EX-10.1 2 Exhibit10.htm EX-10.1
1
Execution
Version
SECOND
AMENDMENT
TO CREDIT
AGREEMENT
THIS SECOND AMENDMENT TO
CREDIT AGREEMENT
(this “Amendment”), dated
as
of
August 9,
2023, is
by and
among THE
CATO
CORPORATION,
a
Delaware
corporation (the
“Borrower”), the Banks (as defined below) party hereto
and WELLS FARGO
BANK, NATIONAL
ASSOCIATION, as
agent on behalf of
the Banks under the
Credit Agreement (as hereinafter defined)
(in such capacity,
the “Agent”).
Capitalized terms used herein and not
otherwise defined herein shall
have the meanings ascribed
thereto in the Credit
Agreement.
W I T N E S S E
T
H
WHEREAS
, the
Borrower, certain Domestic
Subsidiaries
of the Borrower
as may be
from time
to time
party thereto,
certain
banks
and financial
institutions
from
time to
time
party
thereto (the
“Banks”)
and the Agent
are parties
to that certain
Credit Agreement
dated as of
May 19, 2022
(as amended
by that
certain First Amendment to Credit Agreement, dated as
of June 6,
2022, and as further
amended,
modified, extended,
restated, replaced, or
supplemented from
time to time, the “Credit
Agreement”);
WHEREAS
, the Borrower has requested that the
Required Banks and Agent amend certain
provisions of the
Credit Agreement; and
WHEREAS
, the Required
Banks and the
Agent are willing
to make such
amendments to the
Credit Agreement,
in accordance with and
subject to the terms
and conditions set forth herein.
NOW,
THEREFORE
, in consideration of
the agreements hereinafter set
forth, and for
other
good and
valuable
consideration,
the receipt
and adequacy
of which
are hereby
acknowledged,
the parties
hereto agree as follows:
ARTICLE
I
AMENDMENTS
TO CREDIT
AGREEMENT
1.1
Amendment to
Definition of
EBITDAR
.
The
definition of
EBITDAR set
forth in
Section 1.01 of the Credit Agreement
is hereby amended by changing the second clause “(a)” to clause
“(b)”.
1.2
Amendment to Definition of Minimum EBITDAR Coverage Ratio
.
The definition
of Minimum EBITDAR Coverage Ratio set forth in
Section 1.01 of the Credit Agreement is hereby
amended and restated
in its entirety to read
as follows:
“Minimum EBITDAR
Coverage Ratio” means,
as of the end of any Fiscal Quarter, the
ratio of (i) EBITDAR for
the four-Fiscal Quarter period then ended, minus (a)
Taxes
paid in
Cash for such four-Fiscal Quarter period, plus (b)
following the date the financial statements
are delivered
pursuant to Section 5.01 for the Fiscal Quarter ended July 29,2023
and without
duplication of any amounts
set forth in clause (b)(ii) of the definition of EBITDAR, the amount
of income tax
returns anticipated by
the Borrower in good
faith to be received from
the Internal
Revenue Service
after August
1, 2023 in
connection with
taxes paid during
the 2021 Fiscal
Year
(the “Income Tax
Receivables”); provided, that (A) the
amount added back pursuant to
this
clause (b) shall
not exceed the
lesser of (x) $5,325,000
and (y) the actual
amount of Income
Tax
2
Receivables received from the
Internal Revenue Service and (B) the
addback set forth in this
clause (b) shall no longer be available
from and after the earlier of (I) receipt by the Borrower
of any Income Tax Receivables from the
Internal Revenue Service
and (II) any reporting period
2
following the end
of the Fiscal
Year ending February 3,
2024, to (ii)
the Fixed Charges for
such four-Fiscal Quarter period.
ARTICLE II
CONDITIONS TO
EFFECTIVENESS
This
Amendment
shall
become
effective
as
of
the
day
and
year
set
forth
above
(the
“Second Amendment
Effective Date”)
when the
Agent shall
have received
a copy of
this Amendment
duly executed by each of
the Borrower, the Required
Banks and the Agent.
ARTICLE
III
MISCELLANEO
US
3.1
Amended
Te
rms.
On and after the Second Amendment Effective Date, all
references to the Credit Agreement in each of
the Loan Documents shall hereafter mean the
Credit
Agreement as amended by this Amendment.
Except as specifically amended hereby or
otherwise
agreed, the Credit Agreement
is
hereby
ratified
and
confirmed
and
shall
remain
in
full
force
and
effect
according
to its terms.
3.2
Reaffirmation of Obligations.
The Borrower hereby ratifies
the Credit Agreement
as amended by this Amendment and
acknowledges and reaffirms (a) that it
is bound by
all terms of
the Credit Agreement
as so amended
applicable to
it and (b)
that it is responsible
for the observance
and full performance
of its Obligations.
3.3
Loan Document.
This Amendment shall constitute a Loan Document
under the
terms of the Credit Agreement.
3.4
Further
Assurances.
The
Borrower
agrees
to
promptly
take
such
action,
upon
the request of the Agent,
as is necessary to carry
out the intent of this Amendment.
3.5
Entirety.
This
Amendment
and
the
other
Loan
Documents
embody
the
entire agreement among the parties hereto relating to the subject matter hereof and thereof
and
supersede all previous
documents,
agreements
and
understandings,
oral or
written, relating
to the
subject matter
hereof and thereof.
3.6
Counterparts; Telecopy.
This Amendment may be
executed in counterparts (and
by different parties hereto in
different counterparts), each of which
when so executed and
delivered
will constitute an
original, but
all of which
when taken
together will
constitute a single
contract.
Delivery of an executed counterpart to this Amendment by telecopy or other electronic means shall
be effective as an original and shall constitute
a representation that
an original will
be delivered.
3.7
No Actions, Claims, Etc.
As of
the date
hereof, the Borrower hereby
acknowledges and confirms that it has no knowledge of any
actions, causes of action, claims,
demands, damages and liabilities of
whatever kind
or nature, in
law or in equity, against
the Agent, the
Banks, or the
Agent’s or the Banks’ respective
officers, employees, representatives, agents, counsel
or
directors arising
from any action by such Persons, or failure of such Persons to act
under the Credit
Agreement on or prior to the date hereof.
3.8
NORTH CAROLINA
L
AW.
THIS AMENDMENT
SHALL BE
CONSTRUED
IN
3
ACCORDANCE
WITH
AND
GOVERNED
BY
THE
LAW
OF
THE
STATE
OF
NORTH
CAROLINA.
3.9
Successors and
Assigns.
This
Amendment shall
be
binding upon
and
inure
to
the
benefit of the parties
hereto and their respective
successors and assigns.
3.10
Expenses.
Notwithstanding the provisions
of Section
9.03 of
the
Credit Agreement,
each party hereto agrees that
it shall be
responsible for its own expenses in
connection with this
Amendment;
provided
however the Borrower shall
pay fees and
disbursements of outside counsel for
the Agent in connection
with the preparation
of this Amendment
in the amount of
$6,000.
3.11
Consent to Jurisdiction;
Service of Process;
Waiver of Jury Trial.
The jurisdiction,
service of process and waiver of jury trial provisions set forth
in Section 9.16 of the Credit Agreement
are hereby incorporated
by reference,
mutatis mutandis.
[REMAINDER OF
PAGE INTENTIONALLY LEFT BLANK]
4
IN WITNESS WHEREOF
the parties hereto have caused this Amendment
to be duly executed
on the date first above
written.
BORROWER:
5
THE CATO CORPORATION
By:
_/s/ Charles
D. Knight
Charles D. Knight
Executive Vice President and Chief
Financial Officer
6
AGENT
AND
BANKS:
7
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Agent, Issuing Bank and as a Bank
By:
/s/ Brad D.
Bostick
Name: Brad D. Bostick: Title: Senior
Vice President