ESCROW AGREEMENT

ESCROW AGREEMENT
among
Cascade Retail Holdings Inc.
Ridgeline Consumer Partners LLC
and
Colton Pacific Bank, National Association
Dated as of July 18, 2025
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ESCROW AGREEMENT
This ESCROW AGREEMENT (this "Agreement") is made and entered into as of July 18, 2025, by and among:
(1) Cascade Retail Holdings Inc., a Delaware corporation, with its principal office at 4200 Elliott Avenue West, Suite 1500, Seattle, Washington 98119 (the "Seller");
(2) Ridgeline Consumer Partners LLC, a Delaware limited liability company, with its principal office at 900 SW Fifth Avenue, Suite 2600, Portland, Oregon 97204 (the "Buyer"); and
(3) Colton Pacific Bank, National Association, a national banking association organized and existing under the laws of the United States of America, with its principal office at 701 Pike Street, Suite 1000, Seattle, Washington 98101 (the "Escrow Agent").
Each of Seller, Buyer, and Escrow Agent is sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Seller and Buyer (together with EverGreen Market Co. LLC, a Delaware limited liability company and wholly owned subsidiary of Seller ("EverGreen")) have entered into that certain Asset Purchase Agreement, dated as of June 13, 2025 (as it may be amended, supplemented, or otherwise modified from time to time, the "APA"), by and among Cascade Retail Holdings Inc., EverGreen Market Co. LLC, and Ridgeline Consumer Partners LLC, providing for the sale by Seller and EverGreen to Buyer of substantially all of the assets of the EverGreen Market business for an aggregate purchase price of Twenty-Five Million Dollars ($25,000,000) (the "Purchase Price"), subject to the terms and conditions set forth therein;
WHEREAS, the APA requires, as a condition to the closing of the transactions contemplated thereby, the deposit of Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Escrow Amount") into an escrow account to be maintained by the Escrow Agent, as security for certain post-closing indemnification obligations of Seller under Article IX of the APA;
WHEREAS, the Escrow Amount equals ten percent (10%) of the aggregate Purchase Price ($25,000,000 × 10% = $2,500,000), and the remaining portion of the Purchase Price, in the amount of Twenty-Two Million Five Hundred Thousand Dollars ($22,500,000), is to be delivered directly to Seller in cash at the closing;
WHEREAS, Buyer has obtained a representations and warranties insurance policy (the "R&W Insurance Policy") from Marlowe Asset Management Indemnity Insurance Co. with a policy limit of Twelve Million Five Hundred Thousand Dollars ($12,500,000) and a total retention of Six Hundred Twenty-Five Thousand Dollars ($625,000), of which Three Hundred Seventy-Five Thousand Dollars ($375,000) constitutes the Seller Retention Amount to be satisfied from the Escrow Funds and Two Hundred Fifty Thousand Dollars ($250,000) constitutes Buyer's retention;
WHEREAS, the Parties desire to establish the terms and conditions under which the Escrow Agent will hold, invest, and distribute the Escrow Amount and any earnings thereon; and
WHEREAS, the Escrow Agent has agreed to act as escrow agent with respect to the Escrow Funds upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants and agreements contained 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 1.1 — Defined Terms
As used in this Agreement, the following terms shall have the meanings set forth below:
"APA" means that certain Asset Purchase Agreement, dated as of June 13, 2025, by and among Cascade Retail Holdings Inc., EverGreen Market Co. LLC, and Ridgeline Consumer Partners LLC, as the same may be amended, supplemented, or otherwise modified from time to time in accordance with its terms.
"Basket Amount" means Three Hundred Seventy-Five Thousand Dollars ($375,000), being the tipping basket threshold established under the APA (calculated as 1.5% of the Purchase Price: $25,000,000 × 1.5% = $375,000). For the avoidance of doubt, once aggregate qualifying Losses exceed the Basket Amount, Buyer shall be entitled to recovery from the first dollar of such Losses (i.e., the Basket Amount operates as a tipping basket, not a deductible).
"Business Day" means any day other than a Saturday, a Sunday, or a day on which banking institutions in Seattle, Washington or Wilmington, Delaware are authorized or required by applicable law, regulation, or executive order to close.
"Buyer" means Ridgeline Consumer Partners LLC, a Delaware limited liability company, and its successors and permitted assigns.
"Claim Notice" has the meaning set forth in Section 4.2(a).
"Claimed Amount" has the meaning set forth in Section 4.2(a)(iii).
"Closing Date" means the date of the closing of the transactions contemplated by the APA, which is expected to occur on or about July 18, 2025.
"Dispute Notice" has the meaning set forth in Section 4.3(b).
"Disputed Amount" has the meaning set forth in Section 4.4(a).
"Escrow Account" means the segregated escrow account established and maintained by the Escrow Agent pursuant to Section 2.1 of this Agreement.
"Escrow Agent" means Colton Pacific Bank, National Association, a national banking association, and any successor escrow agent appointed in accordance with Section 5.6.
"Escrow Amount" means Two Million Five Hundred Thousand Dollars ($2,500,000) in cash, to be deposited into the Escrow Account on the Closing Date by or on behalf of Buyer in accordance with Section 2.1.
"Escrow Funds" means the Escrow Amount, together with all interest, dividends, earnings, gains, and other proceeds from the investment thereof, less any distributions, deductions, or disbursements made in accordance with the terms of this Agreement.
"Escrow Period" means the period commencing on the Closing Date and ending on the date that is eighteen (18) months after the Closing Date (which, assuming a Closing Date of July 18, 2025, is expected to be January 18, 2027), unless extended with respect to Pending Claims as provided in Section 4.3 and Section 4.6.
"Escrow Release Date" has the meaning set forth in Section 4.6(a).
"Fundamental Representations" means the representations and warranties designated as "Fundamental Representations" in the APA, including, without limitation, those relating to (a) organization and authority, (b) title to assets, (c) capitalization, (d) brokers' fees, and (e) taxes, which survive the Closing Date for a period of thirty-six (36) months following the Closing Date.
"General Representations" means all representations and warranties of Seller set forth in the APA other than the Fundamental Representations. The General Representations survive the Closing Date for a period of eighteen (18) months following the Closing Date, which period is coterminous with the base Escrow Period.
"Holdback Amount" has the meaning set forth in Section 4.6(a).
"Indemnification Cap" means (a) with respect to breaches of General Representations, Two Million Five Hundred Thousand Dollars ($2,500,000), which amount is equal to the Escrow Amount, and (b) with respect to breaches of Fundamental Representations, Twenty-Five Million Dollars ($25,000,000), which amount is equal to the full Purchase Price.
"Joint Written Instructions" has the meaning set forth in Section 4.1.
"Losses" has the meaning ascribed to such term in the APA.
"Mini-Basket Amount" means Twenty-Five Thousand Dollars ($25,000), being the de minimis per-claim threshold established under the APA. Individual claims for indemnification where the Losses attributable to such individual claim are less than the Mini-Basket Amount shall be excluded from aggregation toward the Basket Amount and shall not be eligible for indemnification from the Escrow Funds.
"Pending Claim" means any Claim Notice that has been delivered to the Escrow Agent in accordance with Section 4.2 prior to the expiration of the Escrow Period and that remains unresolved (whether disputed or otherwise pending) as of the Escrow Release Date.
"Permitted Investments" has the meaning set forth in Section 3.1.
"Purchase Price" means Twenty-Five Million Dollars ($25,000,000), being the aggregate purchase price payable by Buyer under the APA.
"R&W Insurance Policy" means the representations and warranties insurance policy (Policy No. VI-2025-RW-04871) issued by Marlowe Asset Management Indemnity Insurance Co. in favor of Buyer, with a policy limit of Twelve Million Five Hundred Thousand Dollars ($12,500,000) and a total retention of Six Hundred Twenty-Five Thousand Dollars ($625,000).
"Seller" means Cascade Retail Holdings Inc., a Delaware corporation, and its successors and permitted assigns.
"Seller Retention Amount" means Three Hundred Seventy-Five Thousand Dollars ($375,000), being the portion of the total retention under the R&W Insurance Policy that is allocated to Seller, to be satisfied solely from the Escrow Funds in accordance with Section 4.5 of this Agreement.
Section 1.2 — Interpretation; Construction
(a) Capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings ascribed to such terms in the APA.
(b) Unless the context otherwise requires, references in this Agreement to "Sections," "Articles," "Schedules," and "Exhibits" are to sections, articles, schedules, and exhibits of this Agreement.
(c) The headings and captions contained in this Agreement are included for convenience of reference only and shall not affect the meaning or interpretation of any provision of this Agreement.
(d) Words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other genders, as the context requires.
(e) The terms "hereof," "herein," "herewith," "hereby," and "hereunder" and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement.
(f) The word "including" and words of similar import, when used in this Agreement, shall mean "including, without limitation," unless otherwise specified.
(g) The word "or" shall not be exclusive.
(h) The Parties have participated jointly in the negotiation and drafting of this Agreement, and in the event of an ambiguity or question of intent or interpretation, this Agreement shall be construed as if drafted jointly by all Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.
ARTICLE II — ESTABLISHMENT OF ESCROW
Section 2.1 — Deposit of Escrow Amount
(a) On the Closing Date, Buyer shall deposit, or cause to be deposited, the Escrow Amount of Two Million Five Hundred Thousand Dollars ($2,500,000) by wire transfer of immediately available funds in United States dollars into the Escrow Account established and maintained by the Escrow Agent at Colton Pacific Bank, National Association, in accordance with the wire transfer instructions set forth in Exhibit C attached hereto. The Escrow Account shall be titled "Cascade/Ridgeline Indemnity Escrow," with the account number to be provided by the Escrow Agent to Seller and Buyer in writing no later than two (2) Business Days prior to the Closing Date.
(b) The Escrow Amount of $2,500,000 represents the difference between the aggregate Purchase Price of $25,000,000 and the cash payment of Twenty-Two Million Five Hundred Thousand Dollars ($22,500,000) to be delivered directly to Seller (or its designees) at the closing of the transactions contemplated by the APA. The deposit of the Escrow Amount into the Escrow Account on the Closing Date shall constitute payment by Buyer of a portion of the Purchase Price for all purposes under the APA.
(c) The Escrow Agent shall acknowledge receipt of the Escrow Amount in writing (which may be by electronic mail) to both Seller and Buyer within one (1) Business Day following the Escrow Agent's receipt of such funds.
Section 2.2 — Escrow Agent's Duties
(a) The Escrow Agent shall hold, safeguard, invest, and distribute the Escrow Funds solely in accordance with the express terms and conditions of this Agreement. The Escrow Agent shall not commingle the Escrow Funds with any other funds or assets held by the Escrow Agent, except as permitted under applicable banking law with respect to Permitted Investments.
(b) The Escrow Agent is not, and shall not be deemed to be, a party to, or bound by, the APA or any other agreement between Seller and Buyer (other than this Agreement). The Escrow Agent's duties and obligations are limited solely to those expressly set forth in this Agreement, and the Escrow Agent shall have no duty to inquire into, interpret, construe, or enforce any provision of the APA or any other agreement or document.
(c) The Escrow Agent shall maintain the Escrow Funds in a segregated account separate and apart from the Escrow Agent's own funds and the funds of any other depositor, client, or customer of the Escrow Agent.
Section 2.3 — Designation of Escrow Officer
(a) Diana Sorensen, Vice President, Escrow Services, shall serve as the Escrow Agent's designated escrow officer with responsibility for the day-to-day administration of this Agreement and the Escrow Account.
(b) The Escrow Agent may, from time to time, designate a replacement escrow officer by delivering written notice to Seller and Buyer identifying the replacement and providing contact information for such replacement. Any such designation shall become effective upon delivery of such notice. Until such notice is delivered, all communications to the Escrow Agent relating to this Agreement shall be directed to:
Diana Sorensen Vice President, Escrow Services Colton Pacific Bank, National Association 701 Pike Street, Suite 1000 Seattle, Washington 98101 Telephone: (206) 555-3700
Email: diana.sorensen@coltonpacificbank.com
ARTICLE III — INVESTMENT OF ESCROW FUNDS
Section 3.1 — Permitted Investments
The Escrow Agent shall invest and reinvest the Escrow Funds, at the joint written direction of Seller and Buyer (or, in the absence of such joint written direction, in the default investment specified in Section 3.2), in one or more of the following investments (each, a "Permitted Investment"):
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (including United States Treasury bills, notes, and bonds), in each case having a remaining maturity of not more than ninety (90) days from the date of investment;
(b) certificates of deposit or time deposits of Colton Pacific Bank, National Association or any other nationally recognized banking institution organized under the laws of the United States of America (or any state thereof) with total consolidated assets of not less than Ten Billion Dollars ($10,000,000,000), in each case having a remaining maturity of not more than ninety (90) days from the date of investment;
(c) money market mutual funds that are registered under the Investment Company Act of 1940, as amended, and that are rated at least "AAAm" (or the equivalent) by Standard & Pelvoran Financial Services LLC, Moody's Investors Service, Inc., or another nationally recognized statistical rating organization; and
(d) such other investments as Seller and Buyer shall jointly direct in writing, provided that no such investment shall be made unless the Escrow Agent has confirmed in writing that it is willing and able to administer such investment.
Section 3.2 — Default Investment
In the absence of joint written instructions from Seller and Buyer directing the investment of the Escrow Funds in one or more Permitted Investments, the Escrow Agent shall invest the Escrow Funds in the Colton Pacific Bank, N.A. Government Money Market Fund (Ticker: CPGMF) or a comparable successor fund maintained by the Escrow Agent that invests primarily in obligations of the United States Government and its agencies. The Parties acknowledge that amounts invested in the default investment are not insured by the Federal Deposit Insurance Corporation (FDIC) except to the extent such amounts are on deposit in a depository account and are within applicable FDIC insurance limits.
Section 3.3 — Earnings and Tax Reporting
(a) All interest, dividends, capital gains, and other income earned on the Escrow Funds (collectively, "Investment Income") shall be added to and become part of the Escrow Funds for all purposes of this Agreement. Investment Income shall be distributed along with, and as part of, the Escrow Funds in accordance with Article IV.
(b) For United States federal, state, and local income tax purposes, all Investment Income earned on the Escrow Funds shall be reported as the income of Seller (Employer Identification Number: 91-1847352), and Seller shall be responsible for payment of all income taxes attributable to such Investment Income, unless and until any portion of the Escrow Funds (including Investment Income) is distributed to Buyer in accordance with this Agreement. Upon any distribution to Buyer, the allocable portion of Investment Income distributed to Buyer shall be reported as income of Buyer for the taxable year in which such distribution occurs.
(c) Each of Seller and Buyer shall provide a properly completed Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification) or, if applicable, the appropriate Internal Revenue Service Form W-8, to the Escrow Agent prior to or on the Closing Date. In the event any Party fails to provide the applicable form, the Escrow Agent shall be authorized to withhold on any amounts distributable to such Party in accordance with applicable law.
(d) The Escrow Agent shall issue appropriate tax reporting forms, including Internal Revenue Service Form 1099-INT, Form 1099-DIV, Form 1042-S, or other applicable tax information returns, as required by the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder.
Section 3.4 — Investment Risk
Seller and Buyer hereby acknowledge and agree that: (a) the Escrow Agent shall not be liable or responsible for any loss of principal, income, or other diminution in the value of the Escrow Funds resulting from any Permitted Investment (including, without limitation, any decline in the market value of any security, any default by an issuer, or any loss of value of a money market fund), provided that the Escrow Agent has acted in accordance with the applicable investment directions delivered by Seller and Buyer pursuant to Section 3.1 or, in the absence of such directions, has invested the Escrow Funds in the default investment specified in Section 3.2; (b) the Escrow Agent does not guarantee the rate of return on, or the principal value of, any Permitted Investment; and (c) Permitted Investments may not be insured by the FDIC or any other governmental agency except to the extent expressly provided by applicable law.
ARTICLE IV — DISTRIBUTION OF ESCROW FUNDS
Section 4.1 — Joint Written Instructions
(a) The Escrow Agent shall distribute all or any portion of the Escrow Funds upon receipt of written instructions signed by both Seller (or its duly authorized representative) and Buyer (or its duly authorized representative) (such instructions, "Joint Written Instructions"), which Joint Written Instructions shall specify (i) the amount of Escrow Funds to be distributed, (ii) the identity of the payee or payees, and (iii) the wire transfer or other delivery instructions for each payee. A form of Joint Written Instructions is attached hereto as Exhibit B.
(b) The Escrow Agent shall make any distribution directed by Joint Written Instructions within three (3) Business Days following the Escrow Agent's receipt of such Joint Written Instructions, provided that the Joint Written Instructions are received by the Escrow Agent prior to 2:00 p.m. Pacific Time on a Business Day (and if received after such time, the three (3) Business Day period shall commence on the next following Business Day).
(c) The Escrow Agent shall be entitled to rely conclusively upon any Joint Written Instructions that appear on their face to bear the genuine signatures of duly authorized representatives of both Seller and Buyer, and the Escrow Agent shall have no duty or obligation to independently verify the authority or identity of the signatories.
Section 4.2 — Claim Notices and Claims Procedure
(a) Delivery of Claim Notice. If Buyer believes in good faith that it is entitled to indemnification from the Escrow Funds with respect to Losses arising under the APA, Buyer shall deliver to the Escrow Agent and to Seller a written notice (each such notice, a "Claim Notice"), substantially in the form of Exhibit A attached hereto, setting forth:
(i) a description in reasonable detail of the nature and factual basis of the claim giving rise to the asserted right to indemnification;
(ii) identification of the specific representation, warranty, covenant, or agreement of Seller set forth in the APA that Buyer alleges has been breached or with respect to which Buyer alleges a Loss has been incurred;
(iii) the aggregate dollar amount claimed by Buyer in respect of such claim (the "Claimed Amount"), which must equal or exceed Twenty-Five Thousand Dollars ($25,000) with respect to each individual claim (the Mini-Basket Amount) in order to be eligible for indemnification from the Escrow Funds; and
(iv) a reasonably detailed description of the basis for the calculation of the Claimed Amount, including, to the extent reasonably practicable, the specific categories and amounts of Losses that comprise the Claimed Amount.
(b) Aggregate Threshold. No distribution shall be made from the Escrow Funds in respect of indemnification for breaches of General Representations unless and until the aggregate amount of qualifying Losses (counting only individual claims each meeting or exceeding the Mini-Basket Amount of $25,000) exceeds the Basket Amount of Three Hundred Seventy-Five Thousand Dollars ($375,000) in the aggregate. Once such aggregate qualifying Losses exceed the Basket Amount, Buyer shall be entitled to recovery from the first dollar of all qualifying Losses (i.e., the Basket Amount operates as a "tipping basket" and not as a deductible). For the avoidance of doubt, individual claims for Losses of less than the Mini-Basket Amount shall be disregarded for all purposes of determining whether the Basket Amount has been exceeded.
(c) Limitation on Distributions for General Representation Breaches. Aggregate distributions from the Escrow Funds in respect of breaches of General Representations shall not exceed Two Million Five Hundred Thousand Dollars ($2,500,000), which is equal to the Indemnification Cap for General Representations. The Escrow Funds shall constitute the sole and exclusive recourse of Buyer against Seller for Losses arising out of or relating to breaches of General Representations, and Buyer shall have no right to seek recovery against any other assets or funds of Seller in respect of such breaches.
(d) Claims for Breaches of Fundamental Representations. For breaches of Fundamental Representations, Buyer may assert claims against Seller directly (in addition to seeking recovery from the Escrow Funds), subject to the Indemnification Cap for Fundamental Representations of Twenty-Five Million Dollars ($25,000,000), which is equal to the full Purchase Price. The Escrow Funds shall serve as a source of recovery for such claims but shall not be the exclusive source of recovery. The Fundamental Representations survive the Closing Date for a period of thirty-six (36) months, which extends beyond the base Escrow Period of eighteen (18) months.
Section 4.3 — Seller's Response to Claim Notice
(a) Within thirty (30) days following Seller's receipt of a Claim Notice delivered in accordance with Section 4.2 (the "Response Period"), Seller shall deliver to the Escrow Agent and Buyer a written response to such Claim Notice, which response shall:
(i) accept the Claimed Amount in whole or in part, specifying the amount accepted and authorizing the Escrow Agent to distribute such accepted amount to Buyer; or
(ii) dispute the Claimed Amount in whole or in part, setting forth in reasonable detail the factual and legal basis for such dispute (any such written dispute, a "Dispute Notice").
(b) Deemed Acceptance. If Seller fails to deliver a written response to a Claim Notice within the Response Period, Seller shall be deemed to have accepted the full Claimed Amount set forth in such Claim Notice, and the Escrow Agent shall distribute the Claimed Amount to Buyer within five (5) Business Days following the expiration of the Response Period.
(c) Partial Acceptance. If Seller's response accepts a portion of the Claimed Amount and disputes the remainder, the undisputed (accepted) portion shall be distributed to Buyer in accordance with Section 4.4(b), and the disputed portion shall be treated as a Disputed Amount in accordance with Section 4.4.
Section 4.4 — Disputed Claims
(a) Retention of Disputed Amount. If Seller delivers a Dispute Notice with respect to a Claim Notice, the disputed portion of the Claimed Amount (the "Disputed Amount") shall remain in the Escrow Account pending resolution of the dispute in accordance with this Section 4.4. The Escrow Agent shall not distribute any portion of the Disputed Amount except upon receipt of (i) Joint Written Instructions from Seller and Buyer, or (ii) a final, non-appealable order or judgment of a court of competent jurisdiction directing such distribution.
(b) Distribution of Undisputed Amounts. If Seller's Dispute Notice disputes only a portion of the Claimed Amount, the undisputed portion of the Claimed Amount (if any) shall be distributed by the Escrow Agent to Buyer promptly, and in any event within five (5) Business Days following the Escrow Agent's receipt of the Dispute Notice.
(c) Resolution of Disputed Claims. Disputed claims shall be resolved as follows:
(i) Negotiation. Seller and Buyer shall negotiate in good faith for a period of thirty (30) days following the delivery of the Dispute Notice (the "Negotiation Period") to resolve the dispute. During the Negotiation Period, each Party shall make available to the other such information as may be reasonably necessary to evaluate and resolve the disputed claim.
(ii) Arbitration or Litigation. If the dispute is not resolved by mutual agreement of Seller and Buyer within the Negotiation Period, either Party may submit the dispute to a court of competent jurisdiction in the State of Delaware (or the United States District Court for the District of Delaware, as applicable), consistent with the dispute resolution provisions set forth in Section 12.9 of the APA and Section 8.3 of this Agreement. The Escrow Agent shall have no obligation to participate in any such proceeding, except as may be required by applicable law or court order.
(iii) Distribution upon Resolution. Upon final resolution of a disputed claim, whether by mutual agreement reflected in Joint Written Instructions or by a final, non-appealable order of a court of competent jurisdiction, the Escrow Agent shall distribute the applicable Disputed Amount in accordance with such Joint Written Instructions or court order within five (5) Business Days following receipt thereof.
Section 4.5 — R&W Insurance Seller Retention
(a) The Parties acknowledge that Buyer has obtained the R&W Insurance Policy from Marlowe Asset Management Indemnity Insurance Co. providing representations and warranties insurance coverage in connection with the transactions contemplated by the APA. The R&W Insurance Policy has the following material terms:
(i) Policy limit: Twelve Million Five Hundred Thousand Dollars ($12,500,000);
(ii) Total retention: Six Hundred Twenty-Five Thousand Dollars ($625,000), comprised of (A) the Seller Retention Amount of Three Hundred Seventy-Five Thousand Dollars ($375,000), and (B) Buyer's retention of Two Hundred Fifty Thousand Dollars ($250,000);
(iii) Policy premium: approximately Three Hundred Twelve Thousand Five Hundred Dollars ($312,500), borne solely by Buyer.
(b) The Seller Retention Amount of $375,000 shall be satisfied solely from the Escrow Funds. Once aggregate qualifying Losses that have been paid or are payable from the Escrow Funds equal or exceed the Seller Retention Amount, the Seller Retention Amount obligation shall be deemed fully satisfied for purposes of the R&W Insurance Policy, and Buyer may thereafter seek recovery under the R&W Insurance Policy (subject to satisfaction of Buyer's own retention of $250,000 and the other terms and conditions of the R&W Insurance Policy).
(c) The Seller Retention Amount of $375,000 corresponds to the Basket Amount under the APA. Payments from the Escrow Funds in respect of indemnification claims under this Agreement shall simultaneously satisfy the Seller Retention Amount obligation under the R&W Insurance Policy on a dollar-for-dollar basis.
(d) Avoidance of Double Recovery. If Buyer receives or is entitled to receive any recovery under the R&W Insurance Policy with respect to a Loss for which an Escrow claim has been made or is pending under this Agreement, the Parties shall coordinate in good faith to ensure that Buyer does not receive a double recovery with respect to the same Loss. Any recovery by Buyer from the R&W Insurance Policy shall reduce, dollar-for-dollar, the amount distributable to Buyer from the Escrow Funds in respect of the same Loss. Buyer shall promptly notify Seller and the Escrow Agent of any recovery received under the R&W Insurance Policy that relates to a Loss for which a Claim Notice has been delivered.
Section 4.6 — Escrow Release at End of Escrow Period
(a) Release of Remaining Balance. On the date that is the later of (i) the last day of the Escrow Period (being the date that is eighteen (18) months after the Closing Date, which, assuming a Closing Date of July 18, 2025, is expected to be January 18, 2027) and (ii) five (5) Business Days after such date (such later date, the "Escrow Release Date"), the Escrow Agent shall distribute to Seller the entire remaining balance of the Escrow Funds, less:
(A) the aggregate Claimed Amounts of any Pending Claims (i.e., Claim Notices delivered in accordance with Section 4.2 prior to the expiration of the Escrow Period that remain unresolved as of the Escrow Release Date), which aggregate amount shall continue to be held in the Escrow Account pending resolution of such Pending Claims (such retained amount, the "Holdback Amount"); and
(B) any Disputed Amounts that are subject to a Dispute Notice and are pending resolution under Section 4.4.
(b) Resolution of Pending Claims. Following the Escrow Release Date, the Holdback Amount allocable to each Pending Claim shall be distributed as follows upon the resolution of such Pending Claim:
(i) to Buyer, in the amount of any finally determined or mutually agreed-upon Loss with respect to such Pending Claim; and
(ii) to Seller, the remainder of the Holdback Amount allocable to such Pending Claim after payment of the amount described in clause (i) above.
(c) Each such distribution shall be made by the Escrow Agent within five (5) Business Days following the date on which the Escrow Agent receives (i) Joint Written Instructions from Seller and Buyer directing such distribution, or (ii) a certified copy of a final, non-appealable order of a court of competent jurisdiction directing such distribution.
(d) Upon distribution of all remaining Escrow Funds (including the resolution and distribution of all Holdback Amounts), the Escrow Agent shall provide written confirmation to Seller and Buyer that the Escrow Account has been closed and that the Escrow Agent's obligations under this Agreement have terminated (subject to the survival provisions set forth in Article VII).
Section 4.7 — Partial Releases
(a) At any time prior to the Escrow Release Date, Seller and Buyer may deliver Joint Written Instructions directing the Escrow Agent to make a partial release of Escrow Funds to Seller, provided that the remaining balance of the Escrow Funds after giving effect to such partial release shall not be less than the sum of (i) the aggregate Claimed Amounts of all then-outstanding Claim Notices (whether or not disputed), plus (ii) any amounts reasonably anticipated by the Parties to be required to satisfy the Seller Retention Amount under the R&W Insurance Policy to the extent the Seller Retention Amount has not yet been fully satisfied.
(b) No partial release pursuant to this Section 4.7 shall reduce the balance of the Escrow Funds below the Seller Retention Amount of Three Hundred Seventy-Five Thousand Dollars ($375,000), unless the Seller Retention Amount has been fully satisfied by prior payments from the Escrow Funds in respect of qualifying Losses.
Section 4.8 — Manner of Distributions
(a) All distributions of Escrow Funds made by the Escrow Agent under this Agreement shall be made by wire transfer of immediately available funds in United States dollars to the bank account(s) designated by the recipient Party in accordance with the wire transfer instructions provided to the Escrow Agent.
(b) Each of Seller and Buyer shall provide its wire transfer instructions to the Escrow Agent on or prior to the Closing Date, in the form set forth in Exhibit C attached hereto. Either Party may update its wire transfer instructions by delivering written notice to the Escrow Agent (with a copy to the other Party) at least five (5) Business Days prior to any requested distribution. The Escrow Agent shall be entitled to rely on the most recent wire transfer instructions on file and shall bear no liability for any distribution made in accordance with such instructions.
ARTICLE V — ESCROW AGENT
Section 5.1 — Duties and Obligations of the Escrow Agent
(a) The duties and obligations of the Escrow Agent under this Agreement are purely ministerial and custodial in nature and shall be determined solely by the express provisions of this Agreement. The Escrow Agent shall not be required to exercise any discretion or independent judgment in carrying out its duties, except as expressly provided herein or as directed by Joint Written Instructions or court order.
(b) The Escrow Agent is not a party to, and shall have no obligations or liabilities under, the APA or any other agreement or document entered into by Seller and Buyer in connection with the transactions contemplated by the APA (other than this Agreement). The Escrow Agent shall have no duty to inquire into, interpret, construe, enforce, or monitor compliance with the APA or any other agreement or document, and the Escrow Agent shall not have any knowledge of or be deemed to have any knowledge of the terms or conditions of the APA, except to the extent that specific terms of the APA are expressly set forth in or incorporated by reference into this Agreement.
(c) The Escrow Agent shall act in good faith and shall exercise reasonable care in carrying out its duties and obligations under this Agreement. Nothing in this Agreement shall be construed to impose upon the Escrow Agent any duty or obligation greater than those expressly set forth herein.
Section 5.2 — Reliance by Escrow Agent
The Escrow Agent may rely upon, and shall be fully protected in acting or refraining from acting upon:
(a) any Joint Written Instructions, Claim Notice, Dispute Notice, court order, certificate, statement, notice, request, consent, agreement, or other instrument or document that the Escrow Agent reasonably believes to be genuine and to have been signed, sent, or presented by the proper party or parties or by a duly authorized representative thereof;
(b) the advice or opinions of legal counsel (including, without limitation, in-house counsel of the Escrow Agent) retained or consulted by the Escrow Agent with respect to any matter arising under or in connection with this Agreement, and the Escrow Agent shall not be liable for any action taken, omitted, or suffered in good faith in accordance with such advice or opinions;
(c) the assumption that any person purporting to give any notice, instruction, or direction on behalf of a party to this Agreement is duly authorized to do so, and the Escrow Agent shall not be required to make any independent investigation as to the authority of any such person; and
(d) any resolution, certification, or other document furnished to the Escrow Agent by any Party as to the identity and authority of persons authorized to act on behalf of such Party.
Section 5.3 — Limitation of Liability
(a) The Escrow Agent shall not be liable for any action taken or omitted to be taken by the Escrow Agent in good faith under or in connection with this Agreement, except to the extent that such action or omission constitutes the Escrow Agent's own gross negligence, willful misconduct, or material breach of this Agreement, as finally determined by a court of competent jurisdiction.
(b) Without limiting the generality of the foregoing, the Escrow Agent shall not be liable for:
(i) any loss, diminution in value, or other adverse consequence arising from any act, omission, default, insolvency, or failure of any depository, custodian, sub-custodian, clearing system, or counterparty with which any Escrow Funds or Permitted Investments are deposited or held, except to the extent caused by the Escrow Agent's gross negligence or willful misconduct;
(ii) any loss of principal, interest, income, or other amounts resulting from any Permitted Investment or from any delay in liquidating a Permitted Investment, provided that the Escrow Agent has acted in accordance with the applicable investment directions or the default investment provisions of this Agreement;
(iii) any delay or failure in performance that is not caused by the Escrow Agent, including, without limitation, delays resulting from acts of God, war, terrorism, epidemics, natural disasters, strikes, power outages, failures of communication systems, or any other event beyond the Escrow Agent's reasonable control;
(iv) the validity, enforceability, or sufficiency of this Agreement, the APA, or any other document or instrument delivered in connection with the transactions contemplated hereby or thereby;
(v) the identity, authority, or capacity of any person executing or purporting to execute any document delivered to the Escrow Agent; or
(vi) the correctness, accuracy, or completeness of any representations, warranties, covenants, agreements, or statements contained in the APA or any other agreement between Seller and Buyer.
(c) In no event shall the Escrow Agent be liable to any Party or any other person for any consequential, indirect, special, incidental, exemplary, or punitive damages (including, without limitation, lost profits and lost business opportunities), regardless of the form of action and whether or not the Escrow Agent has been advised of the possibility of such damages.
Section 5.4 — Indemnification of Escrow Agent
(a) Seller and Buyer shall, jointly and severally, indemnify, defend, and hold harmless the Escrow Agent and its affiliates, and each of their respective officers, directors, employees, agents, successors, and assigns (collectively, the "Escrow Agent Indemnified Parties"), from and against any and all losses, claims, damages, liabilities, judgments, settlements, penalties, fines, costs, and expenses (including, without limitation, reasonable attorneys' fees, court costs, and expenses of investigation and litigation) (collectively, "Escrow Agent Losses") arising out of, resulting from, or in connection with the execution, delivery, performance, or administration of this Agreement by the Escrow Agent, including, without limitation, any Escrow Agent Losses arising from the Escrow Agent's compliance with or reliance upon any Joint Written Instructions, Claim Notice, Dispute Notice, court order, or other direction or instruction received in accordance with this Agreement, except to the extent that such Escrow Agent Losses are finally determined by a court of competent jurisdiction to have resulted from the Escrow Agent's own gross negligence or willful misconduct.
(b) The indemnification obligations of Seller and Buyer under this Section 5.4 shall survive the termination of this Agreement and the resignation or removal of the Escrow Agent. As between Seller and Buyer, each shall bear fifty percent (50%) of any amounts payable to the Escrow Agent Indemnified Parties under this Section 5.4, unless otherwise agreed by Seller and Buyer.
Section 5.5 — Compensation of Escrow Agent
(a) The Escrow Agent shall be entitled to compensation for its services under this Agreement as set forth in Schedule A (Escrow Agent Fee Schedule) attached hereto and incorporated herein by reference. Such fees shall be payable by Seller and Buyer in accordance with the schedule set forth in Schedule A.
(b) Unless otherwise agreed by Seller and Buyer in Joint Written Instructions, the Escrow Agent's fees and expenses shall be borne equally by Seller (fifty percent (50%)) and Buyer (fifty percent (50%)).
(c) The Escrow Agent's fees and expenses shall not be payable from the Escrow Funds unless both Seller and Buyer so direct in Joint Written Instructions. In the absence of such Joint Written Instructions, the Escrow Agent shall invoice Seller and Buyer directly for their respective shares of the Escrow Agent's fees and expenses.
(d) In addition to the fees set forth in Schedule A, the Escrow Agent shall be entitled to reimbursement for all reasonable out-of-pocket expenses incurred in connection with the performance of its duties hereunder, including, without limitation, reasonable attorneys' fees and expenses incurred in connection with any legal proceedings relating to this Agreement or the Escrow Funds.
Section 5.6 — Resignation and Removal of Escrow Agent
(a) Resignation. The Escrow Agent may resign at any time by giving at least thirty (30) days' prior written notice of resignation to both Seller and Buyer. Such resignation shall become effective upon the earlier of (i) the appointment of a successor escrow agent in accordance with this Section 5.6, or (ii) the date that is sixty (60) days after the date of the Escrow Agent's notice of resignation (regardless of whether a successor has been appointed).
(b) Removal. Seller and Buyer, acting jointly, may remove the Escrow Agent at any time, with or without cause, by giving at least thirty (30) days' prior written notice of removal to the Escrow Agent.
(c) Appointment of Successor. Upon receipt of a notice of resignation from the Escrow Agent or delivery of a notice of removal to the Escrow Agent, Seller and Buyer shall jointly appoint a successor escrow agent reasonably acceptable to both Parties. If Seller and Buyer fail to jointly appoint a successor escrow agent within thirty (30) days after the date of the Escrow Agent's notice of resignation or the Parties' notice of removal, the Escrow Agent may, at its sole election:
(i) petition a court of competent jurisdiction in the State of Delaware (or the United States District Court for the District of Delaware) for the appointment of a successor escrow agent; or
(ii) deposit the Escrow Funds with such court pending appointment of a successor escrow agent, at which point the Escrow Agent's obligations under this Agreement shall immediately cease and terminate (subject to the survival of the indemnification obligations of Seller and Buyer under Section 5.4).
(d) Transfer to Successor. Upon appointment of a successor escrow agent, the resigning or removed Escrow Agent shall, within ten (10) Business Days, transfer and deliver the Escrow Funds (together with all records and documents relating to the Escrow Account) to the successor escrow agent. The successor escrow agent shall thereupon assume all of the duties and obligations of the Escrow Agent under this Agreement, and all references in this Agreement to the "Escrow Agent" shall thereafter be deemed to refer to such successor escrow agent.
(e) Discharge of Outgoing Escrow Agent. Upon transfer of the Escrow Funds to a successor escrow agent in accordance with this Section 5.6, the resigning or removed Escrow Agent shall be fully discharged from all further duties and obligations under this Agreement (except for obligations that expressly survive such resignation or removal, including the indemnification obligations of Seller and Buyer under Section 5.4 with respect to actions taken or omissions occurring during the outgoing Escrow Agent's tenure).
Section 5.7 — Conflicting Instructions; Interpleader
(a) If at any time the Escrow Agent receives conflicting, inconsistent, or incompatible instructions, notices, or claims from Seller and Buyer, or if the Escrow Agent is uncertain as to the proper course of action under this Agreement, the Escrow Agent may, in its sole and absolute discretion:
(i) refrain from taking any action (other than continuing to hold and invest the Escrow Funds in accordance with Article III) until the Escrow Agent receives (A) Joint Written Instructions resolving such conflict or uncertainty, or (B) a final, non-appealable order of a court of competent jurisdiction directing the Escrow Agent to take specific action; or
(ii) file an interpleader action or other appropriate legal proceeding in any court of competent jurisdiction in the State of Delaware (or the United States District Court for the District of Delaware), naming Seller, Buyer, and any other person or entity claiming an interest in the Escrow Funds as parties thereto, and deposit the Escrow Funds (or any disputed portion thereof) with such court.
(b) Upon deposit of the Escrow Funds (or any disputed portion thereof) with a court of competent jurisdiction in accordance with this Section 5.7, the Escrow Agent shall be fully released and discharged from all further obligations under this Agreement with respect to the deposited funds.
(c) All costs, expenses, and fees (including reasonable attorneys' fees) incurred by the Escrow Agent in connection with any interpleader action or proceeding under this Section 5.7 shall be borne equally by Seller (fifty percent (50%)) and Buyer (fifty percent (50%)), and Seller and Buyer shall, jointly and severally, indemnify the Escrow Agent in respect of such costs, expenses, and fees in accordance with Section 5.4.
ARTICLE VI — REPRESENTATIONS AND WARRANTIES
Section 6.1 — Representations of Seller
Seller hereby represents and warrants to Buyer and the Escrow Agent as of the date hereof and as of the Closing Date as follows:
(a) Organization and Good Standing. Seller is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware.
(b) Power and Authority. Seller has full corporate power and authority to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby.
(c) Authorization; Binding Effect. The execution, delivery, and performance of this Agreement by Seller have been duly authorized by all necessary corporate action on the part of Seller. This Agreement has been duly executed and delivered by Seller and constitutes a valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(d) No Conflict. The execution, delivery, and performance of this Agreement by Seller do not and will not (i) violate or conflict with the certificate of incorporation, bylaws, or other organizational documents of Seller, (ii) violate any applicable law, regulation, order, judgment, or decree binding upon Seller, or (iii) result in any breach of, or constitute a default under, any material contract, agreement, or instrument to which Seller is a party.
Section 6.2 — Representations of Buyer
Buyer hereby represents and warrants to Seller and the Escrow Agent as of the date hereof and as of the Closing Date as follows:
(a) Organization and Good Standing. Buyer is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware.
(b) Power and Authority. Buyer has full limited liability company power and authority to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby.
(c) Authorization; Binding Effect. The execution, delivery, and performance of this Agreement by Buyer have been duly authorized by all necessary limited liability company action on the part of Buyer. This Agreement has been duly executed and delivered by Buyer and constitutes a valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(d) No Conflict. The execution, delivery, and performance of this Agreement by Buyer do not and will not (i) violate or conflict with the certificate of formation, limited liability company agreement, or other organizational documents of Buyer, (ii) violate any applicable law, regulation, order, judgment, or decree binding upon Buyer, or (iii) result in any breach of, or constitute a default under, any material contract, agreement, or instrument to which Buyer is a party.
Section 6.3 — Representations of Escrow Agent
The Escrow Agent hereby represents and warrants to Seller and Buyer as of the date hereof and as of the Closing Date as follows:
(a) Organization and Existence. The Escrow Agent is a national banking association duly organized and existing under the laws of the United States of America, and holds all licenses, authorizations, and permits necessary to conduct its business as presently conducted.
(b) Power and Authority. The Escrow Agent has full power and authority to execute, deliver, and perform this Agreement and to carry out its duties and obligations as escrow agent hereunder.
(c) No Conflict. The execution, delivery, and performance of this Agreement by the Escrow Agent do not and will not (i) violate or conflict with the articles of association, bylaws, or other organizational documents of the Escrow Agent, (ii) violate any applicable law, regulation, order, judgment, or decree binding upon the Escrow Agent, or (iii) result in any breach of, or constitute a default under, any material contract, agreement, or instrument to which the Escrow Agent is a party.
(d) Authorization; Binding Effect. This Agreement has been duly authorized, executed, and delivered by the Escrow Agent and constitutes a valid and binding obligation of the Escrow Agent, enforceable against the Escrow Agent in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and by general principles of equity.
ARTICLE VII — TERMINATION
Section 7.1 — Termination
This Agreement shall terminate automatically, without any further action by any Party, upon the later of:
(a) the distribution of all Escrow Funds in accordance with the terms of this Agreement (including the distribution of all amounts held in respect of Pending Claims and Holdback Amounts); and
(b) the final resolution of all Pending Claims and the distribution of all Holdback Amounts in accordance with Section 4.6.
Notwithstanding the foregoing, Article V (including, without limitation, Section 5.3 (Limitation of Liability), Section 5.4 (Indemnification of Escrow Agent), and Section 5.5 (Compensation of Escrow Agent)) and this Article VII shall survive the termination of this Agreement and shall continue in full force and effect until all obligations thereunder have been fully satisfied.
Section 7.2 — Effect of Termination
Upon termination of this Agreement in accordance with Section 7.1, the Escrow Agent shall have no further duties, obligations, or liabilities under or in connection with this Agreement, except as expressly set forth in the surviving provisions of this Agreement. Upon termination, the Escrow Agent shall close the Escrow Account and provide written confirmation of such closure to Seller and Buyer.
ARTICLE VIII — MISCELLANEOUS PROVISIONS
Section 8.1 — Notices
(a) All notices, instructions, requests, consents, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given and received (i) when delivered personally, (ii) on the Business Day following deposit with a nationally recognized overnight courier service for next Business Day delivery, with delivery charges prepaid, or (iii) when sent by email (with confirmation of receipt by the recipient, which confirmation may be by reply email or other written acknowledgment), in each case addressed as follows:
If to Seller:
Cascade Retail Holdings Inc. 4200 Elliott Avenue West, Suite 1500 Seattle, Washington 98119
Attention: Renata Saldívar, General Counsel
Email: rsaldivar@cascaderetail.com
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 1301 Second Avenue, Suite 3400 Seattle, Washington 98101
Attention: Sandra Tung
Email: stung@calderwoodharkness.com
If to Buyer:
Ridgeline Consumer Partners LLC 900 SW Fifth Avenue, Suite 2600 Portland, Oregon 97204
Attention: Russell Ingram, Chief Financial Officer
Email: ringram@ridgelinecp.com
with a copy (which shall not constitute notice) to:
Holloway Breck & Associates LLP 1801 California Street, Suite 3100 Denver, Colorado 80202
Attention: Nathan Ostroff
Email: nostroff@hollowaybreck.com
If to Escrow Agent:
Colton Pacific Bank, National Association 701 Pike Street, Suite 1000 Seattle, Washington 98101
Attention: Diana Sorensen, Escrow Officer
Email: diana.sorensen@coltonpacificbank.com
(b) Any Party may change its address or other contact information for purposes of this Section 8.1 by giving written notice of such change to the other Parties in accordance with this Section 8.1. Such change shall be effective upon receipt of such notice by the other Parties.
Section 8.2 — Governing Law
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without giving effect to any choice-of-law or conflict-of-laws principles, rules, or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
Section 8.3 — Jurisdiction; Venue
(a) Each Party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of (i) the Court of Chancery of the State of Delaware (or, if the Court of Chancery declines jurisdiction, the Superior Court of the State of Delaware or the United States District Court for the District of Delaware) for the resolution of any dispute, claim, or controversy arising out of, relating to, or in connection with this Agreement or the transactions contemplated hereby, including any question regarding its existence, validity, interpretation, performance, breach, or termination.
(b) Each Party hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim, or otherwise, in any action or proceeding with respect to this Agreement: (i) any claim that it is not personally subject to the jurisdiction of the courts identified in Section 8.3(a) for any reason other than the failure to lawfully serve process; (ii) that it or its property is immune from any legal process issued by such courts; and (iii) that any action or proceeding commenced in any such court is brought in an inconvenient forum.
Section 8.4 — Waiver of Jury Trial
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, 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, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF ANY SUCH ACTION OR PROCEEDING, (B) IT HAS CONSIDERED AND UNDERSTANDS THE IMPLICATIONS OF THIS WAIVER, (C) IT MAKES THIS WAIVER VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.4.
Section 8.5 — Entire Agreement
This Agreement (together with the APA, the Schedules and Exhibits hereto, and the other Transaction Documents (as defined in the APA)) constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior negotiations, agreements, understandings, representations, and warranties, whether written or oral, between or among any of the Parties with respect to such subject matter. No Party shall have any rights, obligations, or liabilities with respect to the subject matter hereof except as expressly set forth in this Agreement.
Section 8.6 — Amendments and Waivers
(a) No amendment, modification, or supplement to any provision of this Agreement shall be effective unless made in a writing signed by all three Parties (Seller, Buyer, and Escrow Agent).
(b) No waiver of any provision of this Agreement or any right, power, or remedy hereunder shall be effective unless made in a writing 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 under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any other rights or remedies available at law, in equity, or otherwise.
Section 8.7 — Successors and Assigns
(a) This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
(b) No Party may assign, delegate, or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Parties, and any attempted assignment, delegation, or transfer without such consent shall be null and void; provided, however, that Buyer may, without the consent of Seller or the Escrow Agent, assign all or any portion of its rights (but not its obligations) under this Agreement to (i) any affiliate of Buyer, or (ii) Pinnacle Ridge Lending LLC (or any successor thereto) for collateral security purposes in connection with any credit facility or financing arrangement entered into by Buyer. Any such assignment by Buyer shall not relieve Buyer of its obligations under this Agreement.
Section 8.8 — Counterparts; Electronic Execution
(a) This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same instrument.
(b) Delivery of an executed counterpart of a signature page to this Agreement by facsimile transmission, by email in portable document format (.pdf), or by any other electronic means intended to preserve t