ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.
2
EACH OF THE BORROWERS IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS SWING LINE NOTE OR 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 Administrative Agent and the Swing Line
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 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 ADMINISTRATIVE 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 PAGES FOLLOW]
3
IN WITNESS WHEREOF, the Borrowers have caused this Swing Line Note to be duly
executed as of the date set forth above.
BORROWERS: DESTINATION MATERNITY CORPORATION
CAVE SPRINGS, INC.
By:
Name:
Title:
Swing Line Note
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: Credit Agreement dated as of November 1, 2012 (as amended, modified,
supplemented or restated hereafter, the "Credit Agreement") by and among
(i) Destination Maternity Corporation, a Delaware 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) the
Guarantors party thereto from time to time, (iv) Wells Fargo Bank, National
Association, as administrative agent and collateral agent (in such capacity, the
"Administrative Agent") for its own benefit and the benefit of the other Secured
Parties referred to therein, (iv) Wells Fargo Bank, National Association, as L/C
Issuer, and (vi) 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