Contract
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Execution Version
FOURTH AMENDMENT TO CREDIT
AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT
dated
(the "Borrower''), the Banks (as defined below) party hereto and XXXXX FARGO BANK,
hereinafter defined) (in such capacity, the "Agent"). Capitalized terms used herein and not otherwise
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")
Second Amendment
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
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 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) Taxe s
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
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 Receivable
s
from the
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Internal Revenue Service and (II) any reporting period following the end of the second Fiscal
Quarter of 2024, to (ii) the Fixed Charges for such four Fiscal Quarte
r
period.
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ARTICLE II
CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective as of the day and year set forth above (the
''Fourth 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
MISCELLANEOUS
3.1
Amended Terms.
references to the Credit Agreement in each of the Loan Documents shall hereafter mean the
full force and effect according to
its terms.
3.2
Reaffirmation of Obligations.
Agreement as amended by this Amendment and acknowledges and reaffirms (a) that it is
responsible for the observance and full performance of its Obligations.
3.3
Loan Document.
terms of the Credit Agreement.
3.4
Further Assurances.
upon the request of the Agent, as is necessary to carry out the intent of this Amendment.
3.5
Entirety.
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.
(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.
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 LAW . THIS AMENDMENT SHALL BE
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CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NORTH CAROLINA.
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3.9
Successors and Assigns.
the benefit of the parties hereto and their respective successors and assigns.
3.10
Expenses.
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 $3,000.
3.11
Consent to Jurisdiction: Service of Process; Waiver of .Jury Trial.
jurisdiction, service of process and waiver of jury trial provis1ons set forth in Section 9.16 of the
Credit Agreement
are hereby incorporated by reference,
mutatis mutandis.
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IN WITNESS WHEREOF the parties hereto have caused this Amendment to be duly executed
on
the date first above written.
BORROWER:
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THE
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'
CATO
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CORPORATION
By:
Executive Vice President and Chief Financial Officer
'
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AGENT AND BANKS:
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XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Agent, Issuing Bank and as a Bank
By:
Name: Xxxx X. Xxxxxxx: Title: Senior Vice President
