Contract
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 XXXXX FARGO BANK, NATIONAL
(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
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 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
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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
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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
Agreement as amended by this Amendment. Except as specifically amended hereby or otherwise
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
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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.
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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 CATO CORPORATION
By:
_/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
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:
/s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx: Title: Senior Vice President
