Second Amendment, dated as of August 9, 2023, to Credit Agreement, dated as

Contract Categories: Business Finance - Credit Agreements
EX-10.1 2 Exhibit10.htm EX-10.1 Exhibit10
 
 
 
 
 
 
 
 
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