendment and (B) perform its obligations under the Transaction Documents to which it is a party (as amended by this Amendment) and (ii) has duly authorized by all necessary action the execution and delivery of this Amendment and the performance of the Transaction Documents to which it is a party (as amended by this Amendment).
(c) Binding Obligations. This Amendment and each of the other Transaction Documents to which such Person is a party constitutes legal, valid and binding obligations of such Person, enforceable against such Person in accordance with their respective terms, except (i) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (ii) as such enforceability may be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(d) No Conflict or Violation. The consummation of the transactions contemplated by this Amendment and the fulfillment of the terms hereof by it will not (i) conflict with, result in any breach of any of the terms or provisions of, or constitute (with or without notice or lapse of time or both) a default under, the Organizational Documents of such Person or any material indenture, sale agreement, credit agreement, loan agreement, security agreement, mortgage, deed of trust or other agreement or instrument to which such Person is a party or by which it or any of its property is bound, (ii) result in the creation or imposition of any Adverse Claim upon any of its properties pursuant to the terms of any such indenture, credit agreement, loan agreement, security agreement, mortgage, deed of trust or other agreement or instrument, other than the Agreement and the other Transaction Documents or (iii) conflict with or violate any Applicable Law, except to the extent that any such conflict or violation, as applicable, would not reasonably be expected to have a Material Adverse Effect.
(e) No Defaults. No Event of Default or Unmatured Event of Default shall have occurred and be continuing either before or immediately after giving effect to this Amendment or the transactions contemplated hereby.
(f) Capital Coverage Deficit. No Capital Coverage Deficit exists or would exist immediately after giving effect to this Amendment or the transactions contemplated hereby.
(g) Termination Date. The Termination Date has not occurred.
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5. Reference to, and Effect on the Agreement and the Transaction Documents.
(a) The Agreement (except as specifically amended herein) shall remain in full force and effect and the Agreement and each of the other Transaction Documents are hereby ratified and confirmed in all respects by each of the parties hereto.
(b) On and after the execution and delivery of this Amendment, (i) this Amendment shall be a part of the Agreement amended hereby and (ii) each reference in the Agreement to “this Agreement”, “hereof”, “hereunder” or words of like import referring to the Agreement, and each reference in any other Transaction Document to “the Receivables Purchase Agreement”, “thereunder”, “thereof” or words of like import referring to the Agreement, shall mean and be a reference to the Agreement, as amended by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Agent or the Investor, nor constitute a waiver of any provision of the Agreement or any other Transaction Document.
(d) To the extent that the consent of any party hereto, in any capacity, is required under the Transaction Documents or any other agreement entered into in connection with the Transaction Documents with respect to any of the amendments set forth herein, such party hereby grants such consent.
6. Further Assurances. Each of the Servicer and the Seller hereby agrees to do, at the Seller’s expense, all such things and execute all such documents and instruments and authorize and file all such financing statements and financing statement amendments, in each case, as the Agent, or the Investor may reasonably consider necessary or desirable to give full effect to the transactions contemplated by this Amendment and the documents, instruments and agreements executed in connection herewith.
7. Transaction Document. This Amendment shall be a Transaction Document under (and as defined in) the Agreement.
8. Costs and Expenses. The Seller agrees to pay promptly all reasonable and documented out-of-pocket costs and expenses in connection with the preparation, negotiation, execution and delivery of this Amendment, including the reasonable Attorney Costs for the Agent and the Investor Parties with respect thereto.
9. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and assigns.
10. Execution in Counterparts. This Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. Delivery of an executed signature page of this Amendment by facsimile transmission, emailed pdf. or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of an original executed counterpart hereof. The words “execution,” “signed,” “signature,” and
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words of like import in this Amendment or any Transaction Document shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
11. GOVERNING LAW. THIS AMENDMENT, INCLUDING THE RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICTS OF LAW PROVISIONS THEREOF).
12. CONSENT TO JURISDICTION. (a) EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN NEW YORK CITY, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT OR ANY OTHER TRANSACTION DOCUMENT, AND EACH PARTY HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. NOTHING IN THIS SECTION 12 SHALL AFFECT THE RIGHT OF THE AGENT OR ANY OTHER INVESTOR PARTY TO BRING ANY ACTION OR PROCEEDING AGAINST THE SELLER OR THE SERVICER OR ANY OF THEIR RESPECTIVE PROPERTY IN THE COURTS OF OTHER JURISDICTIONS. EACH OF THE SELLER AND THE SERVICER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING. THE PARTIES HERETO AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
(b) EACH OF THE SELLER AND THE SERVICER CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO IT AT ITS ADDRESS SPECIFIED IN SECTION 12.02 OF THE AGREEMENT. NOTHING IN THIS SECTION 12 SHALL AFFECT THE RIGHT OF THE AGENT OR ANY OTHER INVESTOR PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
13. Severability. Any provisions of this Amendment which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
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14. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment or be given any substantive effect.
15. Performance Guaranty. The Performance Guarantor hereby consents to this Amendment and agrees that the Agreement, each as amended hereby, shall remain in full force and effect immediately after giving effect to this Amendment. Immediately after giving effect to this Amendment, all of the provisions of the Performance Guaranty shall remain in full force and effect and the Performance Guarantor hereby ratifies and affirms the Performance Guaranty and acknowledges that the Performance Guaranty has continued and shall continue in full force and effect in accordance with its terms.
[THE REMAINDER OF THIS 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.
| AUDACY OPERATIONS, INC., | ||
| individually, and as Servicer | ||
| By: | /s/ Andrew P. Sutor, IV | |
| Name: Andrew P. Sutor, IV | ||
| Title: Executive Vice President | ||
| AUDACY RECEIVABLES, LLC, as Seller | ||
| By: | /s/ Andrew P. Sutor, IV | |
| Name: Andrew P. Sutor, IV | ||
| Title: Executive Vice President | ||
| AUDACY INC., as Performance Guarantor | ||
| By: | /s/ Andrew P. Sutor, IV | |
| Name: Andrew P. Sutor, IV | ||
| Title: Executive Vice President | ||
| S-1 | Amendment 8 to RPA (DZ-Audacy) |
| DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK, FRANKFURT AM MAIN, | ||
| as Agent | ||
| By: | /s/ Nellie Flek | |
| Name: Nellie Flek | ||
| Title: Vice President | ||
| By: | /s/ Christian Haesslein | |
| Name: Christian Haesslein | ||
| Title: Director | ||
| AUTOBAHN FUNDING COMPANY LLC, | ||
| as Investor | ||
| By: | /s/ Nellie Flek | |
| Name: Nellie Flek | ||
| Title: Vice President | ||
| By: | /s/ Christian Haesslein | |
| Name: Christian Haesslein | ||
| Title: Director | ||
| S-2 | Amendment 8 to RPA (DZ-Audacy) |
EXHIBIT A
[Amendments to the Agreement]
(attached)
EXECUTION VERSION
EXHIBIT A to
Amendment No. 78 to Receivables Purchase Agreement, dated as of November 29December 8,
2023
RECEIVABLES PURCHASE AGREEMENT
Dated as of July 15, 2021
by and among
AUDACY RECEIVABLES, LLC,
as Seller,
AUTOBAHN FUNDING COMPANY LLC,
as Investor,
DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK,
FRANKFURT AM MAIN,
as Agent,
and
AUDACY OPERATIONS, INC.,
as initial Servicer
“Audacy” means Audacy Inc., a Pennsylvania corporation.
“Audacy Capital” means Audacy Capital Corp., a Delaware corporation.
“Audacy Financial Covenant Event” shall be deemed to have occurred if any of the following events shall occur:
(a) the Consolidated Net First Lien Leverage Ratio (as defined in the Credit Agreement as in effect on the Closing Date) as of the end of any fiscal quarter of Audacy shall be greater than 4.00 to 1.00; provided, however, solely with respect to the fiscal quarter ending on September 30, 2023, the failure by Audacy to maintain a Consolidated Net First Lien Leverage Ratio (as defined in the Credit Agreement) less than or equal to 4.00 to 1.00 shall not constitute an Audacy Financial Covenant Event under this clause (a) until the day upon which such failure to maintain such Consolidated Net First Lien Leverage Ratio would constitute a breach of the financial covenants set forth under Section 7.09(a) of the Credit Agreement;
(b) Audacy shall fail to maintain or, on a quarterly basis, demonstrate to the Agent a Minimum Tangible Net Worth of at least $300,000,000. For the purposes of this clause, “Minimum Tangible Net Worth” shall be defined as total assets excluding radio broadcast licenses and goodwill less total liabilities excluding long-term Debt and long-term net deferred Tax liabilities. All such amounts shall be calculated in accordance with GAAP, as set forth in Audacy’s audited financial statements; or
(c) Audacy shall fail to (i) maintain a minimum liquidity of $25,000,000, or (ii) on any Reporting Date demonstrate to the Agent a minimum liquidity of $25,000,000 as of the last day of the immediately preceding calendar month. For purposes of this calculation, liquidity may include (i) cash, cash equivalent instruments, any amounts available to be drawn hereunder and (ii) (A) any amounts available to be drawn, and which the applicable lenders are committed to fund, under the Credit Agreement as in effect on the Closing Date or (B) any replacement credit facility to which any Audacy Party is a party (in each case, solely to the extent that all conditions precedent to drawing such amounts under this Agreement, the Credit Agreement or such replacement credit facility are satisfied, except for the delivery of a loan request or satisfaction of a similar administrative condition precedent), in the case of any replacement credit facility under clause (B), in an amount not to exceed the maximum amount that could be available under the Credit Agreement as in effect on the Closing Date as determined in accordance with clause (A).
“Audacy Party” means Audacy, the Transferor, the Seller, the Performance Guarantor, the Servicer and each Originator.
“Audacy Party Payments” means the October Audacy Party Payment and, the November Audacy Party Payment and the December Audacy Party
Payment.
“Autobahn” has the meaning set forth in the preamble to this Agreement.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
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“Daily Distribution Date” means each Business Day.
“Daily Report” means a report, in substantially the form of Exhibit G.
“Days Sales Outstanding” means, on any date, the number of days equal to the product of
(a) 91 and (b) the amount obtained by dividing (i) the average of the aggregate Unpaid Balance of the Eligible Receivables as of the Cut-Off Date for each of the three most recently ended Reporting Periods, by (ii) the aggregate initial Unpaid Balance of all Eligible Receivables which were originated during the three most recently ended Reporting Periods.
“Debt” means, as to any Person at any time, any and all indebtedness, obligations or liabilities (whether matured or unmatured, liquidated or unliquidated, direct or indirect, absolute or contingent, or joint or several) of such Person for or in respect of: (i) borrowed money, (ii) amounts raised under or liabilities in respect of any bonds, debentures, notes, note purchase, acceptance or credit facility, or other similar instruments or facilities, (iii) obligations to pay the deferred purchase price of property or services (other than trade payables incurred in the ordinary course of business), (iv) all obligations, contingent or otherwise, as an account party or applicant under or in respect of acceptances, letters of credit, surety bonds or similar arrangements (other than reimbursement obligations, which are not due and payable on such date, in respect of documentary letters of credit issued to provide for the payment of goods and services in the ordinary course of business), (v) any other transaction (including production payments (excluding royalties), installment purchase agreements, forward sale or purchase agreements, capitalized leases and conditional sales agreements) having the commercial effect of a borrowing of money entered into by such Person to finance its operations or capital requirements (but not including accounts payable incurred in the ordinary course of such Person’s business payable on terms customary in the trade), (vi) all net obligations of such Person in respect of interest rate or currency hedges, (vii) the liquidation value of all mandatorily redeemable preferred Capital Stock of such Person or (viii) any Guaranty of any such Debt.
“December Audacy Party Payment” means, with respect to the Credit Agreement (as in effect on the Closing Date), the interest payments due and payable on December 28, 2023, with a grace period ending on January 3, 2024 (such date, the “December Audacy Party Payment Due Date”).
“December Audacy Party Payment Due Date” has the meaning assigned to such term in the definition of “December Audacy Party Payment”.
“Deemed Collections” has the meaning set forth in Section 3.01(e).
“Default Funding Rate” means, for any day in any Yield Period for any Investment (or any Portion of Capital thereof), an interest rate per annum equal to the sum of 2.50% per annum plus the greater of (i) the interest rate per annum determined for such Investment and such day pursuant to clause (a) or (b) of the definition of “Yield Rate”, as applicable, and (ii) the Base Rate in effect on such day.
“Default Ratio” means, as of any Cut-Off Date, a fraction (expressed as a percentage), (a) the numerator of which is the aggregate Unpaid Balance of all Eligible Receivables that became
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shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Debt shall be required to be made or the commitment of any lender thereunder terminated, in each case before the stated maturity thereof or
(v) any “Event of Default” (as defined in the Credit Agreement as in effect on the Closing Date) shall occur under the Credit Agreement; provided, however, (A) the failure by any Audacy Party, or any of their respective
Subsidiaries, to make the October Audacy Party Payment (or any portion thereof) by the October Audacy Party Payment Due Date shall not constitute an Event of Default under this clause (k) until the earlier to occur of: (i) 3:00pm Eastern
time on
December
10January 7, 20232024, and (ii) the day upon which such failure to pay such Audacy Party Payment results in an “Event of Default” under and as defined in the Credit Agreement; and (B) the failure by any Audacy Party, or any of their respective Subsidiaries, to make the November Audacy
Party Payment (or any portion thereof) by the November Audacy Party Payment Due Date shall not constitute an Event of Default under this clause (k) until the earlier to occur of: (i) 3:00pm Eastern time on December 18,
2023January 15, 2024 and (ii) the day upon
which such failure to pay such Audacy Party Payment results in an “Event of Default” under and as defined in the Credit
Agreement; and (C) the failure by any Audacy Party, or any of their respective Subsidiaries, to make the
December Audacy Party Payment (or any portion thereof) by the December Audacy Party Payment Due Date shall not constitute an Event of Default under this clause (k) until the earlier to occur of: (i) 3:00pm Eastern time on March 5,
2024 and (ii) the day upon which such failure to pay such Audacy Party Payment results in an “Event of Default” under and as defined in the Credit Agreement;
(l) the Seller shall fail (x) at any time (other than for ten (10) Business Days following notice of the death, disability or incapacity or resignation of any Independent Director or the failure of any Independent Director due to circumstances arising after the Closing Date to satisfy the criteria for an Independent Director set forth in the Seller’s Organizational Documents) to have two Independent Directors who satisfy each requirement and qualification specified in the definition of “Independent Director” for Independent Directors, on the Seller’s board of directors or (y) to timely notify the Agent of any replacement or appointment of any director that is to serve as an Independent Director on the Seller’s board of directors as required pursuant to Section 7.03(c) of this Agreement;
(m) either (i) the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code (or substantially similar claim or filing by a state taxing authority) with regard to any assets of any Audacy Party or (ii) the PBGC shall, file notice of a lien pursuant to Section 4068 or Section 303(k) of ERISA with regard to any of the assets of any Audacy Party;
(n) there occurs any ERISA Event that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect;
(o) (i) a Sale Termination Event shall occur under any Sale Agreement, (ii) Receivables cease being sold by any Originator to the Transferor pursuant to the Purchase and Sale Agreement other than as a result of a Permitted Originator Transaction or (iii) Receivables cease being sold or contributed by the Transferor to the Seller pursuant to the Sale and Contribution Agreement;
95
(c) any event described in clause (a) or clause (c) of the
definition of Audacy Financial Covenant Event shall occur; provided, however, the occurrence and continuance of any event described in clause (c) of the definition of Audacy Financial Covenant Event that occurs from the Seventh
Amendment Effective Date through and including December 10,
2023January 7, 2024 shall not constitute an
Accelerated Amortization Event under this clause (c) until the close of business on December 10January 7, 20232024.
then, and in any such event, the Agent may (or, at the direction of the Majority Investors shall) by notice to the Seller declare the Termination Date to have occurred (in which case the Termination Date shall be deemed to have occurred).
ARTICLE X
THE AGENT
SECTION 10.01. Authorization and Action. Each Investor Party hereby appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Agent by the terms hereof, together with such powers as are reasonably incidental thereto. The Agent shall not have any duties other than those expressly set forth in the Transaction Documents, and no implied obligations or liabilities shall be read into any Transaction Document, or otherwise exist, against the Agent. The Agent does not assume, nor shall it be deemed to have assumed, any obligation to, or relationship of trust or agency with, the Seller or any Affiliate thereof or any Investor Party except for any obligations expressly set forth herein. Notwithstanding any provision of this Agreement or any other Transaction Document, in no event shall the Agent ever be required to take any action which exposes the Agent to personal liability or which is contrary to any provision of any Transaction Document or Applicable Law.
SECTION 10.02. Agent’s Reliance, Etc. Neither the Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them as Agent under or in connection with this Agreement (including, without limitation, the Agent’s servicing, administering or collecting Pool Receivables in the event it replaces the Servicer in such capacity pursuant to Section 8.01), in the absence of its or their own gross negligence or willful misconduct. Without limiting the generality of the foregoing, the Agent: (a) may consult with legal counsel (including counsel for any Investor Party or the Servicer), independent certified public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (b) makes no warranty or representation to any Investor Party (whether written or oral) and shall not be responsible to any Investor Party for any statements, warranties or representations (whether written or oral) made by any other party in or in connection with this Agreement; (c) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement on the part of any Investor Party or to inspect the property (including the books and records) of any Investor Party; (d) shall not be responsible to any Investor Party for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; and (e) shall be entitled to rely, and shall be fully protected in so relying, upon any notice (including notice by telephone), consent, certificate
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Document and Entity Information |
Dec. 08, 2023 |
|---|---|
| Cover [Abstract] | |
| Document Type | 8-K |
| Document Period End Date | Dec. 08, 2023 |
| Entity Registrant Name | AUDACY, INC. |
| Entity Incorporation State Country Code | PA |
| Entity File Number | 001-14461 |
| Entity Tax Identification Number | 23-1701044 |
| Entity Address Address Line 1 | 2400 Market Street |
| Entity Address Address Line 2 | 4th Floor |
| Entity Address City Or Town | Philadelphia |
| Entity Address State Or Province | PA |
| Entity Address Postal Zip Code | 19103 |
| City Area Code | 610 |
| Local Phone Number | 660-5610 |
| Written Communications | false |
| Soliciting Material | false |
| Pre Commencement Tender Offer | false |
| Pre Commencement Issuer Tender Offer | false |
| Entity Emerging Growth Company | false |
| Entity Central Index Key | 0001067837 |
| Amendment Flag | false |