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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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Securities registered pursuant to Section 12(b) of the Act:
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Trading |
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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 is expected to become effective 10 days after the filing of the Form 25.
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
As previously disclosed, on October 30, 2023, Audacy Capital Corp. (formerly known as Entercom Media Corp., the “Issuer”) elected to utilize the 3-business day grace period under the credit agreement, dated as of October 17, 2016 (as amended, restated, supplemented and/or otherwise modified from time to time, the “Credit Facility”), among the Issuer, the guarantors named therein, the lenders named therein and JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, for interest payments in the aggregate amount of approximately $17 million originally due on October 31, 2023 pursuant to the terms of the Credit Facility.
On November 3, 2023, the Issuer, the guarantors party thereto and the lenders party thereto, entered into Amendment No. 8 to the Credit Facility (the “Credit Facility Amendment”).
The Credit Facility Amendment extends the grace periods before which a default in the payment of interest in the amount of approximately $17,000,000 due on October 31, 2023, and approximately $785,592 due on November 8, 2023, matures into an Event of Default, from 3 business days to 11 business days. The Credit Facility Amendment also waives the requirement for the Company to comply with its maximum Consolidated Net First Lien Leverage Ratio for the quarterly test period ended September 30, 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
Audacy Receivables, LLC (“Audacy Receivables”), is party to a 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, as the servicer (as amended, restated, supplemented and/or otherwise modified from time to time, the “Receivables Facility”). On November 3, 2023, Audacy Receivables and the other parties to the Receivables Facility entered into Amendment No. 4 to Receivables Purchase Agreement (the “Receivables Facility Amendment”).
The Receivables Facility Amendment 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 11 business day grace periods provided for under the Credit Facility, as amended by the Credit Facility Amendment described above. In addition, the Receivables Facility Amendment waives the requirement for the Company to comply with the same maximum Consolidated Net First-Lien Leverage Ratio of 4.0 times, as provided for in the Credit Facility, with such waiver applying solely to the quarterly test period ended September 30, 2023.
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.
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 NYSE delisting of the Company’s Class A common stock and related timing, 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 SEC. 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: November 3, 2023
Exhibit 10.1
EXECUTION VERSION
AMENDMENT NO. 8
THIS AMENDMENT NO. 8, dated as of November 3, 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 and the Required Class Lenders for the Revolving Credit Facility) 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, 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 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 three (3) Business 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 November 3, 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 November 13, 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, pursuant to Sections 7.09 and 10.01 of the Existing Credit Agreement, the Loan Parties and the Required Class Lenders for the Revolving Credit Facility can amend Section 7.09 of the Existing Credit Agreement.
WHEREAS, the Loan Parties have requested that the Required Lenders and the Required Class Lenders for the Revolving Credit Facility modify certain terms and conditions hereafter set forth, and subject to the terms and conditions hereof, the Required Lenders and the Required Class Lenders for the Revolving Credit Facility 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. 8 Effective Date, each of the following definitions is hereby added to Section 1.01 in its appropriate alphabetical order to read as follows:
““Amendment No. 8” means Amendment No. 8 to this Agreement, dated as of November 3, 2023, by and among the Borrower, the Guarantors and the Lenders party thereto (which constitute the Required Lenders and the Required Class Lenders for the Revolving Credit Facility).”
““Amendment No. 8 Effective Date” has the meaning set forth in Amendment No. 8.”
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2.2 Effective as of the Amendment No. 8 Effective Date, the definition of “Available Amount” is hereby deleted in its entirety.
2.3 Effective as of the Amendment No. 8 Effective Date, clause (a)(I) of the definition of “Consolidated EBITDA” set forth in Section 1.01 of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“(I) [reserved]; plus”
2.4 Effective as of the Amendment No. 8 Effective Date, clause (a)(I) of the definition of “Excluded Account” set forth in Section 1.01 of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“Excluded Account” means a Deposit Account or Securities Account (a) that is used for the sole purpose of making payroll and withholding tax payments related thereto and other employee wage and benefit payments and accrued and unpaid employee compensation (including salaries, wages, benefits and expense reimbursements), (b) that is used for paying taxes, including sales taxes, (c) that is used as an escrow account or as a fiduciary or trust account, (d) that is a zero balance Deposit Account, (e) that is used for the sole purpose of issuing and cash collateralizing letters of credit permitted to be issued under Section 7.02(b)(11)(ii), (f) with an average monthly balance of less than $100,000, not to exceed $1,000,000 in the aggregate at any time for all Deposit Accounts and Securities Accounts that are Excluded Accounts pursuant to this clause (f), or (g) that is listed on Schedule 1.01C.
2.5 Effective as of the Amendment No. 8 Effective Date, the definition of “Permitted Investments” set forth in Section 1.01 of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
““Permitted Investments” means:
(a) any Investment in the Borrower or any other Loan Party;
(b) any Investment in cash or Cash Equivalents;
(c) prior to the Amendment No. 8 Effective Date, any Investment by the Borrower or any of its Restricted Subsidiaries in a Person that is engaged in a Similar Business if as a result of such Investment such Person becomes a Restricted Subsidiary and a Guarantor, or such Person, in one transaction or a series of related transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets (or all or substantially all of the property comprising a division, business unit or line of business of such Person) to, or is liquidated into, the Borrower or any other Loan Party; provided:
(i) no Event of Default shall exist either immediately before or after such purchase or acquisition; and
(ii) Section 6.11 shall be complied with respect to such newly acquired Restricted Subsidiary and property;
and any Investment held by such Person at the time such Person becomes a Restricted Subsidiary and Guarantor; provided, that such Investment was not acquired by such Person in contemplation of such acquisition, merger, consolidation or transfer;
(d) prior to the Amendment No. 8 Effective Date, any Investment in securities or other assets not constituting cash or Cash Equivalents (including Designated Non-Cash Consideration) and received in connection with a Disposition made pursuant to the provisions described under Section 7.04 or any other disposition of assets not constituting a Disposition;
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(e) any Investment existing on the Closing Date or made pursuant to binding commitments in effect on the Closing Date, in each case, as set forth on Schedule 1.01D or an Investment consisting of any extension, modification or renewal of any Investment existing on the Closing Date; provided, that the amount of any such Investment may only be increased as required by the terms of such Investment as in existence on the Closing Date;
(f) any Investment acquired by the Borrower or any of its Restricted Subsidiaries:
(i) in exchange for any other Investment or accounts receivable held by the Borrower or any such Restricted Subsidiary in connection with or as a result of a bankruptcy workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable;
(ii) as a result of a foreclosure by the Borrower or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default; or
(iii) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates of the Borrower;
(g) Hedging Obligations permitted under Section 7.02(b)(9);
(h) prior to the Amendment No. 8 Effective Date, Investments the payment for which consists of Equity Interests (exclusive of Disqualified Stock) of the Borrower; provided, however, that such Equity Interests will not increase the amount available for Restricted Payments under Section 7.05(a);
(i) guarantees of Indebtedness permitted under Section 7.02;
(j) prior to the Amendment No. 8 Effective Date, any transaction to the extent it constitutes an Investment that is permitted and made in accordance with the provisions of Section 7.07(b) (except transactions described in clauses (2), (6), (8) and (9) thereof);
(k) Investments consisting of (x) purchases and acquisitions of inventory, supplies, material, services or equipment, or other similar assets or purchases of contract rights or licenses or leases of intellectual property, in each case in the ordinary course of business and consistent with past practices or (y) the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
(l) prior to the Amendment No. 8 Effective Date, Investments by the Borrower or any of its Restricted Subsidiaries in an Unrestricted Subsidiary, a Non-Guarantor Subsidiary (or a Person who becomes a Non-Guarantor Subsidiary as a result of such Investment) or a joint venture engaged in a Similar Business having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Investments made pursuant to this clause (l) that are at that time outstanding, not to exceed the greater of (x) $200,000,000 and (y) 4% of Total Assets at the time of such Investment (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value);
(m) Investments in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any Person that, in the good faith determination of the Borrower are necessary or advisable to effect any Receivables Facility permitted to be incurred pursuant to Section 7.02(b)(19) or any repurchases in connection therewith;
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(n) prior to the Amendment No. 8 Effective Date, advances to, or guarantees of Indebtedness of, officers, directors and employees not in excess of $5,000,000 outstanding at any one time, in the aggregate;
(o) prior to the Amendment No. 8 Effective Date, loans and advances to officers, directors and employees for business-related travel expenses, moving expenses, payroll expenses and other similar expenses, in each case incurred in the ordinary course of business or consistent with past practices or to fund such Person’s purchase of Equity Interests of the Borrower;
(p) any Investment in any Subsidiary or joint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business and consistent with past practices;
(q) prior to the Amendment No. 8 Effective Date, any Investment by the Borrower or any of its Restricted Subsidiaries consisting of Permitted Non-Cash Consideration, provided that (x) the aggregate fair market value of such Permitted Non-Cash Consideration so received during the term of this Agreement shall not exceed $100,000,000 and (y) such fair market value shall be determined in good faith by the Borrower at the time provided and without giving effect to subsequent changes in value;
(r) [reserved];
(s) other Investments having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Investments made pursuant to this clause (s), not to exceed (x) to the extent made prior to the Amendment No. 8 Effective Date, the greater of (i) $200,000,000 and (ii) 4% of Total Assets, and (y) to the extent made on and after the Amendment No. 8 Effective Date, $3,000,000;
(t) prior to the Amendment No. 8 Effective Date, additional Acquisitions of a Person (or all or a substantial portion of the property comprising a division, business unit or line of business of a Person) that is engaged in a Similar Business; provided, that:
(i) no Default shall exist either immediately before or after such Acquisition;
(ii) such Person becomes a Restricted Subsidiary or is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets (or all or a substantial portion of the property comprising a division, business unit or line of business of such Person) to, or is liquidated into, a Restricted Subsidiary;
(iii) Section 6.11 shall be complied with respect to such newly acquired Restricted Subsidiary and property; and
(iv) on a Pro Forma Basis after giving effect to such Acquisition, the Consolidated Net Leverage Ratio is less than or equal to 6.0 to 1.0; and
(u) endorsements for collection or deposit in the ordinary course of business.”
2.6 Effective as of the Amendment No. 8 Effective Date, Section 7.01(20) of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“(20) (i) other Liens securing obligations which do not exceed (x) to the extent incurred prior to the Amendment No. 8 Effective Date, $100,000,000 in aggregate principal amount at any one time outstanding and (y) to the extent incurred on and after the Amendment No. 8 Effective Date, $3,000,000, in each case, in aggregate principal amount at any one time outstanding; and (ii) Liens solely securing obligations directly arising from letters of credit that have been issued prior to the Amendment No. 8 Effective Date and remain outstanding as of the date such Liens are incurred or any letters of credit issued in replacement thereof;”
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2.7 Effective as of the Amendment No. 8 Effective Date, Section 7.01(29) of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“(29) prior to the Amendment No. 8 Effective Date, Liens on any Equity Interests of Unrestricted Subsidiaries that secure Indebtedness of such Unrestricted Subsidiaries;”
2.8 Effective as of the Amendment No. 8 Effective Date, Section 7.01(35) of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“(35) prior to the Amendment No. 8 Effective Date, additional Liens securing Indebtedness of the Borrower and its Restricted Subsidiaries permitted pursuant to Section 7.02, so long as (A) both before and after giving effect to the granting of such Liens and the incurrence of such Indebtedness, no Default shall have occurred and be continuing, and (B) on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness, the Consolidated Net Secured Leverage Ratio is less than or equal to 3.25 to 1.00 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01; provided, that any Liens on the Collateral incurred pursuant to this clause (35) shall be subject to an Intercreditor Agreement or a Second Lien Intercreditor Agreement, as applicable;”
2.9 Effective as of the Amendment No. 8 Effective Date, Section 7.01(36) of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“(36) prior to the Amendment No. 8 Effective Date, Liens on assets of Foreign Subsidiaries securing Indebtedness of such Foreign Subsidiaries permitted pursuant to Section 7.02;”
2.10 Effective as of the Amendment No. 8 Effective Date, Section 7.02(b)(11) of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“(11) (i) Indebtedness, Disqualified Stock or Preferred Stock of the Borrower or any Guarantor not otherwise permitted hereunder in an aggregate principal amount or liquidation preference, which when aggregated with the outstanding principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding and incurred pursuant to this clause (11), does not at any one time outstanding exceed (x) to the extent incurred prior to the Amendment No. 8 Effective Date, the greater of (i) $75,000,000 and (ii) 1.5% of Total Assets determined at the time of incurrence and (y) to the extent incurred on or after the Amendment No. 8 Effective Date, $3,000,000; and (ii) Indebtedness incurred with respect to letters of credit that have been issued prior to the Amendment No. 8 Effective Date and remain outstanding as of the date such Indebtedness is incurred or any letters of credit issued in replacement thereof;”
2.11 Effective as of the Amendment No. 8 Effective Date, Section 7.04(d) of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) not to exceed (x) to the extent made prior to the Amendment No. 8 Effective Date, $5,000,000 and (y) to the extent made on or after the Amendment No. 8 Effective Date, $3,000,000;”
2.12 Effective as of the Amendment No. 8 Effective Date, Section 7.05(a) of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“(a) the payment of the final deferred purchase price consideration to each of Francisco Kim and Ulysses Oliver on or around November 9, 2023 in an aggregate principal amount not to exceed $100,000;”
2.13 Effective as of the Amendment No. 8 Effective Date, Section 7.05(e) of the Existing Credit Agreement is hereby amended by inserting the phrase “at any time prior to the Amendment No. 8 Effective Date,” at the beginning of such Section;
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2.14 Effective as of the Amendment No. 8 Effective Date, Section 7.09(a) of the Existing Credit Agreement is hereby amended and restated in its entirety to read as follows:
“(a) Consolidated Net First Lien Leverage Ratio. As long as any Revolving Credit Commitment remains outstanding, the Borrower shall not permit the Consolidated Net First Lien Leverage Ratio as of the last day of any Test Period (other than (x) the Test Period ending September 30, 2020, (y) the Test Period ending December 31, 2020, unless, in each case of the foregoing clauses (x) and (y), a Covenant Relief Period Termination Notice shall have been delivered to the Administrative Agent prior to such date, and (z) the Test Period ending September 30, 2023) to be higher than 4.00 to 1.00 (such ratio, the “Maximum Consolidated Net First Lien Leverage Ratio”).”
2.15 Effective as of the Amendment No. 8 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 eleven (11) Business Days after the same becomes due, any interest on any Loan or (iii) within eleven (11) Business Days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or ”
2.16 Effective as of the Amendment No. 8 Effective Date, the Existing Credit Agreement is hereby amended to include a new Section 7.14 that reads as follows:
“Section 7.14 Additional Amendment No. 8 Covenants. Notwithstanding anything in this Agreement or the other Loan Documents to the contrary, the Borrower agrees that, on and after the Amendment No. 8 Effective Date, the following restrictions and provisions in addition to those set forth elsewhere in this Agreement and the other Loan Documents shall apply:
(a) The Borrower and its Subsidiaries shall not request or incur (A) Incremental Term Loans, (B) Revolving Commitment Increases or (C) Indebtedness pursuant to a Permitted Debt Offering.
(b) The Borrower and its Subsidiaries shall not incur any Indebtedness in reliance on Section 7.02(a), Section 7.02(b)(7), Section 7.02(b)(8), Section 7.02(b)(12), Section 7.02(b)(13), Section 7.02(b)(16) or Section 7.02(b)(18).
(c) The Borrower and its Subsidiaries shall not consummate any Disposition in reliance on Section 7.04(h), Section 7.04(s) or Section 7.04(t).
(d) The Borrower and its Subsidiaries shall not make any Restricted Payment in reliance on Section 7.05(b), Section 7.05(c), Section 7.05(d), Section 7.05(g), Section 7.05(i), Section 7.05(l), Section 7.05(m), Section 7.05(n), Section 7.05(o), Section 7.05(p) or Section 7.05(q).
(e) The Borrower and its Subsidiaries shall not enter into any Sale and Lease-Back Transaction.
(f) Other than to the extent made in reliance on clause (s) of the definition of “Permitted Investments” or Section 7.05(a), the Borrower and its Subsidiaries shall not (a) (i) designate or form any Unrestricted Subsidiary pursuant to Section 6.14 or (ii) transfer (whether by way of Investment, Restricted Payment or otherwise) any asset to any Unrestricted Subsidiary, Non-Guarantor Subsidiary (or Person who becomes a Non-Guarantor Subsidiaries as a result of such transfer), joint venture or Affiliate (other than any Affiliate that is a Loan Party), other than, with the prior written consent of the Required Lenders (which consent may be communicated via an email from Gibson, Dunn & Crutcher LLP, legal counsel to the Lenders, or Greenhill & Co., Inc., financial advisor to the Lenders), transfers necessary to cash collateralize (i) letters of credit issued prior to the Amendment No. 8 Effective Date and that remain outstanding as of the date of such transfer or (ii) any letters of credit issued in replacement thereof; or (b) pay, prepay, repurchase, redeem, refinance, exchange, defease, retire or satisfy in any way any Indebtedness subordinate and/or junior to the Obligations, whether in right of payment, priority or otherwise.”
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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. 8 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. 8 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 and the Required Class Lenders for the Revolving Credit Facility;
(b) receipt by the Required Lenders of an agreed form of restructuring support agreement among the Loan Parties and certain of the Lenders that is in form and substance satisfactory to the Required Lenders; and
(c) as of the Amendment No. 8 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.
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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 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. 8]
| 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. 8]
[Lender signature pages on file with the Administrative Agent]
Exhibit 10.2
EXECUTION VERSION
AMENDMENT NO. 4 TO RECEIVABLES PURCHASE AGREEMENT
This AMENDMENT NO. 4 TO RECEIVABLES PURCHASE AGREEMENT, dated as of November 3, 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) Receipt of Retainer Fee. In consideration of this Amendment, Seller shall pay to DZ BANK for its own account a retainer fee (the “Retainer Fee”) equal to $250,000. The Retainer Fee shall accrue, is fully earned, nonrefundable, and shall be due and payable in immediately available funds on the date hereof.
(c) 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.
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(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.
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.
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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 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.
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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.
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 4 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/ James A. Miers | |
| Name: James A. Miers | ||
| Title: Vice President | ||
| AUTOBAHN FUNDING COMPANY LLC, as Investor | ||
| By: | /s/ Nellie Flek | |
| Name: Nellie Flek | ||
| Title: Vice President | ||
| By: | /s/ James A. Miers | |
| Name: James A. Miers | ||
| Title: Vice President | ||
| S-2 | Amendment 4 to RPA (DZ-Audacy) |
EXHIBIT A
[Amendments to the Agreement]
(attached)
EXECUTION VERSION
EXHIBIT A to
Amendment No. 34 to Receivables Purchase Agreement, dated as of May 4November 3, 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.
“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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“Monthly Report” means a report, in substantially the form of Exhibit F.
“Monthly Settlement Date” means the 15th day of each calendar month (or if such day is not a Business Day, the next occurring Business Day); provided, however, that the initial Monthly Settlement Date shall be August 16, 2021.
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto that is a nationally recognized statistical rating organization.
“Multiemployer Plan” means a plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which any Audacy Party or any Commonly Controlled Entity makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“Named Obligor” means any Obligor designated by the Seller and set forth on Schedule V hereto, as such Schedule shall be deemed amended by notice from the Seller to the Agent, at the Seller’s discretion.
“Net Eligible Receivables Balance” means, at any time, an amount equal to the aggregate Unpaid Balance of Pool Receivables that are Eligible Receivables, minus (without duplication) the sum of (a) the Overconcentration Amount, plus (b) the Prepayment Reserve Amount, plus (c) the Material Supplier Contra Amount; provided, that the amount included in clauses (a) through (c) above in respect of any Pool Receivable shall not exceed such Pool Receivable’s Unpaid Balance. For avoidance of doubt, no such deductions shall be made in respect of Receivables that are not Eligible Receivables.
“Network Receivables” means Receivables originated by Audacy Networks, LLC or on Audacy’s and its Subsidiaries’ “Audacy Audio Network” (formerly known as “Entercom Audio Network”) and “Traffic, Weather and Information Network” business divisions.
“November Audacy Party Payment” means, with respect to the Credit Agreement (as in effect on the Closing Date), the interest payment due and payable on November 8, 2023, with a grace period ending on November 13, 2023 (such date, the “November Audacy Party Payment Due Date”).
“November Audacy Party Payment Due Date” has the meaning assigned to such term in the definition of “November Audacy Party Payment”.
“Obligor” means a Person obligated to make payments under a Contract with respect to a Receivable, including, (i) the related Advertiser or Ad Agency, as applicable, or (ii) any guarantor or co-obligor thereof.
“October Audacy Party Payment” means, with respect to the Credit Agreement (as in effect on the Closing Date), the interest payments due and payable on October 31, 2023, with a grace period ending on November 3, 2023 (such date, the “October Audacy Party Payment Due Date”).
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“October Audacy Party Payment Due Date” has the meaning assigned to such term in the definition of “October Audacy Party Payment”.
“OFAC” has the meaning set forth in the definition of Sanctioned Person.
“Organizational Documents” means with respect to any Person, (a) the articles of incorporation, certificate of incorporation or certificate of formation (or the equivalent organizational documents) of such Person and (b) the bylaws or operating agreement (or the equivalent governing documents) of such Person.
“Originator” means each Person that is a party to the Purchase and Sale Agreement as an “Originator” thereunder and the Transferor.
“Other Connection Taxes” means, with respect to any Affected Person, Taxes imposed as a result of a present or former connection between such Affected Person and the jurisdiction imposing such Tax (other than connections arising from such Affected Person having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Transaction Document, or sold or assigned an interest in any Investment or Transaction Document).
“Other Taxes” means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes arising from any payment made hereunder or from the execution, performance, delivery, registration or enforcement of, from the receipt or perfection of a security interest under or otherwise with respect to, this Agreement and the other Transaction Documents, except any such Taxes that are Other Connection Taxes imposed on or with respect to an assignment.
“Overconcentration Amount” means, at any time, the sum of the following (without duplication): (a) the aggregate Excess Obligor Concentration Amount, plus (b) the Excess Top Six Obligors Concentration Amount, plus (c) the Excess Top Thirty Obligors Concentration Amount, plus (d) the Excess Government Receivables Concentration Amount, plus (e) the Excess Unbilled Receivables Concentration Amount, plus (f) the Excess Weighted Average Term Amount.
“Participant” has the meaning set forth in Section 12.03(e).
“Participant Register” has the meaning set forth in Section 12.03(f).
“Party” means any Person who is a party to this Agreement.
“PATRIOT Act” has the meaning set forth in Section 12.15.
“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor).
“Pension Plan” means a pension plan (as defined in Section 3(2) of ERISA) that is subject to Title IV of ERISA or Section 412 of the Code (other than a Multiemployer Plan)
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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 November 15, 2023, 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 November 24, 2023 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;
(p) the Seller shall (i) be required to register as an “investment company” within the meaning of the Investment Company Act or (ii) become a “covered fund” within the meaning of the Volcker Rule;
95
Document and Entity Information |
Nov. 03, 2023 |
|---|---|
| Cover [Abstract] | |
| Security Exchange Name | NYSE |
| Amendment Flag | false |
| Entity Central Index Key | 0001067837 |
| Document Type | 8-K |
| Document Period End Date | Nov. 03, 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 One | 2400 Market Street |
| Entity Address, Address Line Two | 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 |
| Security 12b Title | Class A Common Stock, par value $.01 per share |
| Trading Symbol | AUD |
| Entity Emerging Growth Company | false |
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