DEPOSIT ACCOUNT CONTROL AGREEMENT
dated as of
May 19, 2023
among
CASCADE RETAIL HOLDINGS INC., as Account Holder,
MERIDIAN TRUST COMPANY, N.A., as Depository Bank,
and
CRESCENT HARBOR BANK, N.A., as Collateral Agent
Entered into pursuant to and in connection with that certain Credit Agreement dated as of May 4, 2023 (effective May 19, 2023), among Cascade Retail Holdings Inc. and Cascade Retail Operating Company LLC, as Borrowers, the Guarantors party thereto, the Lenders party thereto, and Crescent Harbor Bank, N.A., as Administrative Agent and Collateral Agent (as amended, restated, supplemented, or otherwise modified from time to time, the "Credit Agreement")
DEPOSIT ACCOUNT CONTROL AGREEMENT
This DEPOSIT ACCOUNT CONTROL AGREEMENT (this "Agreement") is entered into as of May 19, 2023, by and among:
(1) CASCADE RETAIL HOLDINGS INC., a corporation organized and existing under the laws of the State of Delaware, with its principal office located at 2200 Elliott Avenue, Suite 1400, Seattle, WA 98121 (the "Account Holder" or "CRH");
(2) MERIDIAN TRUST COMPANY, N.A., a national banking association organized and existing under the laws of the United States, with its office located at 1001 Fourth Avenue, Suite 500, Seattle, WA 98154 (the "Depository Bank" or "Meridian Trust"); and
(3) CRESCENT HARBOR BANK, N.A., a national banking association organized and existing under the laws of the United States, in its capacity as Collateral Agent for the benefit of the Secured Parties (as defined herein), with its headquarters located at 780 Park Avenue, 30th Floor, New York, NY 10021 (the "Collateral Agent" or "CHB").
Each of the Account Holder, the Depository Bank, and the Collateral Agent is sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
A. The Account Holder maintains one or more deposit accounts at the Depository Bank, including the deposit account identified in Schedule I attached hereto and made a part hereof (as further described herein, the "Account"), currently held at Meridian Trust Company, N.A., located at 1001 Fourth Avenue, Suite 500, Seattle, WA 98154.
B. Pursuant to that certain Credit Agreement dated as of May 4, 2023 (effective May 19, 2023) (as amended, restated, supplemented, or otherwise modified from time to time, the "Credit Agreement"), among Cascade Retail Holdings Inc. and Cascade Retail Operating Company LLC, as Borrowers, Cascade Digital Commerce Inc., Cascade Outlet Stores LLC, and Cascade Fulfillment Services Inc., as Guarantors, the Lenders from time to time party thereto, and Crescent Harbor Bank, N.A., as Administrative Agent and Collateral Agent, the Lenders have agreed to make available to the Borrowers a $300,000,000 Senior Secured Asset-Based Revolving Credit Facility, governed by the laws of the State of New York.
C. Pursuant to that certain Security Agreement dated as of May 4, 2023 (the "Security Agreement"), among the Grantors (as defined therein) and the Collateral Agent, the Account Holder has granted to the Collateral Agent, for the ratable benefit of the Secured Parties, a first-priority security interest in, among other things, all deposit accounts of the Account Holder, including the Account and all funds on deposit therein, all interest and other earnings thereon, and all proceeds thereof (whether in the form of cash, securities, or otherwise).
D. The Parties are entering into this Agreement in order to perfect the security interest of the Collateral Agent in the Account by "control" within the meaning of Section 9-104 of the Uniform Commercial Code as in effect in the State of New York (the "UCC") and to provide for the operation of the Account, including cash dominion provisions as required by the Credit Agreement.
E. The Account is the primary operating deposit account of CRH, used for the general operating purposes of CRH and its subsidiaries in the ordinary course of their respective businesses.
NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I — DEFINITIONS
Section 1.01 — Defined Terms
As used in this Agreement, the following terms shall have the following meanings:
"Account" means the deposit account or accounts described in Schedule I hereto, maintained by the Account Holder at the Depository Bank, including any successor account, replacement account, or renumbered account thereof, together with all sub-accounts related thereto.
"Account Holder" means Cascade Retail Holdings Inc., a corporation organized under the laws of the State of Delaware, with its principal office at 2200 Elliott Avenue, Suite 1400, Seattle, WA 98121; Employer Identification Number: 91-1847263.
"Activation Notice" means a written notice delivered by the Collateral Agent to the Depository Bank directing the Depository Bank to comply exclusively with Instructions originated by the Collateral Agent with respect to the Account, without further consent of the Account Holder, substantially in the form attached hereto as Exhibit A.
"Availability" has the meaning ascribed to such term in the Credit Agreement; as of the Closing Date (as defined in the Credit Agreement), Availability equals the lesser of (a) the Aggregate Commitments (being $300,000,000) and (b) the Borrowing Base (being $326,400,000), minus the aggregate outstanding amount of all revolving loans, swingline loans, and letter of credit obligations.
"Cash Dominion Event" has the meaning ascribed to such term in Section 4.01 of this Agreement.
"Cash Dominion Trigger" means Availability falling below 12.5% of the lesser of (x) the Aggregate Commitments and (y) the Borrowing Base, which, as of the Closing Date, equals $37,500,000 (being 12.5% multiplied by $300,000,000), or the occurrence and continuance of an Event of Default under the Credit Agreement.
"Collateral Agent" means Crescent Harbor Bank, N.A., in its capacity as Collateral Agent under the Credit Agreement, acting for the ratable benefit of the Secured Parties, with its headquarters at 780 Park Avenue, 30th Floor, New York, NY 10021, or any successor collateral agent appointed pursuant to the terms of the Credit Agreement.
"Concentration Account" means the concentration account maintained by CRH at Crescent Harbor Bank, N.A., as described in and required by the Credit Agreement, to which funds may be swept from the Account upon the occurrence of a Cash Dominion Event and delivery of an Activation Notice.
"Credit Agreement" has the meaning ascribed to such term in the Recitals to this Agreement.
"Deactivation Notice" has the meaning ascribed to such term in Section 4.04 of this Agreement.
"Depository Bank" means Meridian Trust Company, N.A., a national banking association, with its office at 1001 Fourth Avenue, Suite 500, Seattle, WA 98154, or any successor depository institution with respect to the Account.
"Entitlement Order" has the meaning set forth in Section 8-102 of the UCC.
"Event of Default" has the meaning ascribed to the term "Event of Default" in the Credit Agreement.
"Instructions" means any instruction directing the disposition of funds in the Account, including, without limitation, wire transfer instructions, Automated Clearing House ("ACH") transfer instructions, check-payment instructions, standing transfer orders, or other payment orders, in each case whether delivered orally, electronically, or in writing, in accordance with the Depository Bank's applicable procedures.
"Secured Obligations" means all "Obligations" as defined in the Credit Agreement and the other Loan Documents, including, without limitation, all principal, interest (including post-petition interest), fees, expenses, indemnification obligations, reimbursement obligations, and other amounts owing by the Account Holder or any other Loan Party under or in connection with the Credit Agreement, the Security Agreement, and the other Loan Documents.
"Secured Parties" means the "Secured Parties" as defined in the Credit Agreement, including, without limitation, the Administrative Agent, the Collateral Agent, the Lenders (being Crescent Harbor Bank, N.A. (with a commitment of $135,000,000), Northgate Capital Bank (with a commitment of $90,000,000), and Bridgevale Financial Corporation (with a commitment of $75,000,000)), the Swingline Lender, and the Issuing Bank, together with their respective successors and permitted assigns.
"Security Agreement" means the Security Agreement dated as of May 4, 2023, among the Grantors (as defined therein) and the Collateral Agent, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Termination Notice" means a written notice from the Collateral Agent to the Depository Bank terminating this Agreement, substantially in the form of Exhibit B attached hereto.
"UCC" means the Uniform Commercial Code as in effect in the State of New York from time to time.
Section 1.02 — UCC Terms
Terms used but not otherwise defined in this Agreement that are defined in the UCC shall have the meanings ascribed to them in the UCC, including, without limitation, the terms "deposit account," "control," "proceeds," "supporting obligations," "financial asset," "investment property," and "securities intermediary."
Section 1.03 — Credit Agreement Definitions
Capitalized terms used but not otherwise defined in this Agreement shall have the meanings set forth in the Credit Agreement. In the event that a term is defined in both this Agreement and the Credit Agreement, the definition set forth in this Agreement shall control for purposes of this Agreement.
ARTICLE II — THE ACCOUNT
Section 2.01 — Identification of Account
The Account is identified on Schedule I attached hereto and is currently maintained at Meridian Trust Company, N.A. at 1001 Fourth Avenue, Suite 500, Seattle, WA 98154. Schedule I sets forth, among other things, the account number, the account name (Cascade Retail Holdings Inc. — Operating Account), the account type (commercial demand deposit / checking), the ABA/routing number, and the currency in which the Account is denominated (United States Dollars). The Employer Identification Number of the Account Holder is 91-1847263. In the event the Depository Bank renumbers, renames, or otherwise modifies the Account (whether as a result of a system conversion or otherwise), such renumbered, renamed, or modified account shall be deemed to be the "Account" for all purposes of this Agreement, and the Depository Bank shall promptly notify the Collateral Agent and the Account Holder in writing of any such change.
Section 2.02 — Acknowledgment of Security Interest
The Depository Bank hereby acknowledges that:
(a) it has been notified of, and hereby acknowledges, the Collateral Agent's security interest in the Account;
(b) the Account Holder has granted a first-priority security interest in the Account and all funds, financial assets, investment property, and other property on deposit therein or credited thereto, together with all interest, dividends, and other earnings thereon, and all proceeds and products thereof (whether in the form of cash, securities, or otherwise), to the Collateral Agent, for the ratable benefit of the Secured Parties, pursuant to the Security Agreement; and
(c) the Collateral Agent has "control" (within the meaning of Section 9-104 of the UCC) of the Account pursuant to this Agreement, and this Agreement is intended to, and does, establish such control.
The Depository Bank acknowledges and agrees that the Account Holder's security interest grant described in clause (b) above is effective as against the Depository Bank and that the Depository Bank shall treat the Account in all respects in accordance with the terms and conditions of this Agreement.
Section 2.03 — Representations of Depository Bank
The Depository Bank hereby represents and warrants to the Collateral Agent and the Account Holder, as of the date hereof, as follows:
(a) The Account is maintained solely in the name of the Account Holder, and no person or entity other than the Account Holder is listed as an owner, co-owner, or authorized signatory on the Account, except as may be designated by the Account Holder in its standard account documentation with the Depository Bank.
(b) As of the date hereof, the Depository Bank has not received notice of any lien, claim, security interest, encumbrance, or adverse claim on or against the Account or any funds therein, other than the security interest of the Collateral Agent described in this Agreement and any lien or claim of the Depository Bank arising by operation of law or under its standard account agreements.
(c) As of the date hereof, the Depository Bank has not entered into any other control agreement, blocked account agreement, or similar agreement with respect to the Account with any third party, except as may be disclosed to the Collateral Agent in writing prior to the execution of this Agreement.
(d) The Account is not a trust account, escrow account, fiduciary account, IOLTA account, payroll tax withholding account, or other special-purpose account. The Account is a general commercial demand deposit account used for the ordinary course business operations of the Account Holder.
(e) The information set forth on Schedule I attached hereto with respect to the Account is complete and accurate in all material respects as of the date hereof.
Section 2.04 — No Other Agreements
The Depository Bank agrees that, from and after the date hereof, it will not enter into any agreement with any third party pursuant to which the Depository Bank agrees to comply with instructions concerning the Account originated by such third party, without the prior written consent of the Collateral Agent. This restriction shall remain in effect so long as this Agreement is in effect and has not been terminated in accordance with Article VII hereof.
ARTICLE III — OPERATION OF ACCOUNT PRIOR TO ACTIVATION NOTICE
Section 3.01 — Account Holder's Rights Prior to Activation Notice
Until the Depository Bank receives an Activation Notice from the Collateral Agent in accordance with Section 4.02 of this Agreement, the Account Holder shall have the full right and authority to issue Instructions to the Depository Bank with respect to the Account in accordance with the Account Holder's customary banking arrangements with the Depository Bank. Without limiting the generality of the foregoing, the Account Holder may, at any time prior to the Depository Bank's receipt of an Activation Notice:
(a) direct transfers of funds from the Account to any other account or accounts, whether maintained at the Depository Bank or at any other financial institution;
(b) make withdrawals from the Account;
(c) draw, issue, and negotiate checks and other instruments drawn on the Account;
(d) initiate ACH transfers, wire transfers, and other electronic fund transfers from the Account;
(e) authorize debits and preauthorized payments from the Account; and
(f) otherwise operate the Account in the ordinary course of the Account Holder's business.
During such period, the Depository Bank shall comply with Instructions from the Account Holder without further consent of, or notice to, the Collateral Agent, subject in all cases to the Depository Bank's standard account agreements with the Account Holder and applicable law.
Section 3.02 — Collateral Agent's Rights Prior to Activation Notice
At all times (whether or not an Activation Notice has been delivered and whether or not a Cash Dominion Event has occurred or is continuing), the Depository Bank shall comply with Instructions originated by the Collateral Agent directing the disposition of funds in the Account without further consent of the Account Holder. The Account Holder hereby consents to the Depository Bank's compliance with Instructions originated by the Collateral Agent, and the Account Holder agrees that the Depository Bank shall have no liability to the Account Holder for complying with any such Instructions. The Parties acknowledge and agree that this Section 3.02 is intended to establish "control" of the Account by the Collateral Agent within the meaning of Section 9-104(a)(2) of the UCC.
Section 3.03 — Reporting
(a) The Depository Bank shall deliver to the Collateral Agent, at the notice address specified in Section 8.01 of this Agreement (or at such other address or by such other means of delivery as the Collateral Agent may from time to time designate in writing), copies of all monthly account statements with respect to the Account, within five (5) business days after the end of each calendar month. Such statements shall include, at a minimum, the opening and closing balances for the applicable period, all credits and debits during such period, and such other information as is customarily included in the Depository Bank's standard account statements for commercial deposit accounts.
(b) In addition to the foregoing, the Depository Bank shall provide to the Collateral Agent such other information regarding the Account, including current balances, transaction histories, and account activity reports, as the Collateral Agent may reasonably request from time to time. The Depository Bank shall use commercially reasonable efforts to respond to any such request within three (3) business days of receipt thereof.
The Account Holder hereby authorizes and directs the Depository Bank to provide to the Collateral Agent all such account statements and information, and the Account Holder waives any right to object to such disclosure.
ARTICLE IV — CASH DOMINION; ACTIVATION NOTICE
Section 4.01 — Cash Dominion Event
A "Cash Dominion Event" shall be deemed to exist at any time that either of the following conditions is satisfied:
(a) Availability (as defined in the Credit Agreement) falls below the Cash Dominion Trigger of $37,500,000 (being 12.5% of the lesser of (x) the Aggregate Commitments, which, as of the Closing Date, equals $300,000,000, and (y) the Borrowing Base, which, as of the Closing Date, equals $326,400,000); or
(b) an Event of Default has occurred and is continuing under the Credit Agreement.
A Cash Dominion Event shall cease to exist only upon the satisfaction of each of the following conditions: (i) Availability shall have exceeded the Cash Dominion Trigger for thirty (30) consecutive days, and (ii) no Event of Default shall then exist and be continuing under the Credit Agreement, in each case as certified in writing by the Collateral Agent to the Depository Bank. The Depository Bank shall have no duty or obligation to independently verify whether a Cash Dominion Event has occurred or ceased to exist and shall be entitled to rely conclusively upon any written certification or notice delivered by the Collateral Agent in connection therewith.
Section 4.02 — Delivery of Activation Notice
Upon the occurrence and during the continuance of a Cash Dominion Event, the Collateral Agent may, in its sole and absolute discretion, deliver an Activation Notice to the Depository Bank. The Activation Notice shall be in writing, substantially in the form of Exhibit A attached hereto, and may be delivered by hand delivery, nationally recognized overnight courier (such as Severin Partners LLC, Halcyon Partners LLC, or Tarrant & Co.), email (with PDF attachment), or facsimile transmission, in each case to the Depository Bank at the notice address specified in Section 8.01 of this Agreement. The Collateral Agent shall contemporaneously deliver a copy of the Activation Notice to the Account Holder at the address specified in Section 8.01, provided that the failure to deliver such copy shall not affect the validity or effectiveness of the Activation Notice.
The Depository Bank shall be entitled to rely on any Activation Notice that it reasonably believes to be genuine and to have been executed and delivered by or on behalf of the Collateral Agent. The Depository Bank shall have no duty to verify the authority of the person executing any Activation Notice or to determine whether any conditions precedent to the delivery of an Activation Notice have been satisfied. An Activation Notice shall be effective upon receipt by the Depository Bank, or, if received after 2:00 p.m. (Pacific Time) on a business day, on the next succeeding business day.
Section 4.03 — Effect of Activation Notice
Upon and after the Depository Bank's receipt of an Activation Notice, and until the Depository Bank's receipt of a Deactivation Notice as described in Section 4.04 hereof, the following provisions shall apply:
(a) Exclusive Compliance with Collateral Agent Instructions. The Depository Bank shall comply exclusively with Instructions originated by the Collateral Agent with respect to the disposition of funds in the Account. The Depository Bank shall not comply with any Instructions originated by the Account Holder directing the disposition of funds in the Account unless such Instructions have been countersigned or otherwise approved in writing by the Collateral Agent. The Account Holder acknowledges and agrees that, during the period in which an Activation Notice is in effect, the Depository Bank shall be under no obligation to accept or act upon any Instructions from the Account Holder unless such Instructions are accompanied by the written approval of the Collateral Agent.
(b) Sweep and Application of Funds. The Collateral Agent may direct the Depository Bank to (i) sweep all collected and available funds on deposit in the Account on a daily basis (or on such other frequency as the Collateral Agent may specify) to the Concentration Account maintained by CRH at Crescent Harbor Bank, N.A. for application against the Secured Obligations as provided in the Credit Agreement, (ii) remit specific amounts to one or more specified accounts at financial institutions designated by the Collateral Agent, and/or (iii) otherwise dispose of funds in the Account as the Collateral Agent may direct in writing from time to time. The Depository Bank shall execute such sweeps and transfers in accordance with its standard processing cycles and cutoff times, using commercially reasonable efforts to effect each such transfer on the same business day on which collected funds are available.
(c) Permitted Debits by Depository Bank. Notwithstanding the provisions of clauses (a) and (b) above, the Depository Bank may continue to debit the Account for (i) the Depository Bank's service charges, maintenance fees, account analysis fees, and other fees and expenses payable by the Account Holder to the Depository Bank in connection with the establishment and maintenance of the Account, (ii) returned items, insufficient fund charges, and chargebacks, and (iii) any amount required to correct posting errors or other errors made by the Depository Bank, in each case in accordance with the Depository Bank's standard banking practices and its account agreements with the Account Holder.
Section 4.04 — Deactivation Notice
The Collateral Agent may, in its sole discretion, at any time following the delivery of an Activation Notice, deliver a written notice (a "Deactivation Notice") to the Depository Bank directing that the Activation Notice previously delivered is no longer in effect. A Deactivation Notice shall be in writing, signed by an authorized officer of the Collateral Agent, and shall be delivered to the Depository Bank at the notice address specified in Section 8.01 of this Agreement. The Collateral Agent shall contemporaneously deliver a copy of the Deactivation Notice to the Account Holder.
Upon the Depository Bank's receipt of a Deactivation Notice, the Account shall be operated in accordance with Article III of this Agreement (i.e., the Account Holder shall resume full authority to issue Instructions to the Depository Bank with respect to the Account without further consent of the Collateral Agent, subject in all respects to the Collateral Agent's continuing control rights under Section 3.02 of this Agreement).
The delivery of a Deactivation Notice shall not (a) terminate or otherwise affect this Agreement, (b) release or otherwise affect the security interest of the Collateral Agent in the Account, or (c) preclude the subsequent delivery of a new Activation Notice upon the occurrence and during the continuance of a Cash Dominion Event. The Parties acknowledge that multiple Activation Notices and Deactivation Notices may be delivered during the term of this Agreement.
ARTICLE V — SUBORDINATION OF DEPOSITORY BANK'S RIGHTS
Section 5.01 — Subordination of Setoff and Recoupment
The Depository Bank hereby agrees that, for so long as this Agreement remains in effect, it will not exercise any right of setoff, banker's lien, counterclaim, recoupment, or similar right against the Account or any funds therein (or otherwise debit or place a hold on the Account) in respect of any obligation of the Account Holder to the Depository Bank, whether such obligation arises under any loan, credit facility, or other financial accommodation, or otherwise, except for:
(a) service charges, maintenance fees, account analysis fees, and other fees and expenses with respect to the Account that are currently due and payable by the Account Holder to the Depository Bank in connection with the establishment and maintenance of the Account; and
(b) returned items, insufficient fund charges, and chargebacks arising in the ordinary course of the Depository Bank's administration of the Account,
in each case arising in the ordinary course of the Depository Bank's account administration and not exceeding the amounts customarily charged by the Depository Bank for similar services and transactions with respect to comparable commercial deposit accounts.
Section 5.02 — Priority
The Depository Bank hereby acknowledges and agrees that any claims, liens, or interests that the Depository Bank may now or hereafter have against or in the Account or the funds therein (whether by setoff, banker's lien, security interest, or otherwise) are, and shall at all times remain, subordinate and junior in all respects to the first-priority security interest of the Collateral Agent in the Account and all funds therein, subject only to the exceptions set forth in Section 5.01(a) and (b) above. The Depository Bank shall not assert any claim, lien, or interest in or to the Account or the funds therein that is prior to, or on a parity with, the security interest of the Collateral Agent.
ARTICLE VI — DEPOSITORY BANK'S DUTIES AND PROTECTIONS
Section 6.01 — Standard of Care
The Depository Bank's duties and responsibilities under this Agreement shall be limited solely and exclusively to those expressly set forth herein, and no implied duties, obligations, or covenants shall be read into this Agreement against the Depository Bank. The Depository Bank is acting solely in its capacity as a depository bank and not as a fiduciary, trustee, or agent for any Party. The Depository Bank shall not be liable for any action taken or omitted to be taken by it in good faith and in accordance with the terms of this Agreement, absent a finding by a court of competent jurisdiction (in a final, non-appealable judgment) that such action or omission constituted gross negligence, bad faith, or willful misconduct on the part of the Depository Bank.
Section 6.02 — No Duty to Investigate
The Depository Bank shall have no duty, obligation, or responsibility to investigate, verify, or make any determination as to whether:
(a) a Cash Dominion Event has occurred or is continuing;
(b) Availability is above or below the Cash Dominion Trigger or any other threshold;
(c) an Event of Default has occurred or is continuing under the Credit Agreement;
(d) any conditions precedent to the delivery of an Activation Notice, Deactivation Notice, or Termination Notice have been satisfied or waived;
(e) any Instruction delivered by the Collateral Agent is authorized under the Credit Agreement or any other Loan Document; or
(f) any representation, warranty, or certification made by the Account Holder or the Collateral Agent in connection with this Agreement or any notice delivered hereunder is true, accurate, or complete.
The Depository Bank shall be entitled to rely conclusively, and shall be fully protected in so relying, upon any notice, certificate, instruction, direction, or other document or communication delivered to it by the Collateral Agent (or purportedly delivered by the Collateral Agent) in connection with this Agreement.
Section 6.03 — Reliance
The Depository Bank may rely upon, and shall be fully protected in acting or refraining from acting upon, any Activation Notice, Deactivation Notice, Termination Notice, Instruction, certificate, statement, or other notice, instrument, or document that it in good faith believes to be genuine and to have been signed, executed, or delivered by the appropriate Party or Parties. The Depository Bank shall not be required to inquire into the authority of any person executing or delivering any such document.
Section 6.04 — No Liability
The Depository Bank shall not be liable to the Account Holder, the Collateral Agent, or any Secured Party for any loss, liability, cost, expense, or damage arising from or in connection with:
(a) the Depository Bank's compliance with Instructions originated by the Collateral Agent following the Depository Bank's receipt of an Activation Notice, provided that the Depository Bank has acted in good faith;
(b) the Depository Bank's compliance with the terms and conditions of this Agreement;
(c) any delay, failure, interruption, or malfunction of any wire transfer system, ACH network, electronic funds transfer system, or other payment system or communication network used in connection with the transfer of funds from or to the Account, to the extent such delay, failure, interruption, or malfunction is not caused by the Depository Bank's gross negligence or willful misconduct; or
(d) any act or omission of any third party, including any intermediary bank, correspondent bank, or funds-transfer system operator.
Section 6.05 — Indemnification of Depository Bank
The Account Holder agrees to indemnify, defend, and hold harmless the Depository Bank and its officers, directors, employees, agents, and affiliates (collectively, the "Depository Bank Indemnified Parties") from and against any and all claims, demands, suits, actions, losses, liabilities, judgments, damages, costs, and expenses (including reasonable attorneys' fees and disbursements) arising out of or in connection with this Agreement or the Depository Bank's performance of its obligations hereunder, except to the extent that any such claim, loss, liability, damage, cost, or expense is finally determined by a court of competent jurisdiction (in a final, non-appealable judgment) to have resulted directly from the gross negligence, bad faith, or willful misconduct of the applicable Depository Bank Indemnified Party. This indemnification obligation shall be in addition to, and not in limitation of, any other indemnification obligation of the Account Holder to the Depository Bank under the Depository Bank's standard account agreements.
The Collateral Agent shall have no obligation to indemnify the Depository Bank or any Depository Bank Indemnified Party under this Agreement, except as may be separately agreed in writing between the Collateral Agent and the Depository Bank.
ARTICLE VII — TERMINATION
Section 7.01 — Termination by Collateral Agent
This Agreement may be terminated at any time by the Collateral Agent upon the delivery of a Termination Notice, substantially in the form of Exhibit B attached hereto, to the Depository Bank and the Account Holder. A Termination Notice shall be effective upon receipt by the Depository Bank. Upon the Depository Bank's receipt of a Termination Notice:
(a) the Depository Bank's obligations to comply with the Collateral Agent's Instructions hereunder shall immediately terminate;
(b) the Account shall thereafter be operated solely in accordance with the Account Holder's instructions and the Depository Bank's standard account agreements with the Account Holder;
(c) the security interest of the Collateral Agent in the Account (insofar as perfected by "control" under this Agreement) shall cease to be perfected by control, without prejudice to any other method of perfection that may then be in effect; and
(d) the Depository Bank shall have no further obligations or liabilities to the Collateral Agent under this Agreement, except as otherwise provided in Section 7.04 hereof.
Section 7.02 — Termination by Account Holder
The Account Holder may not terminate this Agreement, in whole or in part, without the prior written consent of the Collateral Agent. Any purported termination of this Agreement by the Account Holder without such consent shall be void and of no force or effect.
Section 7.03 — Closure of Account by Depository Bank
The Depository Bank may close the Account or terminate its banking relationship with the Account Holder in accordance with the Depository Bank's standard account agreements and applicable law, provided that the Depository Bank shall give at least thirty (30) days' prior written notice of such closure or termination to both the Account Holder and the Collateral Agent. Such notice shall specify the effective date of the closure and the reason therefor (to the extent permitted by applicable law and the Depository Bank's policies).
Upon closure of the Account:
(a) if an Activation Notice is then in effect and has not been superseded by a Deactivation Notice, the Depository Bank shall remit any remaining funds in the Account (net of any amounts permitted to be retained by the Depository Bank under Sections 4.03(c) and 5.01) to the Concentration Account or such other account as may be directed by the Collateral Agent in writing; or
(b) if no Activation Notice is then in effect, the Depository Bank shall remit any remaining funds in the Account to the Account Holder or as otherwise directed by the Account Holder in writing.
Section 7.04 — Survival
The obligations of the Account Holder under Section 6.05 (Indemnification of Depository Bank) and the obligations of all Parties under Section 8.09 (Governing Law; Jurisdiction) and Section 8.10 (Waiver of Jury Trial) shall survive the termination of this Agreement and the closure of the Account and shall remain in full force and effect regardless of such termination or closure.
ARTICLE VIII — MISCELLANEOUS
Section 8.01 — Notices
All notices, requests, demands, instructions, consents, Activation Notices, Deactivation Notices, Termination Notices, and other communications required or permitted to be given hereunder shall be in writing and shall be delivered by (a) hand delivery, (b) nationally recognized overnight courier (with all charges prepaid), (c) email (with PDF attachment and confirmation of receipt), or (d) United States certified mail, return receipt requested, postage prepaid, to the applicable Party at the address set forth below (or to such other address as any Party may from time to time designate by written notice to the other Parties in accordance with this Section 8.01):
If to the Account Holder:
Cascade Retail Holdings Inc. 2200 Elliott Avenue, Suite 1400 Seattle, WA 98121
Attention: Derek Tanaka, General Counsel & Corporate Secretary
Email: dtanaka@cascaderetail.com
With copies (which shall not constitute notice) to:
Elena Kowalski, Chief Financial Officer Cascade Retail Holdings Inc. 2200 Elliott Avenue, Suite 1400 Seattle, WA 98121
Email: ekowalski@cascaderetail.com
and
Priya Anand, Treasurer Cascade Retail Holdings Inc. 2200 Elliott Avenue, Suite 1400 Seattle, WA 98121
Email: panand@cascaderetail.com
and
Calderwood & Harkness LLP 599 Lexington Avenue, 42nd Floor New York, NY 10022
Attention: Claudia Merritt / Marcus Leung
Email: cmerritt@calderwoodharkness.com / mleung@calderwoodharkness.com
If to the Depository Bank:
Meridian Trust Company, N.A. 1001 Fourth Avenue, Suite 500 Seattle, WA 98154
Attention: Treasury Management Department
Email: treasurymanagement@meridiantrust.com
If to the Collateral Agent:
Crescent Harbor Bank, N.A. 780 Park Avenue, 30th Floor New York, NY 10021
Attention: Thomas Reiland, Managing Director, ABL Origination
Email: treiland@crescentharbor.com
and
Julianne Strickland, Vice President, Portfolio Management Crescent Harbor Bank, N.A. 780 Park Avenue, 30th Floor New York, NY 10021
Email: jstrickland@crescentharbor.com
With a copy (which shall not constitute notice) to:
Whitfield, Greer & Holloway LLP 51 West 52nd Street, 35th Floor New York, NY 10019
Attention: Bernard Ashford
Email: bashford@wghlegal.com
Notices delivered by hand or overnight courier shall be deemed received on the date of delivery. Notices delivered by email shall be deemed received upon the sender's receipt of an acknowledgment of receipt from the intended recipient (such as by a return email or other written acknowledgment), provided that if such notice is delivered after 5:00 p.m. (local time of the recipient) on a business day, or on a day that is not a business day, such notice shall be deemed received on the next succeeding business day. Notices delivered by certified mail shall be deemed received three (3) business days after deposit in the United States mail.
Section 8.02 — Amendments and Waivers
This Agreement may not be amended, modified, supplemented, or restated except by a written instrument duly executed by each of the Account Holder, the Depository Bank, and the Collateral Agent. No waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by the Party against whom enforcement of such waiver is sought. No failure or delay by any Party in exercising any right, power, or remedy hereunder shall operate as a waiver thereof, and no single or partial exercise of any such right, power, or remedy shall preclude any other or further exercise thereof or the exercise of any other right, power, or remedy.
Section 8.03 — Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. The Account Holder may not assign, delegate, or transfer any of its rights or obligations under this Agreement without the prior written consent of the Collateral Agent; any purported assignment or transfer without such consent shall be void and of no force or effect. The Collateral Agent may assign its rights and obligations hereunder in connection with a permitted assignment under the Credit Agreement without the consent of the Account Holder or the Depository Bank. If the Collateral Agent is replaced or succeeded by a new collateral agent pursuant to the terms of the Credit Agreement, the successor collateral agent shall automatically succeed to all rights, interests, and obligations of the Collateral Agent under this Agreement, and all references herein to the "Collateral Agent" shall be deemed to refer to such successor collateral agent.
Section 8.04 — Entire Agreement
This Agreement, together with the Credit Agreement, the Security Agreement, and the other Loan Documents, constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior negotiations, discussions, agreements, and understandings, whether written or oral, with respect to such subject matter. There are no representations, warranties, covenants, or agreements among the Parties relating to the subject matter hereof that are not expressly set forth herein or in the other agreements referenced above.
Section 8.05 — Severability
If any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein; provided that the Parties shall negotiate in good faith to replace such provision with a valid, legal, and enforceable provision that most closely approximates the intent and economic effect of the invalid, illegal, or unenforceable provision.
Section 8.06 — Counterparts; Electronic Execution
This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all of which taken together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by electronic mail in portable document format (PDF) or by facsimile transmission shall be effective as delivery of a manually executed counterpart of this Agreement. The words "execution," "signed," "signature," and words of like import in this Agreement shall be deemed to include electronic signatures, which shall be of the same legal effect, validity, and enforceability as a manually executed signature, to the extent and as provided in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York Electronic Signatures and Records Act, and the Uniform Electronic Transactions Act.
Section 8.07 — Headings
The section and article headings and the table of contents, if any, contained in this Agreement are included for purposes of convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.
Section 8.08 — Conflict
In the event of any conflict or inconsistency between the terms and provisions of this Agreement and any other agreement between the Account Holder and the Depository Bank relating to the Account (including, without limitation, any account agreement, service agreement, treasury management agreement, or similar agreement), the terms and provisions of this Agreement shall control and prevail to the extent of such conflict or inconsistency. The Depository Bank shall promptly notify the Collateral Agent in writing of any conflict of which it becomes aware.
Section 8.09 — Governing Law; Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of laws (other than Section 5-1401 of the New York General Obligations Law, which by its terms applies to this Agreement). For purposes of perfection and priority of the Collateral Agent's security interest in the Account, the "bank's jurisdiction" (within the meaning of Section 9-304 of the UCC) with respect to the Account shall be deemed to be the State of New York.
Each Party hereto irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the United States District Court for the Southern District of New York, and, if such court lacks subject matter jurisdiction, the Supreme Court of the State of New York, New York County, in any suit, action, or proceeding arising out of or relating to this Agreement, and each Party hereby irrevocably and unconditionally agrees that all claims in respect of any such suit, action, or proceeding may be heard and determined in such courts. Each Party irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any suit, action, or proceeding arising out of or relating to this Agreement in any such court, and irrevocably waives any claim that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.
Section 8.10 — Waiver of Jury Trial
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE ACCOUNT, OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.10.
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