SECRETARY'S CERTIFICATE OF CASCADE RETAIL HOLDINGS INC.
Delivered pursuant to Section 4.01(a)(iv) of that certain Credit Agreement dated as of May 4, 2023 (the "Credit Agreement") among Cascade Retail Holdings Inc., a Delaware corporation ("CRH" or the "Company"), Cascade Retail Operating Company LLC, a Delaware limited liability company ("CROC"), the Guarantors party thereto, the Lenders party thereto, and Crescent Harbor Bank, N.A., as Administrative Agent and Collateral Agent (the "Administrative Agent")
$300,000,000 Senior Secured Asset-Based Revolving Credit Facility
May 19, 2023
I, Derek Tanaka, hereby certify that I am the duly elected, qualified, and acting General Counsel and Corporate Secretary of Cascade Retail Holdings Inc., a corporation duly organized and existing under the laws of the State of Delaware (Nasdaq: CRHI), with its principal executive offices located at 2200 Elliott Avenue, Suite 1400, Seattle, Washington 98121, and with federal employer identification number 91-1847263 (the "Company").
I am executing this Secretary's Certificate (this "Certificate") in my capacity as General Counsel and Corporate Secretary of the Company, and I have access to, and am familiar with, the Company's books and records, including its Certificate of Incorporation, Bylaws, and the minutes and resolutions of the Board of Directors. This Certificate is delivered in connection with the closing of the Credit Agreement and the transactions contemplated thereby, including the initial borrowing of $150,000,000 in revolving loans under the Credit Agreement on the date hereof.
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Credit Agreement.
I hereby certify to the Administrative Agent and each of the Lenders party to the Credit Agreement as follows:
Section 1. Certificate of Incorporation.
Attached hereto as Exhibit A is a true, correct, and complete copy of the Certificate of Incorporation of Cascade Retail Holdings Inc., as certified by the Secretary of State of the State of Delaware, including all amendments and restatements thereto through the date hereof. The Certificate of Incorporation has not been amended, supplemented, modified, restated, or rescinded since the date of certification by the Secretary of State of the State of Delaware and is in full force and effect as of the date hereof. No proceeding for the amendment, modification, or restatement of the Certificate of Incorporation is pending or, to my knowledge, contemplated. The Company is a corporation organized under the General Corporation Law of the State of Delaware.
Section 2. Bylaws.
Attached hereto as Exhibit B is a true, correct, and complete copy of the Bylaws of Cascade Retail Holdings Inc. as currently in effect as of the date hereof, including all amendments thereto. The Bylaws have not been further amended, supplemented, modified, restated, or rescinded since the date of the most recent amendment thereto and are in full force and effect as of the date hereof. No proceeding for the amendment, modification, or repeal of the Bylaws is pending or, to my knowledge, contemplated.
Section 3. Board of Directors Resolutions.
Attached hereto as Exhibit C is a true, correct, and complete copy of the resolutions (the "Resolutions") duly adopted by the Board of Directors of Cascade Retail Holdings Inc. at a meeting of the Board of Directors duly called, noticed, convened, and held on February 27, 2023 at which a quorum was present and acting throughout, which Resolutions authorize, among other things:
(a) the Company's entry into, execution, and delivery of the Credit Agreement and all related Loan Documents, including without limitation the Security Agreement, Pledge Agreement, Revolving Loan Notes, and Swingline Note;
(b) the borrowing of revolving loans and the obtaining of letters of credit under the $300,000,000 Senior Secured Asset-Based Revolving Credit Facility established pursuant to the Credit Agreement;
(c) the granting of a first-priority security interest in the ABL Collateral (including all accounts receivable, inventory, deposit accounts, and related collateral) pursuant to the Security Agreement;
(d) the pledge of 100% of the membership interests in Cascade Retail Operating Company LLC, a Delaware limited liability company, pursuant to the Pledge Agreement;
(e) the payoff and refinancing of the existing $175,000,000 revolving ABL facility with Harborview Lending Group, LLC, including payment of the outstanding balance thereunder of approximately $112,450,000, and the termination of all existing UCC financing statements and other security arrangements in connection therewith;
(f) the initial borrowing of $150,000,000 in revolving loans on the closing date of the Credit Agreement;
(g) the designation of Nathaniel Voss, Chief Executive Officer, and Elena Kowalski, Chief Financial Officer, as authorized signatories, each acting alone, to execute and deliver the Credit Agreement and all related Loan Documents on behalf of the Company; and
(h) the authorization of any officer of the Company to execute and deliver such other documents, instruments, certificates, and agreements as may be necessary or desirable in connection with the foregoing transactions.
Such Resolutions have not been amended, supplemented, modified, revoked, rescinded, or superseded and remain in full force and effect as of the date hereof. No other resolutions have been adopted by the Board of Directors of the Company that would conflict with, limit, restrict, or otherwise adversely affect the authority granted by such Resolutions.
Section 4. Incumbency Certificate.
Attached hereto as Exhibit D is a true and correct incumbency certificate setting forth the name, title, and true specimen signature of each officer of the Company authorized to execute the Credit Agreement and the other Loan Documents on behalf of the Company. The following officers are so authorized:
Each such person holds the office set forth opposite his or her name as of the date hereof, has held such office continuously since prior to the date of the Resolutions attached hereto as Exhibit C, and is duly authorized to execute and deliver each of the Loan Documents to which the Company is a party. The specimen signatures set forth opposite each such person's name on Exhibit D are the genuine signatures of such persons.
Section 5. Good Standing.
The Company is duly organized, validly existing, and in good standing under the laws of the State of Delaware. Attached hereto as Exhibit E is a Certificate of Good Standing for the Company issued by the Secretary of State of the State of Delaware, dated on or about the closing date of the Credit Agreement. The Company is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction where the character or nature of its business or the ownership, leasing, or operation of its properties requires such qualification, including without limitation the State of Washington, the location of the Company's principal executive offices and headquarters.
Section 6. Additional Certifications.
I further certify to the Administrative Agent and each of the Lenders as follows:
(a) No proceedings for the dissolution, liquidation, winding up, or termination of the Company have been commenced, are pending, or, to my knowledge, are contemplated or threatened by any person.
(b) No proceedings are pending or, to my knowledge, threatened for the amendment, modification, restatement, or repeal of the Certificate of Incorporation or the Bylaws of the Company, except as may have been previously disclosed to the Administrative Agent in writing.
(c) The Company's registered agent in the State of Delaware is Northwest Registered Agents, Inc., located at 1209 Orange Street, Wilmington, Delaware 19801.
(d) The Company's principal office address is 2200 Elliott Avenue, Suite 1400, Seattle, Washington 98121.
(e) The Company's federal employer identification number (EIN) is 91-1847263.
Section 7. Reliance.
This Certificate and the exhibits and attachments hereto are delivered to, and may be relied upon by, the Administrative Agent (Crescent Harbor Bank, N.A.), each of the Lenders party to the Credit Agreement (Northgate Capital Bank and Bridgevale Financial Corporation), and their respective counsel (Whitfield, Greer & Holloway LLP) in connection with the Credit Agreement and the transactions contemplated thereby. This Certificate and the certifications contained herein are made for the benefit of, and are intended to induce reliance by, the Administrative Agent and the Lenders in connection with the making of loans and the extension of credit under the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Secretary's Certificate as of May 19, 2023.
CASCADE RETAIL HOLDINGS INC.
By: ________
Name: Derek Tanaka
Title: General Counsel and Corporate Secretary
OFFICER CONFIRMATION OF SECRETARY'S CERTIFICATE
The undersigned, Nathaniel Voss, Chief Executive Officer of Cascade Retail Holdings Inc. (the "Company"), hereby confirms that Derek Tanaka is the duly appointed, qualified, and acting General Counsel and Corporate Secretary of the Company, that he holds such office as of the date hereof and has held such office continuously since prior to February 27, 2023, and that the signature of Derek Tanaka appearing above on this Secretary's Certificate is his genuine signature.
CASCADE RETAIL HOLDINGS INC.
By: ________
Name: Nathaniel Voss
Title: Chief Executive Officer
Date: May 19, 2023
EXHIBIT A
CERTIFICATE OF INCORPORATION OF CASCADE RETAIL HOLDINGS INC.
As Certified by the Secretary of State of the State of Delaware
[Certified copy of the Certificate of Incorporation of Cascade Retail Holdings Inc. filed with the Secretary of State of the State of Delaware, organized under the General Corporation Law of the State of Delaware, including all amendments and restatements thereto, attached hereto.]
Note: The foregoing is a true, correct, and complete copy of the Certificate of Incorporation of Cascade Retail Holdings Inc. as certified by the Secretary of State of the State of Delaware. This certified copy includes all certificates of amendment, certificates of correction, and certificates of designation filed with the Secretary of State of the State of Delaware through the date hereof.
EXHIBIT B
BYLAWS OF CASCADE RETAIL HOLDINGS INC.
As Amended Through May 19, 2023
[Full copy of the Bylaws of Cascade Retail Holdings Inc. as currently in effect, including all amendments thereto, including without limitation provisions regarding the authority of the Board of Directors, the appointment and removal of officers, the execution and delivery of documents and instruments on behalf of the Company, and corporate governance matters, attached hereto.]
Note: The foregoing is a true, correct, and complete copy of the Bylaws of Cascade Retail Holdings Inc. as currently in effect as of May 19, 2023, including all amendments thereto.
EXHIBIT C
RESOLUTIONS OF THE BOARD OF DIRECTORS OF CASCADE RETAIL HOLDINGS INC.
Adopted February 27, 2023
The following resolutions were duly adopted by the Board of Directors of Cascade Retail Holdings Inc. (the "Company") at a meeting of the Board of Directors duly called, noticed, convened, and held on February 27, 2023, at which a quorum of the directors was present and acting throughout, with Margaret Liu, Chair of the Board of Directors, presiding:
RECITALS. WHEREAS, the Board of Directors of the Company (the "Board") has reviewed and considered the proposal for the Company and its wholly owned subsidiary, Cascade Retail Operating Company LLC, a Delaware limited liability company ("CROC"), as co-borrower, to enter into a Senior Secured Asset-Based Revolving Credit Facility in an aggregate principal amount of up to $300,000,000 (the "Credit Facility") with a syndicate of lenders led by Crescent Harbor Bank, N.A. ("Crescent Harbor"), in its capacities as Administrative Agent, Collateral Agent, Sole Lead Arranger, and Sole Bookrunner;
WHEREAS, the Credit Facility will be used to refinance the Company's existing $175,000,000 revolving asset-based lending facility (the "Existing ABL Facility") with Harborview Lending Group, LLC ("Harborview"), and to provide ongoing working capital and for general corporate purposes of the Company and its subsidiaries;
WHEREAS, the lender syndicate for the Credit Facility shall consist of (i) Crescent Harbor Bank, N.A., with a commitment of $135,000,000, representing 45% of the total facility, (ii) Northgate Capital Bank, with a commitment of $90,000,000, representing 30% of the total facility, and (iii) Bridgevale Financial Corporation, with a commitment of $75,000,000, representing 25% of the total facility;
WHEREAS, the Board has received and reviewed detailed presentations and materials prepared by management of the Company, including presentations by Elena Kowalski, Chief Financial Officer, and Priya Anand, Treasurer, regarding the terms, conditions, and financial implications of the proposed Credit Facility, as well as advice from the Company's outside legal counsel, Calderwood & Harkness LLP (Claudia Merritt, Responsible Partner), regarding the legal terms and documentation of the proposed Credit Facility;
WHEREAS, the Board has reviewed and considered the key terms of the proposed Credit Facility, including without limitation the following:
(a) an interest rate of Adjusted Term SOFR plus 300 basis points per annum;
(b) a maturity date of five (5) years from the closing date (May 2028);
(c) a borrowing base consisting of the sum of (i) 85% of eligible accounts receivable plus (ii) 65% of the net orderly liquidation value ("NOLV") of eligible inventory;
(d) a springing fixed charge coverage ratio of 1.10 to 1.00, tested only when Excess Availability falls below the greater of (x) 10% of the Line Cap and (y) $25,000,000;
(e) a letter of credit sublimit of $40,000,000; and
(f) a swingline loan sublimit of $25,000,000;
WHEREAS, the Board, after due deliberation and consideration of the foregoing, has determined that it is in the best interests of the Company and its stockholders to authorize the Company to enter into the Credit Facility and to consummate the transactions contemplated thereby;
NOW, THEREFORE, BE IT:
OPERATIVE RESOLUTIONS. RESOLVED, that the Company be, and hereby is, authorized to enter into and to execute and deliver the Credit Agreement and each of the other Loan Documents in connection with the Credit Facility, including without limitation the Guaranty Agreement, Security Agreement, Pledge Agreement, Revolving Loan Notes, Swingline Note, Deposit Account Control Agreements, Borrowing Base Certificates, Compliance Certificates, and all related documents, instruments, and agreements (collectively, the "Loan Documents"), in each case on substantially the terms and conditions presented to the Board or on such other terms and conditions as the officers of the Company executing such documents shall approve, such approval to be conclusively evidenced by such officer's execution and delivery thereof;
RESOLVED, that the Company be, and hereby is, authorized to borrow revolving loans in an aggregate principal amount of up to $300,000,000 outstanding at any time and to obtain letters of credit in an aggregate stated amount of up to $40,000,000 and swingline loans in an aggregate principal amount of up to $25,000,000, in each case under and pursuant to the terms and conditions of the Credit Agreement;
RESOLVED, that the Company be, and hereby is, authorized to grant a first-priority security interest in and lien upon all accounts receivable, inventory, deposit accounts, and all related collateral (collectively, the "ABL Collateral") of the Company pursuant to the Security Agreement, and to pledge 100% of the Company's membership interests in Cascade Retail Operating Company LLC, a Delaware limited liability company, pursuant to the Pledge Agreement, all as security for the Obligations (as defined in the Credit Agreement);
RESOLVED, that the Company be, and hereby is, authorized to repay and refinance the Existing ABL Facility with Harborview Lending Group, LLC, including the payment in full of the outstanding balance thereunder, which is approximately $112,450,000 as of the date hereof, plus all accrued and unpaid interest, fees, and other amounts owing thereunder, and to authorize and direct the termination, release, and discharge of all existing UCC financing statements, mortgages, pledges, security agreements, and other liens and encumbrances in favor of Harborview Lending Group, LLC in connection therewith;
RESOLVED, that the Company be, and hereby is, authorized to pay all closing costs, fees, and expenses incurred in connection with the Credit Facility, including without limitation (i) upfront fees and arrangement fees in the aggregate amount of $1,500,000 (representing 50 basis points on the $300,000,000 aggregate commitment), (ii) annual administrative agent fees of $150,000 payable to Crescent Harbor Bank, N.A., (iii) legal fees and expenses payable to Calderwood & Harkness LLP (counsel to the Company) and Whitfield, Greer & Holloway LLP (counsel to the Administrative Agent and the Lenders), and (iv) appraisal and field examination fees payable to Ridgeline Asset Advisors LLC;
RESOLVED, that Nathaniel Voss, Chief Executive Officer of the Company, and Elena Kowalski, Chief Financial Officer of the Company, be, and each of them hereby is, designated as an "Authorized Signatory" with full power and authority, each acting alone and without the joinder of the other, to execute and deliver the Credit Agreement and all related Loan Documents on behalf of the Company, and to take all such further actions and to execute and deliver all such further documents, instruments, and certificates as such Authorized Signatory shall deem necessary, advisable, or appropriate in connection with the Credit Facility and the transactions contemplated by the Credit Agreement;
RESOLVED, that any officer of the Company be, and each of them hereby is, authorized and empowered to execute, deliver, and perform such additional documents, instruments, certificates, notices, and agreements and to take such additional actions as such officer may deem necessary, advisable, or appropriate to carry out the intent and purposes of the foregoing resolutions and to consummate the transactions contemplated thereby, with such changes, modifications, and amendments thereto as such officer may approve, such approval to be conclusively evidenced by such officer's execution and delivery thereof; and
RESOLVED, that all actions heretofore taken by any officer or director of the Company in connection with the negotiation, preparation, and execution of any of the matters contemplated by the foregoing resolutions are hereby ratified, confirmed, approved, and adopted in all respects as the acts and deeds of the Company.
The undersigned, Derek Tanaka, General Counsel and Corporate Secretary of Cascade Retail Holdings Inc., hereby certifies that the foregoing is a true, correct, and complete copy of the resolutions duly adopted by the Board of Directors of Cascade Retail Holdings Inc. at a meeting of the Board duly called, noticed, convened, and held on February 27, 2023, at which Margaret Liu, Chair of the Board of Directors, presided, and that such resolutions have not been amended, modified, revoked, rescinded, or superseded and remain in full force and effect as of the date hereof.
CASCADE RETAIL HOLDINGS INC.
By: ________
Name: Derek Tanaka
Title: General Counsel and Corporate Secretary
Date: May 19, 2023
EXHIBIT D
INCUMBENCY CERTIFICATE OF CASCADE RETAIL HOLDINGS INC.
Dated: May 19, 2023
The undersigned, Derek Tanaka, General Counsel and Corporate Secretary of Cascade Retail Holdings Inc., a Delaware corporation (the "Company"), hereby certifies, in connection with the Credit Agreement dated as of May 4, 2023 (the "Credit Agreement") among the Company, Cascade Retail Operating Company LLC, the Guarantors party thereto, the Lenders party thereto, and Crescent Harbor Bank, N.A., as Administrative Agent, that each of the persons listed below is a duly elected or appointed officer of the Company, currently holds the office indicated opposite such person's name, has held such office continuously since prior to February 27, 2023, and is duly authorized to execute and deliver the Credit Agreement and each of the other Loan Documents to which the Company is a party. The signature set forth opposite each such person's name below is the genuine signature of such person.
I certify that each person listed above is, as of the date hereof, a duly elected or appointed officer of Cascade Retail Holdings Inc., currently holds the office indicated opposite such person's name, and the signature opposite each such person's name is such person's genuine signature.
CASCADE RETAIL HOLDINGS INC.
By: ________
Name: Derek Tanaka
Title: General Counsel and Corporate Secretary
Date: May 19, 2023
EXHIBIT E
CERTIFICATE OF GOOD STANDING OF CASCADE RETAIL HOLDINGS INC.
Issued by the Secretary of State of the State of Delaware
[Certificate of Good Standing for Cascade Retail Holdings Inc. issued by the Secretary of State of the State of Delaware, dated on or about May 2023 (within thirty (30) days of the closing date of the Credit Agreement), confirming that Cascade Retail Holdings Inc. is a corporation duly incorporated under the laws of the State of Delaware and is in good standing, attached hereto.]
Note: The foregoing Certificate of Good Standing was obtained from the Office of the Secretary of State of the State of Delaware and is dated within thirty (30) days of the closing date of the Credit Agreement. The original certificate (or a certified copy thereof) is attached hereto.
| Name | Title | |
| Nathaniel Voss | Chief Executive Officer | |
| Elena Kowalski | Chief Financial Officer | |
| Derek Tanaka | General Counsel & Corporate Secretary | |
| Priya Anand | Treasurer | |
| Name | Title | Specimen Signature |
| Nathaniel Voss | Chief Executive Officer | _____ |
| Elena Kowalski | Chief Financial Officer | _____ |
| Derek Tanaka | General Counsel & Corporate Secretary | _____ |
| Priya Anand | Treasurer | _____ |