CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS FILO NOTE OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT
THAT ANY CREDIT PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS FILO NOTE OR ANY OTHER LOAN DOCUMENT AGAINST ANY BORROWER OR
ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
DB1/ 97581352.1
2
EACH BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY 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 FILO IN
ANY COURT REFERRED TO ABOVE. EACH BORROWER HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY 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 each
Borrower contemplated by this FILO Note, are each relying thereon. EACH BORROWER
AND ENDORSER, AND THE LENDER, BY ITS ACCEPTANCE HEREOF, HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY 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 FILO NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH BORROWER AND THE LENDER, BY
ITS ACCEPTANCE HEREOF (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 IT HAS BEEN INDUCED TO ENTER INTO THIS FILO NOTE BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS HEREIN.
[SIGNATURE PAGES FOLLOW]
DB1/ 97581352.1
3
IN WITNESS WHEREOF, each Borrower has caused this FILO Note to be duly executed
as of the date set forth above.
BORROWERS:
DESTINATION XL GROUP, INC.
By: Name: Title:
CMRG APPAREL, LLC
By: Name: Title:
Signature Page to FILO Note
DB1/ 97581352.1
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Date of Certificate:
of America, N.A., as Agent Ladies and Gentlemen:
Reference is made to the Seventh Amended and Restated Credit Agreement dated as
of May 24, 2018 (as amended, restated, supplemented or otherwise modified and in
effect from time to time, the "Credit Agreement") by, among others, (i)
DESTINATION XL GROUP, INC., 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) Bank of America, N.A., as
administrative agent and collateral agent (in such capacities, the "Agent") for
its own benefit and the