SWINGLINE PROMISSORY NOTE
Up to $25,000,000
May 4, 2023 New York, New York
FOR VALUE RECEIVED, the undersigned, CASCADE RETAIL HOLDINGS INC., a corporation organized and existing under the laws of the State of Delaware ("Holdings"), and CASCADE RETAIL OPERATING COMPANY LLC, a limited liability company organized and existing under the laws of the State of Delaware ("CROC" and, together with Holdings, collectively, the "Borrowers"), hereby jointly and severally promise to pay to the order of CRESCENT HARBOR BANK, NATIONAL ASSOCIATION, in its capacity as Swingline Lender (in such capacity, the "Swingline Lender"), the principal amount of TWENTY-FIVE MILLION AND 00/100 DOLLARS ($25,000,000), or such lesser amount as shall be the aggregate unpaid principal amount of all Swingline Loans made by the Swingline Lender to the Borrowers pursuant to that certain Credit Agreement dated as of May 4, 2023 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the "Credit Agreement"), among the Borrowers, the Guarantors party thereto, the Lenders party thereto, and Crescent Harbor Bank, National Association, as Administrative Agent (in such capacity, the "Administrative Agent") and as Collateral Agent (in such capacity, the "Collateral Agent"), together with interest thereon as hereinafter provided, all in accordance with the terms and conditions set forth herein and in the Credit Agreement.
1. Identification of Makers and Payee
1.1 Makers (Borrowers). The makers of this Swingline Promissory Note (this "Note") are:
(a) Cascade Retail Holdings Inc., a corporation duly organized and existing under the laws of the State of Delaware, having its principal place of business at 2200 Elliott Avenue, Suite 1400, Seattle, Washington 98121, and bearing Employer Identification Number 91-1847263; and
(b) Cascade Retail Operating Company LLC, a limited liability company duly organized and existing under the laws of the State of Delaware, having its principal place of business at 2200 Elliott Avenue, Suite 1400, Seattle, Washington 98121, and bearing Employer Identification Number 83-2951047.
Each of the foregoing entities is referred to herein individually as a "Borrower" and collectively as the "Borrowers."
1.2 Payee (Swingline Lender). This Note is payable to the order of:
Crescent Harbor Bank, National Association, a national banking association organized and existing under the laws of the United States, having its principal office for purposes of this Note at 780 Park Avenue, 30th Floor, New York, New York 10021, acting in its capacity as Swingline Lender under and as defined in the Credit Agreement.
The Swingline Lender is entitled to act in such capacity and to make Swingline Loans to the Borrowers in accordance with the terms, conditions, and limitations set forth in the Credit Agreement, and this Note evidences the obligation of the Borrowers to repay all such Swingline Loans in accordance with the terms hereof and of the Credit Agreement.
2. Credit Agreement Reference and Defined Terms
2.1 Issuance Pursuant to Credit Agreement. This Note is one of the "Notes" referred to in, and is issued pursuant to, the Credit Agreement. The Credit Agreement provides for, among other things, a senior secured asset-based revolving credit facility in an aggregate principal amount of up to Three Hundred Million and 00/100 Dollars ($300,000,000) (the "Senior Secured Asset-Based Revolving Credit Facility"), subject to the terms and conditions set forth therein, including a sublimit for Swingline Loans in an amount not to exceed Twenty-Five Million and 00/100 Dollars ($25,000,000) (the "Swingline Sublimit"). The Swingline Loans evidenced by this Note constitute a subfacility within the Senior Secured Asset-Based Revolving Credit Facility and are subject to the Borrowing Base limitations and other conditions precedent to borrowing set forth in the Credit Agreement.
2.2 Defined Terms. All capitalized terms used but not otherwise defined in this Note shall have the respective meanings assigned to such terms in the Credit Agreement. Without limiting the foregoing, the terms "Adjusted Term SOFR," "Administrative Agent," "Applicable Margin," "Base Rate," "Borrowing Base," "Business Day," "Collateral Agent," "Event of Default," "Guarantors," "Lenders," "Loan Documents," "Maturity Date," "Obligations," "Revolving Loans," "SOFR," "Swingline Loan," and "Swingline Lender," as used herein, shall have the meanings set forth in the Credit Agreement.
2.3 Benefits and Security. The holder of this Note is entitled to all of the benefits, rights, privileges, and security provided under the Credit Agreement, the Security Agreement (as defined below), the Guaranty Agreement (as defined below), the Pledge Agreement (as defined below), and each of the other Loan Documents, and reference is hereby made to the Credit Agreement and such other Loan Documents for a statement of the terms and conditions under which the Swingline Loans evidenced by this Note were made and are to be repaid, including without limitation the terms and conditions governing the voluntary and mandatory prepayment thereof, the accrual and payment of interest thereon, and the occurrence and consequences of Events of Default thereunder.
3. Promise to Pay — Principal
3.1 Joint and Several Obligation. The Borrowers hereby jointly and severally promise to pay to the Swingline Lender, or its successors, endorsees, or assigns, the aggregate unpaid principal amount of all Swingline Loans made by the Swingline Lender to the Borrowers and evidenced by this Note, in lawful money of the United States of America, in immediately available funds, at the times and in the manner set forth herein and in the Credit Agreement.
3.2 Repayment of Principal. The outstanding principal amount of each Swingline Loan evidenced by this Note shall be due and payable on the earliest of:
(a) the date or dates required under the Credit Agreement for the repayment of Swingline Loans, including without limitation (i) upon demand by the Swingline Lender for repayment of any or all outstanding Swingline Loans in accordance with the Credit Agreement, and (ii) upon settlement with the Revolving Lenders pursuant to the settlement and reallocation procedures set forth in the Credit Agreement;
(b) the Maturity Date, which is May 19, 2028 (or such earlier date as the commitments under the Credit Agreement may be terminated); and
(c) the date of any acceleration of the Obligations, whether automatically or by declaration, pursuant to Article VII (Events of Default) of the Credit Agreement.
3.3 Revolving Nature. The Swingline Loans evidenced by this Note may be borrowed, repaid, and reborrowed from time to time in accordance with the terms and conditions of the Credit Agreement, subject in each case to satisfaction of the applicable conditions precedent to borrowing, the Swingline Sublimit, and the Borrowing Base limitations set forth therein. The aggregate principal amount of Swingline Loans outstanding at any time shall not exceed the Swingline Sublimit.
4. Promise to Pay — Interest
4.1 Interest Rate. The Borrowers hereby jointly and severally promise to pay interest on the unpaid principal amount of each Swingline Loan evidenced by this Note, from the date such Swingline Loan is made until the same is paid in full, at the rate or rates per annum applicable to Swingline Loans as set forth in the Credit Agreement. As of the date hereof, Swingline Loans bear interest at either (i) Adjusted Term SOFR plus 300 basis points (3.00%) per annum, or (ii) the Base Rate plus the Applicable Margin, in each case as more particularly described in and determined in accordance with the Credit Agreement. For the avoidance of doubt, the applicable interest rate for any Swingline Loan shall be determined at the time of borrowing in accordance with the provisions of the Credit Agreement governing the selection of interest rate options.
4.2 SOFR Floor. The SOFR component of any interest rate calculation applicable to Swingline Loans that bear interest by reference to Adjusted Term SOFR shall be subject to a floor of 0.00% per annum (the "SOFR Floor"). In no event shall the SOFR rate used in the calculation of interest hereunder be less than the SOFR Floor.
4.3 SOFR Credit Spread Adjustment. In accordance with the Credit Agreement, the SOFR Credit Spread Adjustment applicable to Swingline Loans bearing interest at a rate based on Adjusted Term SOFR shall be (i) 10 basis points (0.10%) per annum for a one (1)-month interest period, and (ii) 15 basis points (0.15%) per annum for a three (3)-month interest period, in each case as applicable and as more particularly set forth in the Credit Agreement.
4.4 Payment of Interest. Interest on each Swingline Loan shall be payable on the dates and in the manner set forth in the Credit Agreement, including without limitation on the last day of each interest period applicable thereto, on the date of any prepayment (on the amount prepaid), and on the Maturity Date.
4.5 Default Rate. Upon the occurrence and during the continuance of any Event of Default, and to the extent permitted by applicable law, interest on the outstanding principal amount of all Swingline Loans, and (to the extent permitted by applicable law) on all other amounts then due and payable hereunder or under the Credit Agreement, shall accrue at a rate per annum equal to the otherwise applicable interest rate plus an additional 200 basis points (2.00%) per annum (the "Default Rate"), as more particularly set forth in the Credit Agreement. Interest accruing at the Default Rate shall be payable on demand by the Swingline Lender or the Administrative Agent.
4.6 Computation of Interest. All interest on the Swingline Loans evidenced by this Note shall be computed on the basis of a year of three hundred sixty (360) days for the actual number of days elapsed (including the first day but excluding the last day). The applicable interest rate for each Swingline Loan shall be determined by the Administrative Agent in accordance with the Credit Agreement, and each determination thereof shall be conclusive and binding for all purposes, absent manifest error.
4.7 Usury Savings. Notwithstanding anything to the contrary contained herein or in the Credit Agreement, in no event shall the interest rate applicable to any Swingline Loan, together with all fees, charges, and other amounts that are treated as interest under applicable law (collectively, "charges"), exceed the maximum rate permissible under applicable law (the "Maximum Rate"). If at any time and from time to time (i) the rate of interest payable on any Swingline Loan, together with all charges, would exceed the Maximum Rate, thereby causing the interest and charges payable to be limited to the Maximum Rate, then any subsequent reduction in the interest rate shall not reduce the interest rate payable below the Maximum Rate until the total amount of interest and charges accrued equals the amount of interest and charges that would have accrued if the rate set forth in this Note or the Credit Agreement had at all times been in effect, and (ii) in the event that upon final payment of any Swingline Loan, the total interest and charges paid or accrued under the foregoing limitations would be less than the total interest and charges that would have been paid or accrued if the interest rate and charges set forth in this Note or the Credit Agreement had at all times been in effect, then to the extent permitted by applicable law, the Borrowers shall pay an additional amount equal to the difference between the amount of interest and charges actually paid or accrued and the amount of interest and charges that would have been paid or accrued in the absence of such limitation.
5. Payments
5.1 Manner of Payment. All payments of principal of and interest on this Note shall be made in lawful money of the United States of America, in immediately available funds, without setoff, counterclaim, deduction, or defense of any kind, free and clear of, and without deduction for, any and all present or future taxes, levies, imposts, deductions, charges, or withholdings, and all liabilities with respect thereto (except as otherwise expressly provided in the Credit Agreement).
5.2 Place of Payment. All payments hereunder shall be made to the Swingline Lender at its office located at 780 Park Avenue, 30th Floor, New York, New York 10021, or at such other place or account as the Swingline Lender may from time to time designate in writing to the Borrowers and the Administrative Agent.
5.3 Time of Payment. All payments of principal and interest hereunder shall be made not later than 2:00 p.m. (New York City time) on the date on which such payment is due and payable. Any payment received by the Swingline Lender after 2:00 p.m. (New York City time) on any Business Day shall be deemed to have been received on the next succeeding Business Day for all purposes, including the accrual of interest. If any payment hereunder becomes due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall be included in the computation of interest.
5.4 Application of Payments. All payments of principal and interest received by the Swingline Lender in respect of this Note shall be applied in the order and manner specified in the Credit Agreement, including without limitation Section 2.18 thereof (or such other section as may govern the application of payments and proceeds).
6. Mandatory and Optional Prepayment
6.1 Optional Prepayment. The Borrowers shall have the right to prepay the Swingline Loans evidenced by this Note, in whole or in part, at any time and from time to time, without premium or penalty, upon notice to the Swingline Lender and the Administrative Agent in accordance with the terms of the Credit Agreement; provided, however, that, in the event of any prepayment of a Swingline Loan bearing interest at a rate based on Adjusted Term SOFR on a date other than the last day of the applicable interest period, the Borrowers shall compensate the Swingline Lender for any breakage costs, funding losses, and other costs and expenses incurred by the Swingline Lender in connection with such prepayment, as more particularly set forth in the Credit Agreement. Each optional prepayment of principal of the Swingline Loans shall be accompanied by payment of accrued and unpaid interest on the amount prepaid to the date of such prepayment.
6.2 Mandatory Prepayment — Borrowing Base Deficiency. The Borrowers shall be required to make mandatory prepayments of Swingline Loans if at any time the aggregate outstanding principal amount of all Swingline Loans, together with the aggregate outstanding principal amount of all other Revolving Loans and the aggregate amount of all Letter of Credit Obligations, exceeds the lesser of (a) the Aggregate Commitments of Three Hundred Million and 00/100 Dollars ($300,000,000) and (b) the Borrowing Base as then in effect, in each case as more particularly described in and subject to the terms and conditions of the Credit Agreement. Such mandatory prepayments shall be made in the amounts and at the times specified in the Credit Agreement.
6.3 Mandatory Prepayment — Demand and Settlement. The Borrowers shall be required to repay all outstanding Swingline Loans upon demand by the Swingline Lender or upon settlement with the Revolving Lenders in accordance with the settlement and reallocation procedures set forth in the Credit Agreement. Nothing in this Section 6.3 shall limit or otherwise affect the Swingline Lender's rights to demand repayment of Swingline Loans as provided in the Credit Agreement.
7. Security
7.1 Security Interest. This Note and the Obligations evidenced hereby are secured by a first-priority security interest (subject to Permitted Liens and to the terms of any applicable Intercreditor Agreement) in all ABL Collateral, as such term is defined in, and as more particularly described in, the Security Agreement dated as of May 4, 2023 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the "Security Agreement"), among the Borrowers, the other Grantors party thereto, and Crescent Harbor Bank, National Association, in its capacity as Collateral Agent.
7.2 Description of Collateral. The ABL Collateral securing this Note includes, without limitation, the following categories of assets of the Borrowers and the other Grantors:
(a) all accounts receivable, whether now existing or hereafter arising;
(b) all inventory, including without limitation all finished goods, raw materials, work-in-process, in-transit inventory, and distribution center inventory, whether now owned or hereafter acquired;
(c) all deposit accounts, including without limitation all funds on deposit therein, subject to the execution and delivery of deposit account control agreements in favor of the Collateral Agent;
(d) all supporting obligations, including without limitation all letters of credit, guarantees, and other support for any of the foregoing;
(e) all chattel paper, whether tangible or electronic;
(f) all instruments, including without limitation promissory notes and other evidences of indebtedness;
(g) all letter-of-credit rights;
(h) all commercial tort claims identified in the Security Agreement or hereafter disclosed in accordance with the terms thereof;
(i) all general intangibles related to or arising from the foregoing categories of collateral; and
(j) all proceeds (including insurance proceeds) and products of any and all of the foregoing, in any form.
7.3 Guaranty. This Note and the Obligations evidenced hereby are further supported by that certain Guaranty Agreement dated as of May 4, 2023 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the "Guaranty Agreement"), pursuant to which each of the following entities has unconditionally guaranteed the full and punctual payment and performance of all Obligations of the Borrowers, including without limitation all Obligations under this Note:
(a) Cascade Digital Commerce Inc., a Delaware corporation ("CDC");
(b) Cascade Outlet Stores LLC, a Delaware limited liability company ("COS"); and
(c) Cascade Fulfillment Services Inc., a Delaware corporation ("CFS").
7.4 Pledge. This Note and the Obligations evidenced hereby are further supported by that certain Pledge Agreement dated as of May 4, 2023 (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the "Pledge Agreement"), pursuant to which the Borrowers and certain of the Guarantors have pledged to the Collateral Agent, for the benefit of the Secured Parties, the following equity interests:
(a) one hundred percent (100%) of the issued and outstanding equity interests in Cascade Retail Operating Company LLC (CROC);
(b) one hundred percent (100%) of the issued and outstanding equity interests in Cascade Digital Commerce Inc. (CDC);
(c) one hundred percent (100%) of the issued and outstanding equity interests in Cascade Outlet Stores LLC (COS);
(d) one hundred percent (100%) of the issued and outstanding equity interests in Cascade Fulfillment Services Inc. (CFS); and
(e) sixty-five percent (65%) of the issued and outstanding voting equity interests in Cascade Retail Canada ULC, an unlimited liability company organized under the laws of the Province of British Columbia, Canada.
8. Events of Default and Acceleration
8.1 Events of Default. Upon the occurrence and during the continuance of any Event of Default under the Credit Agreement (as defined and described in Article VII thereof), the Swingline Lender and/or the Administrative Agent, as applicable, shall be entitled to exercise all rights and remedies available under the Credit Agreement, this Note, the other Loan Documents, and applicable law. Without limiting the generality of the foregoing, upon the occurrence of any Event of Default:
(a) the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrowers, declare the entire unpaid principal amount of this Note, together with all accrued and unpaid interest thereon, all fees, and all other amounts payable hereunder and under the Credit Agreement, to be immediately due and payable, whereupon the same shall become immediately due and payable without further notice, demand, presentment, protest, or other act of any kind, all of which are hereby expressly waived by the Borrowers; and
(b) in the case of an Event of Default arising under certain bankruptcy- or insolvency-related provisions of the Credit Agreement, the entire unpaid principal amount of this Note, together with all accrued and unpaid interest thereon and all other amounts payable hereunder and under the Credit Agreement, shall automatically and without any notice, declaration, or other act on the part of the Administrative Agent, the Swingline Lender, or any Lender, become immediately due and payable.
8.2 Reference to Credit Agreement. Reference is hereby made to Article VII (Events of Default) of the Credit Agreement for a full statement and enumeration of the Events of Default and the rights and remedies of the Administrative Agent, the Swingline Lender, the Collateral Agent, and the Lenders upon the occurrence and during the continuance of any Event of Default. The rights and remedies set forth herein are in addition to, and not in limitation of, any other rights or remedies available under the Credit Agreement, the other Loan Documents, or applicable law.
9. Records of Swingline Loans
9.1 Authority to Record. The Swingline Lender is hereby authorized and requested to record on its books and records, or on a schedule attached hereto and made a part hereof (the "Loan Schedule"), or on any continuation thereof, (a) the date and amount of each Swingline Loan made by the Swingline Lender to the Borrowers pursuant to the Credit Agreement, (b) the interest rate applicable thereto, (c) the date and amount of each payment or prepayment of principal thereof, and (d) the resulting unpaid principal balance of the Swingline Loans after giving effect to each such borrowing and repayment.
9.2 Effect of Failure to Record. The failure of the Swingline Lender to make any entry or notation on its books and records or on the Loan Schedule, or any error in making any such entry or notation, shall not affect the validity or enforceability of the Borrowers' obligations hereunder or under the Credit Agreement, and shall not limit or otherwise affect any obligation of the Borrowers to repay the Swingline Loans with interest as herein provided.
9.3 Prima Facie Evidence. The entries made by the Swingline Lender in its books and records or on the Loan Schedule shall constitute prima facie evidence of the existence and amounts of the Swingline Loans, the interest rates applicable thereto, and the payments of principal made thereon; provided, however, that the failure of the Swingline Lender to make such entries or any error therein shall not limit or otherwise affect the obligations of the Borrowers under this Note, the Credit Agreement, or the other Loan Documents.
10. Waivers
10.1 Waivers by Borrowers. Each Borrower hereby absolutely, irrevocably, and unconditionally waives, to the fullest extent permitted by applicable law:
(a) diligence in collecting or bringing suit against any Borrower, any Guarantor, or any other party liable on or in respect of this Note or the Obligations;
(b) presentment for payment of this Note;
(c) demand for payment of this Note;
(d) protest and notice of dishonor or nonpayment of this Note;
(e) notice of protest;
(f) notice of any default or Event of Default under this Note, the Credit Agreement, or any other Loan Document (except to the extent expressly required by the Credit Agreement);
(g) notice of acceleration or of intention to accelerate; and
(h) all other notices, demands, and acts of every kind and nature in connection with the delivery, acceptance, performance, default, or enforcement of this Note, except to the extent expressly required by the Credit Agreement or applicable law that cannot be waived.
10.2 No Waiver by Delay. Each Borrower hereby acknowledges and agrees that no extension, postponement, modification, amendment, or delay by the Swingline Lender in exercising any right, power, or remedy under this Note, the Credit Agreement, or any other Loan Document shall operate as or be construed as a waiver thereof or of any other right, power, or remedy; nor shall any single or partial exercise of any right, power, or remedy hereunder or under the Credit Agreement preclude any further or other exercise thereof or the exercise of any other right, power, or remedy. All rights, powers, and remedies of the Swingline Lender hereunder and under the Credit Agreement are cumulative and are not exclusive of any other rights, powers, or remedies available at law or in equity.
11. Expenses and Indemnification
11.1 Costs of Collection and Enforcement. The Borrowers jointly and severally agree to pay, on demand, all reasonable and documented out-of-pocket costs and expenses (including, without limitation, reasonable fees, charges, and disbursements of counsel to the Swingline Lender) incurred by the Swingline Lender in connection with the collection, enforcement, or preservation of any rights or remedies under this Note, including without limitation all costs and expenses incurred in connection with any workout, restructuring, or bankruptcy proceeding, to the extent provided in and subject to the limitations set forth in the Credit Agreement.
11.2 Reference to Credit Agreement. Reference is hereby made to the applicable provisions of the Credit Agreement governing expenses, indemnification, and costs of collection for a complete statement of the Borrowers' obligations in respect of such matters. The obligations of the Borrowers under this Section 11 shall survive the repayment of the Swingline Loans and the termination of this Note.
12. Amendments and Modifications
12.1 Amendment and Modification. This Note may not be amended, modified, or supplemented except in accordance with the provisions of the Credit Agreement governing amendments, waivers, and consents (including, without limitation, the provisions requiring the consent of the Required Lenders, the Swingline Lender, and/or the Administrative Agent, as applicable, for specified amendments, modifications, or waivers).
12.2 Waiver. No provision of this Note may be waived except by an instrument in writing signed by the Swingline Lender (or, to the extent required by the Credit Agreement, with the consent of the Required Lenders or other parties as specified therein). Any such waiver shall be effective only in the specific instance and for the specific purpose for which it is given.
13. Successors and Assigns
13.1 Binding Effect. This Note shall be binding upon the Borrowers and their respective successors and permitted assigns, and shall inure to the benefit of the Swingline Lender and its successors, endorsees, and assigns.
13.2 Restriction on Borrower Assignment. Neither Borrower may assign, delegate, or transfer its obligations under this Note without the prior written consent of the Swingline Lender and the Administrative Agent. Any attempted assignment, delegation, or transfer by either Borrower in violation of this Section 13.2 shall be null and void and of no force or effect.
13.3 Assignment by Swingline Lender. The Swingline Lender may assign its rights and obligations under this Note only in accordance with the provisions of the Credit Agreement governing assignments and participations by Lenders. Upon any such assignment, the assignee shall, to the extent of such assignment, have the same rights and benefits under this Note as it would have if it were the Swingline Lender hereunder.
14. Joint and Several Liability
14.1 Joint and Several Obligations. The obligations of Cascade Retail Holdings Inc. and Cascade Retail Operating Company LLC under this Note are joint and several. Each reference in this Note to "the Borrowers" shall mean each and all of the Borrowers, and any action required or permitted to be taken by "the Borrowers" shall be the joint and several obligation of each Borrower.
14.2 Acknowledgment of Benefit. Each Borrower hereby acknowledges that it will derive substantial direct and indirect benefit from the Swingline Loans evidenced by this Note and from the availability of the Senior Secured Asset-Based Revolving Credit Facility under the Credit Agreement. Each Borrower further acknowledges that the Swingline Lender would not make the Swingline Loans but for the joint and several obligations of the Borrowers hereunder and the guarantees, pledges, and other credit support provided under the Loan Documents.
15. Governing Law
This Note shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without regard to the conflicts of laws principles thereof (other than Section 5-1401 and Section 5-1402 of the New York General Obligations Law, which by their terms apply to this Note).
16. Submission to Jurisdiction; Venue
16.1 Submission to Jurisdiction. Each Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of:
(a) the United States District Court for the Southern District of New York; and
(b) the Supreme Court of the State of New York, New York County,
and any appellate courts from any of the foregoing, in any action or proceeding arising out of or relating to this Note, the Credit Agreement, or any other Loan Document, or for recognition or enforcement of any judgment, and each Borrower hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such court.
16.2 Waiver of Objection to Venue. Each Borrower hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, (a) any objection which it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Note, the Credit Agreement, or any other Loan Document in any court referred to in Section 16.1 above, and (b) the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. Each Borrower agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
16.3 Service of Process. Each Borrower irrevocably consents to service of process in the manner provided for notices in the Credit Agreement. Nothing in this Note shall affect the right of the Swingline Lender to serve process in any other manner permitted by applicable law.
17. Waiver of Jury Trial
EACH BORROWER AND THE SWINGLINE LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS NOTE, THE CREDIT AGREEMENT, ANY OTHER LOAN DOCUMENT, THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, OR THE ACTIONS OF THE SWINGLINE LENDER, THE ADMINISTRATIVE AGENT, OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF OR THEREOF. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS NOTE AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 17.
18. Severability
If any provision of this Note is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Note or the validity, legality, or enforceability of such provision in any other jurisdiction, and this Note shall be reformed, construed, and enforced in such jurisdiction to the fullest extent possible to give effect to the intent of the parties hereto. To the extent permitted by applicable law, the Borrowers and the Swingline Lender hereby waive any provision of law that renders any provision of this Note invalid, illegal, or unenforceable in any respect.
19. Conflict with Credit Agreement
In the event of any conflict or inconsistency between the terms and provisions of this Note and the terms and provisions of the Credit Agreement, the terms and provisions of the Credit Agreement shall govern and control. This Note is subject in all respects to the terms and provisions of the Credit Agreement, and the rights of the Swingline Lender hereunder shall be exercised in accordance with, and subject to the limitations set forth in, the Credit Agreement.
IN WITNESS WHEREOF, each of the undersigned has caused this Swingline Promissory Note to be duly executed and delivered as of the date first written above.
BORROWERS
CASCADE RETAIL HOLDINGS INC.
By: ________
Name: Nathaniel Voss
Title: Chief Executive Officer
CASCADE RETAIL OPERATING COMPANY LLC
By: Cascade Retail Holdings Inc., its sole member
By: ________
Name: Nathaniel Voss
Title: Chief Executive Officer of Cascade Retail Holdings Inc., the sole member
ACCEPTED AND ACKNOWLEDGED:
CRESCENT HARBOR BANK, NATIONAL ASSOCIATION, as Swingline Lender
By: ________
Name: Thomas Reiland
Title: Managing Director, ABL Origination
SCHEDULE A
SWINGLINE LOANS AND PAYMENTS OF PRINCIPAL
Instructions: The Swingline Lender is authorized to record on this Schedule the date and amount of each Swingline Loan, the date and amount of each payment or prepayment of principal, and the resulting unpaid principal balance. Entries recorded by the Swingline Lender on this Schedule shall constitute prima facie evidence of the amounts outstanding hereunder, provided that the failure of the Swingline Lender to make any such entry shall not limit or otherwise affect the obligations of the Borrowers under the Note or the Credit Agreement.
This Schedule is attached to and forms a part of that certain Swingline Promissory Note dated as of May 4, 2023, in the original principal amount of up to $25,000,000, made by Cascade Retail Holdings Inc. and Cascade Retail Operating Company LLC, as Borrowers, in favor of Crescent Harbor Bank, National Association, as Swingline Lender.
Date of Swingline Loan