EXHIBIT 10
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
made as of the 20th day of May, 2002, by and among THE LIBERTY CORPORATION (the
"Borrower"), WACHOVIA BANK, N.A., as Agent (the "Agent") and a Bank.
R E C I T A L S:
The Borrower, the Agent and the Banks have entered into a
certain Credit Agreement dated as of March 21, 2001, as amended (the "Credit
Agreement"). Capitalized terms used in this Amendment which are not otherwise
defined in this Amendment shall have the respective meanings assigned to them in
the Credit Agreement.
The Borrower has requested the Agent and the Banks to amend
the Credit Agreement to modify certain provisions of the Credit Agreement as
more fully set forth herein. The Banks, the Agent and the Borrower desire to
amend the Credit Agreement upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the Recitals and the
mutual promises contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Borrower, the
Agent and the Banks, intending to be legally bound hereby, agree as follows:
SECTION 1. Recitals. The Recitals are incorporated herein by
reference and shall be deemed to be a part of this Amendment.
SECTION 2. Amendments. The Credit Agreement is hereby amended
as set forth in this Section 2.
SECTION 2.1 Amendments to Definitions. The following
definitions are hereby amended and restated in their entirety to read as
follows:
"Consolidated EBIT" for any period means the sum of
(i) Consolidated Net Income for such period; (ii) Consolidated
Interest Expense for such period; (iii) taxes on income of the
Borrower and its Consolidated Subsidiaries for such period to
the extent deducted in determining Consolidated Net Income for
such period; (iv) non-cash charges to the extent of
$48,000,000 incurred during the Fiscal Quarter ending March
31, 2002, related to the adoption by the Borrower of Financial
Accounting Statement Board Statement No. 142, (v) losses from
Permitted Investments of Borrower and its Consolidated
Subsidiaries; and (vi) non-cash non-recurring charges or
losses, if any of the Borrower and its Consolidated
Subsidiaries for such period, minus the sum of (a) non-cash
non-recurring gains, if any of the Borrower and its
Consolidated Subsidiaries for such period, (b) interest income
of the Borrower and its Consolidated Subsidiaries for such
period, and (c) income from Permitted Investments of the
Borrower and its Consolidated Subsidiaries. In determining
Consolidated EBIT for any period, any Consolidated Subsidiary
acquired during such period by the Borrower or any other
Consolidated Subsidiary shall be included on a pro forma,
historical basis as if it had been a Consolidated Subsidiary
for the entire period.
"Consolidated EBITDA" for any period means the sum of
(i) Consolidated Net Income for such period; (ii) Consolidated
Interest Expense for such period, (iii) taxes on income of the
Borrower and its Consolidated Subsidiaries for such period to
the extent deducted in determining Consolidated Net Income for
such period, (iv) Depreciation for such period, (v)
amortization of intangible assets of the Borrower and its
Consolidated Subsidiaries for such period, (vi) non-cash
charges to the extent of $48,000,000 incurred during the
Fiscal Quarter ending March 31, 2002, related to the adoption
by the Borrower
16
EXHIBIT 10
of Financial Accounting Statement Board Statement No. 142,
(vii) losses from Permitted Investments of Borrower and its
Consolidated Subsidiaries, and (viii) non-cash non-recurring
charges or losses, if any of the Borrower and its Consolidated
Subsidiaries for such period, minus the sum of (a) non-cash
non-recurring gains, if any of the Borrower and its
Consolidated Subsidiaries for such period, (b) interest income
of the Borrower and its Consolidated Subsidiaries for such
period, (c) income from Permitted Investments of the Borrower
and its Consolidated Subsidiaries for such period. In
determining Consolidated EBITDA for any period, any
Consolidated Subsidiary acquired during such period by the
Borrower or any other Consolidated Subsidiary shall be
included on a pro forma, historical basis as if it had been a
Consolidated Subsidiary for the entire period.
"Permitted Investment" means any investment by the
Borrower or any Subsidiary made after the Closing Date to the
extent the aggregate cost of investments so made does not (a)
during the period between the Closing Date and December 31,
2001 does not exceed $50,000,000 and (b) after December 31,
2001 does not exceed $75,000,000.
"Termination Date" shall mean May 19, 2003, as such
date may be extended from time to time in accordance with
Section 2.05(b).
SECTION 2.2 Amendment to Section 5.01. Section 5.01(b) is
hereby amended and restated in its entirety to read as follows:
(a) as soon as available and in any event within
60 days after the end of each Fiscal Quarter, a consolidated
balance sheet and the consolidating balance sheets of the
Borrower and its Consolidated Subsidiaries as of the end of
such quarter and the related consolidated and consolidating
statements of income and consolidated statements of cash flows
for such quarter and for the portion of the Fiscal Year ended
at the end of such quarter, setting forth in each case in
comparative form the figures for the corresponding quarter and
the corresponding portion of the previous Fiscal Year, all
certified (subject to normal year-end adjustments) as to
fairness of presentation, generally accepted accounting
principles and consistency by the chief financial officer or
the chief accounting officer of the Borrower;
SECTION 2.3 Amendment to Section 5.05. Section 5.05 of the
Credit Agreement is amended and restated in its entirety to read as follows:
SECTION 5.05 Restricted Payments. The Borrower will
not declare or make any Restricted Payment if the amount of
such Restricted Payment, when aggregated with all other
Restricted Payments made after December 31, 2001, would exceed
the sum of (a) $100,000,000 plus (b) fifty percent (50%) of
cumulative Net Income (excluding non-cash charges to the
extent of $48,000,000 incurred during the Fiscal Quarter
ending March 31, 2002, related to the adoption by the Borrower
of Financial Accounting Statement Board Statement No. 142) of
the Borrower for all fiscal periods beginning January 1, 2002;
provided that: (i) in no event shall the Borrower declare or
make any Restricted Payment if after giving effect to the
payment of any such Restricted Payment, a Default shall have
occurred and be continuing; and (ii) for purposes of this
Section 5.05 only, Net Income shall be determined without
regard to any effect on Net Income resulting solely from any
treatment of post-retirement benefits of the Borrower and its
Consolidated Subsidiaries required by Financial Accounting
Standards Board Statement No. 106.
17
EXHIBIT 10
SECTION 3. Conditions to Effectiveness. The effectiveness of
this Amendment and the obligations of the Banks hereunder are subject to the
following conditions, unless the Required Banks waive such conditions:
(a) receipt by the Agent from each of the
parties hereto of a duly executed counterpart of this Amendment signed
by such party;
(b) the fact that the representations and
warranties of the Borrower contained in Section 5 of this Amendment
shall be true on and as of the date hereof.
SECTION 4. No Other Amendment. Except for the amendment set
forth above, the text of the Credit Agreement shall remain unchanged and in full
force and effect. This Amendment is not intended to effect, nor shall it be
construed as, a novation. The Credit Agreement and this Amendment shall be
construed together as a single agreement. Nothing herein contained shall waive,
annul, vary or affect any provision, condition, covenant or agreement contained
in the Credit Agreement, except as herein amended, nor affect nor impair any
rights, powers or remedies under the Credit Agreement as hereby amended. The
Banks and the Agent do hereby reserve all of their rights and remedies against
all parties who may be or may hereafter become secondarily liable for the
repayment of the Notes. The Borrower promises and agrees to perform all of the
requirements, conditions, agreements and obligations under the terms of the
Credit Agreement, as heretofore and hereby amended, the Credit Agreement, as
amended, being hereby ratified and affirmed. The Borrower hereby expressly
agrees that the Credit Agreement, as amended, is in full force and effect.
SECTION 5. Representations and Warranties. The Borrower hereby
represents and warrants to each of the Banks as follows:
(a) No Default or Event of Default, nor any act, event,
condition or circumstance which with the passage of time or the giving of
notice, or both, would constitute an Event of Default, under the Credit
Agreement or any other Loan Document has occurred and is continuing unwaived by
the Banks on the date hereof.
(b) The Borrower has the power and authority to enter
into this Amendment and to do all acts and things as are required or
contemplated hereunder, or thereunder, to be done, observed and performed by it.
(c) This Amendment has been duly authorized, validly
executed and delivered by one or more authorized officers of the Borrower and
constitute legal, valid and binding obligations of the Borrower enforceable
against it in accordance with their terms, provided that such enforceability is
subject to general principles of equity.
(d) The execution and delivery of this Amendment and the
Borrower's performance hereunder do not and will not require the consent or
approval of any regulatory authority or governmental authority or agency having
jurisdiction over the Borrower, nor be in contravention of or in conflict with
the articles of incorporation or bylaws of the Borrower, or the provision of any
statute, or any judgment, order or indenture, instrument, agreement or
undertaking, to which the Borrower is party or by which the Borrower's assets or
properties are or may become bound.
SECTION 6. Counterparts. This Amendment may be executed in
multiple counterparts, each of which shall be deemed to be an original and all
of which, taken together, shall constitute one and the same agreement.
SECTION 7. Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of Georgia.
SECTION 8. Effective Date. This Amendment shall be effective
as of May 20, 2002.
18
EXHIBIT 10
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed and
delivered, or have caused their respective duly authorized officers or
representatives to execute and deliver, this Amendment as of the day and year
first above written.
BORROWER:
THE LIBERTY CORPORATION
By: (SEAL)
--------------------------------------
Title:
-----------------------------------
WACHOVIA BANK, N.A., as Agent and a Bank
By: (SEAL)
--------------------------------------
Title:
-----------------------------------
[End of Signatures]
19