ANY OTHER LOAN DOCUMENT IN ANY COURT
REFERRED TO ABOVE. EACH OF THE BORROWERS HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM
TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
Each Borrower makes the following waiver knowingly, voluntarily, and
intentionally, and understands that the Agent and the Lender, in the
establishment and maintenance of their respective relationship with the
Borrowers contemplated by this Swing Line Note, are each relying thereon. EACH
BORROWER, EACH GUARANTOR, ENDORSER AND SURETY, AND THE SWING LINE LENDER, BY ITS
ACCEPTANCE HEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF
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OR RELATING TO THIS SWING LINE NOTE OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH BORROWER (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT THE AGENT AND THE SWING LINE LENDER
HAVE BEEN INDUCED TO ENTER INTO THE CREDIT AGREEMENT AND THIS NOTE BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS HEREIN.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Borrowers have caused this Swing Line Note to be duly
executed as of the date set forth above.
BORROWERS: STEIN MART, INC. By:
Name:
Title:
STEIN MART BUYING CORP. By:
Name:
Title:
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
To:
Wells Fargo Bank, National Association
Date:
One Boston Place, 18th Floor
Boston, MA 02108
Attention: Portfolio
Manager
Re: Amended and Restated Credit Agreement dated as of October [
], 2011 (as
amended, modified, supplemented or restated hereafter, the "Credit Agreement")
by and among (i) Stein Mart, Inc., a Florida corporation, for itself and as Lead
Borrower (in such capacity, the "Lead Borrower") for the other Borrowers party
thereto from time to time (individually, a "Borrower" and, collectively, the
"Borrowers"), (ii) the Borrowers party thereto from time to time, (iii) Wells
Fargo Bank, National Association, as administrative and collateral agent (in
such capacities, the "Agent") for its own benefit and the benefit of the other
Credit Parties referred to therein, (iv) Wells Fargo Bank, National Association,
as L/C Issuer, and (v) the lenders from time to time party thereto
(individually, a "Lender" and, collectively, the "Lenders"). All capitalized
terms used herein and not otherwise defined shall have the same meaning herein
as in the Credit Agreement.
The undersigned, a duly authorized and acting Responsible Officer of the Lead
Borrower, hereby certifies to you as follows:
1. No Default.
a. To the knowledge of the undersigned Responsible Officer, except as set
forth in Appendix I, no Default or Event of Default has occurred and is
continuing.
b. If a Default or Event of Default