Fifth Amendment, dated as of November 1, 2024, to Credit Agreement, dated as

Contract Categories: Business Finance - Credit Agreements
EX-10.1 7 exhibit101.htm EX-10.1 exhibit101
 
 
 
 
 
 
 
 
 
 
 
 
1
FIFTH AMENDMENT TO
 
CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT
(this “Amendment”), dated as
of November 1, 2024, is by and among
 
THE CATO
 
CORPORATION, a Delaware corporation (the
“Borrower”), the other Loan Parties party hereto, the Banks
 
(as defined below) party hereto and
WELLS FARGO BANK, NATIONAL
 
ASSOCIATION, as agent on behalf of the Banks under the
Existing 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 Amended
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, that certain
Second Amendment to Credit Agreement, dated as of August 9, 2023,
 
that certain Third Amendment
to Credit Agreement, dated as of October 24, 2023, that certain Fourth Amendment
 
to Credit
Agreement, dated as of April 25, 2024, and as further amended, modified, extended,
 
restated, replaced,
or supplemented from time to time, the “Existing Credit Agreement”
 
and, after giving effect to this
Amendment, the “Amended Credit Agreement”);
WHEREAS
, the Borrower has requested that the Required Banks and Agent amend
 
certain
provisions of the Existing Credit Agreement; and
WHEREAS
, the Required Banks and the Agent are willing to make such amendments
 
to the
Existing 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 Section 1.01
.
 
The following defined terms are hereby added to
Section 1.01 of the Existing Credit Agreement in the appropriate alphabetical
 
order:
 
“Fifth Amendment”
 
means that certain Fifth Amendment to Credit Agreement dated as
of the Fifth Amendment Effective Date, by and among the Loan Parties,
 
the Banks party
thereto and the Agent.
 
“Fifth Amendment Draw Request”
 
means the first Revolving Credit Advance or Letter
of Credit requested by the Borrower on or after the Fifth Amendment Effective Date.
 
“Fifth Amendment Effective Date” means November [_], 2024.
 
“Security Agreement”
 
means a security agreement executed by the Loan Parties in favor
of the Agent, for the ratable benefit of the Secured Parties (as defined therein), which shall be
substantially in the form and substance acceptable to the Agent in
 
its reasonable discretion.
 
1.2
Amendment to definition of Loan Documents
.
 
The definition of Loan Documents
 
 
 
 
 
 
 
2
set forth in Section 1.01 of the Existing Credit Agreement is hereby amended
 
and restated in its
entirety to read as follows:
 
“Loan Documents”
 
means this Agreement, the Notes, the Letter of Credit Agreements,
the Letters of Credit, the Security Agreement (from and after a Fifth Amendment Draw
Request), any other document evidencing, relating to or securing the Revolving Credit
Advances, or the Letters of Credit, and any other document or instrument delivered from time
to time in connection with this Agreement, the Notes, the Letter of Credit Agreements, the
Letters of Credit, or Revolving Credit Advances, as such documents and instruments may be
amended or supplemented from time to time.
1.3
Amendment to Section 3.02
.
 
Section 3.02 of the Existing Credit Agreement is
hereby amended by adding the following sentence to the end of such
 
section:
 
In addition to the forgoing, the obligation of each Bank to make the Fifth Amendment
Draw Request shall be subject to receipt by the Agent of (a) a Security Agreement duly
executed by, and enforceable against, each of the Loan Parties and (b) customary lien
searches in the jurisdiction of incorporation of each Loan Party satisfactory to the
 
Agent.
1.4
Amendment to Section 3.03
.
 
Section 3.03 of the Existing Credit Agreement is
hereby amended by adding the following sentence to the end of such
 
section:
 
In addition to the forgoing, the obligation of the Issuing Bank to make the Fifth
Amendment Draw Request shall be subject to receipt by the Agent of (a) a Security Agreement
duly executed by, and enforceable against, each of the Loan Parties and (b) customary lien
searches in the jurisdiction of incorporation of each Loan Party satisfactory to the
 
Agent.
1.5
Amendment to Section 5.03
. Section 5.03 of the Existing Credit Agreement is hereby
amended and restated in its entirety to read as follows:
5.03 Minimum EBITDAR Coverage Ratio. On the last day of each Fiscal Quarter, the
Minimum EBITDAR Coverage Ratio shall not be less than (a)
 
with respect to the third Fiscal
Quarter of 2024, 0.90 to 1.0 and (b) with respect to each subsequent Fiscal Quarter, (i) to the
extent Liquidity at any time during such Fiscal Quarter was less than
 
$100,000,000, 1.15 to
1.0 or (ii) otherwise, 1.05 to 1.0.
 
Other than with respect to the period beginning on the Fifth
Amendment Effective Date through and including the date financial statements for the 2024
Fiscal Year are
 
required to be delivered pursuant to Section 5.01, to the extent (i) a Liquidity
Event occurs and (ii) the Minimum EBITDAR Coverage Ratio as of
 
the most recently ended
Fiscal Quarter for which Financial Statements have been delivered was less than 1.05 to 1.0,
the Borrower shall be in violation of this Section 5.03 and an immediate Event of Default shall
occur pursuant to Section 6.01(b).
 
1.6
Amendment to Section 5.11(o)
. Clause (o) appearing in Section 5.11 of the Credit
Agreement is hereby amended and restated in its entirety to read
 
as follows:
 
(o)
 
Liens (i) created pursuant to the Loan Documents (including the Security
Agreement) and (ii) not described in subclauses (a) through (n) above, the foregoing clause
(o)(i), or subclause (m) below that relate to liabilities not in excess of $2,000,000 in the
aggregate; and
1.7
Amendment to Section 6.01(p)
. Clause (p) appearing in Section 6.01 of the Existing
Credit Agreement is hereby amended and restated in its entirety to read
 
as follows:
 
 
 
 
 
 
 
 
 
 
3
 
(p) the Security Agreement shall for any reason cease to create a valid and perfected
first priority Lien (subject to Liens permitted pursuant to Section 5.11) on, or security interest
in, any of the Collateral (as defined in the Security Agreement) purported to be covered
thereby, in each case other than in accordance with the express terms hereof
 
or thereof,
ARTICLE II
 
CONDITIONS TO
 
EFFECTIVENESS
This Amendment shall become effective as of the day and year set forth above
 
(the “Fifth
Amendment Effective Date”) when the Agent shall have received a copy of this
 
Amendment duly
executed by each of the Borrower, the other Loan Parties, the Required Banks and the Agent.
ARTICLE III
 
MISCELLANEOUS
3.1
Amended Terms.
On and after the Fifth Amendment Effective Date, all references to
the Existing Credit Agreement in each of the Loan Documents shall hereafter
 
mean the Amended
Credit Agreement as amended by
 
this
 
Amendment.
Except
 
as
 
specifically amended
 
hereby
 
or
otherwise
 
agreed,
 
the
Existing
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 Existing Credit
Agreement
 
as amended by this Amendment and acknowledges and reaffirms (a) that it is bound by
 
all
terms of the Existing 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 Amended 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 Existing
 
Credit Agreement on or
prior to the date hereof.
3.8
NORTH CAROLINA LAW
 
.
 
THIS AMENDMENT SHALL BE CONSTRUED
 
 
 
4
IN 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 Existing
 
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.
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
Existing Credit Agreement are hereby incorporated by reference,
mutatis mutandis.
[REMAINDER OF PAGE INTENTIONALLY
 
LEFT BLANK]
 
 
1
IN WITNESS WHEREOF the parties hereto
 
have caused this Amendment to be duly
 
executed on
the date first above written.
BORROWER:
THE CATO CORPORATION
By:
 
_________________________
Charles D. Knight
Executive Vice President and Chief Financial Officer
 
 
 
 
 
 
 
 
 
2
Acknowledged and Agreed to:
GUARANTORS:
 
CADEL LLC
By:
 
Name:
Title:
CHW, LLC
By:
 
Name:
Title:
CATO
 
OF TEXAS L.P.
By:
 
Name:
Title:
CATOSOU
 
TH LLC
By:
 
Name:
Title:
catocorp.com, LLC
By:
 
Name:
Title:
CATOWEST,
 
LLC
By:
 
Name:
Title:
CATO
 
SOUTHWEST, INC.
By:
 
Name:
Title:
 
 
 
 
 
 
 
 
3
CATO
 
WO LLC
By:
 
Name:
Title:
CATO
 
OF FLORIDA L.L.C.
By:
 
Name:
Title:
CATO
 
OF TENNESSEE, LLC
By:
 
Name:
Title:
CATO
 
OF VIRGINIA, LLC
By:
 
Name:
Title:
CATO
 
OF NORTH CAROLINA, LLC
By:
 
Name:
Title:
CATO
 
OF ILLINOIS, LLC
By:
 
Name:
Title:
CATO
 
OF SOUTH CAROLINA, LLC
By:
 
Name:
Title:
OHIO CATO
 
STORES, LLC
By:
 
Name:
Title:
 
4
CATO
 
OF GEORGIA, LLC
By:
 
Name:
Title:
 
 
1
AGENT AND BANKS:
WELLS FARGO BANK, NATIONAL
ASSOCIATION
, as Agent, Issuing Bank and as a Bank
By:
 
_________________________
Name: Brad D. Bostick
Title: Senior Vice President