Exhibit 10.1
[Execution]
AMENDMENT NO. 13 TO LOAN AND
SECURITY AGREEMENT
AMENDMENT NO. 13 TO LOAN AND
SECURITY AGREEMENT, dated as of October 30, 2008 (this
“Amendment No. 13”), entered into by and among
Wachovia Bank, National Association, successor by merger to
Congress Financial Corporation (Florida), in its capacity as agent
acting for and on behalf of the parties to the Loan Agreement (as
hereinafter defined) as lenders (in such capacity,
“Agent”), the parties to the Loan Agreement as lenders
(individually a “Lender” and collectively,
“Lenders”), Supreme International, LLC, a Delaware
limited liability company formerly known as Supreme International,
Inc. (“Supreme”), Jantzen, LLC, a Delaware limited
liability company formerly known as Jantzen, Inc.
(“Jantzen”), Perry Ellis Menswear, LLC, a Delaware
limited liability company formerly known as Perry Ellis Menswear,
Inc. (“Perry Ellis Menswear”), Perry Ellis Europe
Limited, a private limited company incorporated in England and
Wales formerly known as Farah Manufacturing (U.K.) Limited
(“Perry Europe”), Salant Holding, LLC, a Delaware
limited liability company formerly known as Salant Holding
Corporation (“Salant Holding” and together with
Supreme, Jantzen, Perry Europe and Perry Ellis Menswear, each
individually “Borrower” and collectively,
“Borrowers”), Perry Ellis International, Inc., a
Florida corporation (“Parent”), PEI Licensing, Inc., a
Delaware corporation (“PEI Licensing”), Jantzen
Apparel, LLC, a Delaware limited liability company formerly known
as Jantzen Apparel Corp. (“Jantzen Apparel”), Supreme
Real Estate I, LLC, a Florida limited liability company
(“Supreme I”), Supreme Real Estate II, LLC, a Florida
limited liability company (“Supreme II”), Supreme
Realty, LLC, a Florida limited liability company (“Supreme
Realty”), Supreme Munsingwear Canada Inc., a Canada
corporation (“Supreme Canada”), Perry Ellis Shared
Services Corporation, a Delaware corporation (“PE Shared
Services”), Winnsboro DC, LLC, a Delaware limited liability
company (“Winnsboro”), Tampa DC, LLC, a Delaware
limited liability company (“Tampa DC”), Perry Ellis
International Group Holdings Limited, a private company
incorporated under the laws of Ireland having its principal place
of business in the Bahamas (“Group Holdings”) and Perry
Ellis Real Estate, LLC, a Delaware limited liability company
formerly known as Perry Ellis Real Estate Corporation (“PE
Real Estate” and, together, with Parent, PEI Licensing,
Jantzen Apparel, Supreme I, Supreme II, Supreme Realty, Group
Holdings, PE Shared Services, Winnsboro, Tampa DC, and Supreme
Canada, each individually a “Guarantor” and
collectively, “Guarantors”).
W I T N E S
S E T H :
WHEREAS, Agent, Lenders, Borrowers
and Guarantors have entered into financing arrangements pursuant to
which Lenders (or Agent on behalf of Lenders) have made and may
make loans and advances and provide other financial accommodations
to Borrowers as set forth in the Loan and Security Agreement, dated
October 1, 2002, by and among Agent, Lenders, Borrowers and
Guarantors, as amended by Amendment No. 1 to Loan and Security
Agreement, dated June 19, 2003, Amendment No. 2 to Loan
and Security Agreement, dated September 22, 2003, Amendment
No. 3 to Loan and Security Agreement, dated December 1,
2003, Amendment No. 4 to Loan and Security Agreement, dated
February 25, 2004, Amendment No. 5 to Loan and Security
Agreement,
dated July 1, 2004, Amendment No. 6 to
Loan and Security Agreement, dated as of September 30, 2004,
Amendment No. 7 to Loan and Security Agreement, dated as of
February 26, 2005, Amendment No. 8 to Loan and Security
Agreement, dated as of September 30, 2005, Amendment
No. 9 to Loan and Security Agreement, dated as of
February 24, 2006, Amendment No. 10 to Loan and Security
Agreement, dated as of August 28, 2006, Amendment No 11 to
Loan and Security Agreement, dated as of November 29, 2006 and
Amendment No. 12 and Consent to Loan and Security Agreement,
dated as of December 6, 2006 (as the same may hereafter be
further amended, modified, supplemented, extended, renewed,
restated or replaced, the “Loan Agreement”, and
together with all agreements, documents and instruments at any time
executed and/or delivered in connection therewith or related
thereto, as from time to time amended, modified, supplemented,
extended, renewed, restated, or replaced, collectively, the
“Financing Agreements”);
WHEREAS, Borrowers and Guarantors
have requested that Agent and Lenders agree to make certain
amendments to the Loan Agreement, and Agent and Lenders are willing
to agree to such amendments, subject to the terms and conditions
set forth in this Amendment No. 13; and
WHEREAS, by this Amendment
No. 13, Agent, Lenders, Borrowers and Guarantors desire and
intend to evidence such amendments;
NOW, THEREFORE, in consideration of
the foregoing, the mutual agreements and covenants contained
herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions .
1.1 Additional Definitions
.
(a) “Amendment
No. 13” shall mean Amendment No. 13 to Loan and
Security Agreement by and among Agent, Lenders, Borrowers and
Guarantors, as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or
replaced.
(b) “Amendment No. 13
Effective Date” shall mean the first date on which all of the
conditions precedent to the effectiveness of Amendment No. 13
shall have been satisfied and/or waived.
(c) “Incremental
Facility” shall have the definition set forth in
Section 2.4 of the Loan Agreement.
(d) “Maximum Credit Increase
Effective Date” shall have the definition set forth in
Section 2.4 of the Loan Agreement.
1.2 Amendments to Definitions
.
(a) Each reference to the term
“Applicable Margin” in the Loan Agreement or any other
Financing Agreement is hereby amended to mean, at any time, as to
the Interest Rate for Prime Rate Loans and the Interest Rate for
Eurodollar Rate Loans
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the applicable percentage (on a per annum basis)
set forth below if the sum of (A) the Quarterly Average Excess
Availability for the immediately preceding fiscal quarter plus
(B) the Excess Cash as of the last day of such immediately
preceding fiscal quarter, is at or within the amounts indicated for
such percentage:
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Quarterly Average Excess
Availability plus Excess Cash
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Applicable
Prime
Rate Margin
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Applicable
Eurodollar
Rate Margin
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1
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$100,000,000 or more
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1.00
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%
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2.00
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%
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2
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Greater than or equal to $60,000,000 and less
than $100,000,000
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1.25
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%
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2.25
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%
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3
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Greater than or equal to $35,000,000 and less
than $60,000,000
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1.50
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%
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2.50
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%
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4
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Less than $35,000,000
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1.75
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%
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2.75
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%
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provided , that , (i) the Applicable Margin
shall be calculated and established once each fiscal quarter
(commencing with the fiscal quarter beginning November 1,
2008) and shall remain in effect until adjusted thereafter after
the end of the next fiscal quarter and (ii) the Applicable
Margin from the Amendment No. 13 Effective date through and
including October 31, 2008, shall be the amount for Tier 2 set
forth above.
(b) The definition of
“Commitment” in Section 1.19 of the Loan Agreement
is hereby deleted in its entirety and the following substituted
therefor:
“Commitment” shall mean,
at any time, as to each Lender, the principal amount set forth
below such Lender’s signature on the signatures pages hereto
designated as the Commitment or on Schedule 1 to the Assignment and
Acceptance Agreement pursuant to which such Lender became a Lender
hereunder in accordance with the provisions of Section 13.7
hereof, as the same may be adjusted from time to time in accordance
with the terms hereof; sometimes being collectively referred to
herein as “Commitments”.
(c) The definition of
“Eligible Factor Receivables” in Section 1.29 of
the Loan Agreement is hereby deleted in its entirety and the
following substituted therefor:
“Eligible Factor
Receivables” shall mean, as to each Borrower, Factor
Receivables arising from the sale of Accounts by such Borrower to a
Factor pursuant to and in accordance with the terms and conditions
of the Factoring Agreements of such Borrower with such Factor,
which are and continue to be acceptable to Agent based on the
criteria set forth below,
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less any charges, commissions, fees,
chargebacks, deductions, setoffs and other amounts payable to such
Factor; provided, that, regardless of the aggregate amount of
Factor Receivables or Receivables that might satisfy the criteria
so as to constitute Eligible Factor Receivables, in no event shall
the aggregate amount of the Factor Receivables that constitute
Eligible Factor Receivables be deemed to be more than $10,000,000
at any time. In general, subject to such limitation, Factor
Receivables shall be Eligible Factor Receivables of a Borrower if:
(i) the Accounts of such Borrower so sold to the Factor giving
rise to such Factor Receivable have been approved by such Factor
for its own credit risk and the sale of goods giving rise to such
Accounts so sold have been approved and accepted by such Factor in
accordance with the terms and conditions of the applicable
Factoring Agreements (and such Accounts do not constitute
“client risk” Accounts under the terms of the
arrangements of such Borrower with such Factor); (ii) such
Factor Receivable has been validly assigned by such Borrower to
Agent and is payable to Agent pursuant to the Factor Assignment
Agreement with the Factor obligated to pay such Factor Receivable;
(iii) Agent shall have received a Factor Assignment Agreement
duly authorized, executed and delivered by the Factor obligated in
respect of such Factor Receivable and such Factor Assignment
Agreement shall be in full force and effect and such Factor shall
be in compliance in all respects with the terms thereof;
(iv) such Factor Receivable is not unpaid after the date
specified for payment under the terms of the Factoring Agreements
applicable thereto; (v) such Factor Receivable is subject to
the first priority, valid and perfected security interest of Agent
and is not subject to any other security interest, pledge, lien,
claim or other encumbrance except those permitted under this
Agreement that are subject and subordinate to the security
interests of Agent pursuant to an intercreditor agreement in form
and substance satisfactory to Agent between the holder of such
security interest or lien and Agent; (vi) the Factoring
Agreements of such Borrower with the Factor obligated on such
Factor Receivable shall be in full force and effect and each party
to the Factoring Agreements with the Factor obligated on such
Factor Receivable shall be in compliance with the terms and
conditions thereof and no breach of such terms or default or event
of default thereunder shall exist or have occurred; (vii) the
Factor obligated in respect of such Factor Receivable shall not
have sent any notice of default or of the failure of such Borrower
to comply with any of the terms of the applicable Factoring
Agreements or otherwise notified any Borrower or Guarantor of the
intention of such Factor to cease or suspend payments to such
Borrower in respect of the Factor Receivable; (viii) there are
no facts, events or occurrences which would impair the validity,
enforceability or collectability of such Factor Receivable or delay
payment thereunder; (ix) the Accounts of such Borrower sold
giving rise to such Factor Receivable satisfy all of the conditions
for the purchase thereof by the Factor obligated thereon and the
approval and acceptance of such sale by such Factor in accordance
with the terms of the applicable Factoring Agreements and shall not
be subject to any chargeback or other right of such Factor to
reassign such Account to such Borrower
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(whether or not such Factor
exercises such right) or obligation of such Borrower to pay the
amount of such Account to such Factor, whether because the goods
sold giving rise to such Account have been rejected or returned by
the account debtor owing such Account or otherwise; (x) the
Accounts sold giving rise to such Factor Receivable are not unpaid
more than the earlier of sixty (60) days after the original
due date for them or ninety (90) days after the date of the
original invoice for them; (xi) such Accounts sold giving rise
to such Factor Receivable comply with the terms and conditions
contained in Section 7.2(b) of this Agreement.
The criteria for Eligible Factor
Receivables set forth above may only be changed and any new
criteria for Eligible Factor Receivables may only be established by
Agent in good faith based on either: (1) an event, condition
or other circumstance arising after the date hereof, or (2) an
event, condition or other circumstance existing on the date hereof
to the extent Agent has no written notice thereof from a Borrower
prior to the date hereof, in either case under clause (i) or
(ii) which adversely affects or could reasonably be expected
to adversely affect the Factor Receivables in the good faith
determination of Agent. Any Factor Receivables which are not
Eligible Factor Receivables shall nevertheless be part of the
Collateral.
(d) The definition of “Excess
Availability” in Section 1.40 of the Loan Agreement is
hereby is hereby deleted in its entirety and the following
substituted therefor:
“1.40 “Excess
Availability” shall mean, as to each Borrower, the amount, as
determined by Agent, calculated at any date, equal to: i) the
lesser of: (1) the Borrowing Base of such Borrower and
(2) the Loan Limit of such Borrower (in each case under
(i) or (ii) after giving effect to any Reserves other
than any Reserves in respect of Letter of Credit Accommodations
plus the Supplemental Availability Amount), minus ii) the sum of:
(1) the amount of all then outstanding and unpaid Obligations
of such Borrower (but not including for this purpose Obligations of
such Borrower arising pursuant to any guarantees in favor of Agent
and Lenders of the Obligations of the other Borrowers or the then
outstanding Letter of Credit Accommodations), plus (2) the
amount of all Reserves then established in respect of Letter of
Credit Accommodations, plus (3) the aggregate amount of all
then outstanding and unpaid trade payables and other obligations of
such Borrower which are outstanding more than sixty (60) days
past due as of such time (other than trade payables or other
obligations being contested or disputed by such Borrower in good
faith); provided, that, solely for the purposes of determining
Quarterly Average Excess Availability in connection with the
calculation of the Applicable Margin during any fiscal quarter,
Excess Availability shall be calculated without regard to the Loan
Limit of any Borrower at Borrower Agent’s option for any
monthly period within the fiscal quarter (the “Enhanced
Applicable Margin Computation”); provided, further, that;
(w) the allowed
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amount of Quarterly Excess
Availability (as used for the purpose of calculation for the
Enhanced Applicable Margin) that exceeds the Loan Limit is limited
to $75,000,000, (x) Borrower Agent shall have delivered
written notice to Agent, not less than five (5) Business Days
prior to the end of the fiscal quarter with respect to which
Borrower Agent elects the use of the Enhanced Applicable Margin
Computation, which notice shall be irrevocable and shall specify
that Borrower Agent elects the use of the Enhanced Applicable
Margin Computation and (y) Borrowers shall pay to Agent, for
the ratable benefit of the Lenders, a fee in respect of the use of
the Enhanced Applicable Margin Computation equal to $15,000 for
each month that Borrower Agent has elected the use of the Enhanced
Applicable Margin Computation, which fee shall be payable on the
last day of the effective fiscal quarter and may be charged to any
loan account of Borrowers maintained with Agent.”
(e) The definition of
“Inventory Loan Limit” in Section 1.65 of the Loan
Agreement is hereby deleted in its entirety and the following
substituted therefor:
“1.65 “Inventory Loan
Limit” shall mean, as to each Borrower, at any time, the
amount equal to sixty (60%) percent of the Maximum Credit
minus the then outstanding principal amount of Loans to the other
Borrowers based on Eligible Inventory (and including Letter of
Credit Accommodations to the extent provided in the definition of
the term Borrowing Base).”
(f) The definition of “Maximum
Credit” in Section 1.80 of the Loan Agreement is hereby
deleted in its entirety and the following substituted
therefor:
“1.80 “Maximum
Credit” shall mean $125,000,000 as such amount may be
increased pursuant to and in accordance with the terms of
Section 2.4 hereof.”
(g) The definition of “Prime
Rate” in Section 1.91 of the Loan Agreement is hereby
deleted in its entirety and the following substituted
therefor:
“1.91
“Prime Rate” shall mean, on any date, the greater of
(a) the rate from time to time publicly announced by Wachovia,
or its successors, as its prime rate, whether or not such announced
rate is the best rate available at such bank or (b) the
Federal Funds Rate in effect on such day plus one-half (
1
/
2 %) percent.”
2. Syndication Agent . The
Preamble to the Loan Agreement is hereby amended by adding Bank of
America, N.A. as Syndication Agent.
3. Loans .
3.1 Inventory Loan Limit .
Section 2.1(b)(iii) of the Loan Agreement is hereby deleted in
its entirety and the following substituted therefor:
(iii) the aggregate principal amount
of the Loans outstanding at any time to Borrowers based on the
Eligible Inventory of Borrowers (and including the then undrawn
amounts of Letter of Credit Accommodations used to purchase
Inventory to the extent set forth in Section 1.10 hereof)
shall not exceed the Inventory Loan Limit.
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3.2 Letter of Credit
Accommodations.
(a) Section 2.2(b) of the Loan
Agreement is hereby deleted in its entirety and the following
substituted therefor:
“(b) In addition to any
charges, fees or expenses charged by any bank or issuer in
connection with the Letter of Credit Accommodation, Borrowers shall
pay to Agent, for the benefit of Lenders a letter of credit fee at
a rate equal to (i) in connection with the daily outstanding
balance of the Letter of Credit Accommodations up to $5,000,000,
one and one half (1.50%) percent per annum for the immediately
preceding month (or part thereof), payable in arrears as of the
first day of each succeeding month and (ii) in connection with
the outstanding balance of all remaining Letter of Credit
Accommodations, the Applicable Eurodollar Rate Margin (on a per
annum basis)set forth in Section 1.6 for the immediately
preceding month (or part thereof), payable in arrears as of the
first day of each succeeding month, except that Agent may, and upon
the written direction of Required Lenders shall, require Borrowers
to pay to Agent for the benefit of Lenders such letter of credit
fee at a rate equal to the then effective applicable letter of
credit fee rate plus two (2%) percent per annum in
connection with the daily outstanding balance of the Letter of
Credit Accommodations for: (A) the period from and after the
date of termination hereof until Agent and Lenders have received
full and final payment of all Obligations (notwithstanding entry of
a judgment against any Borrower) and (B) the period from and
after the date of the occurrence of an Event of Default for so long
as such Event of Default is continuing as determined by Agent. Such
letter of credit fee shall be calculated on the basis of a three
hundred sixty (360) day year and actual days elapsed and the
obligation of Borrowers to pay such fee shall survive the
termination of this Agreement.”
(b) Section 2.2(e) of the Loan
Agreement is hereby amended by deleting the reference therein to
“$60,000,000” and substituting
“$40,000,000” therefor.
3.3 Increases in Maximum
Credit . The Loan Agreement is hereby amended by adding the
following new Section 2.4:
“2.4 Increases in Maximum
Credit .
(a) Borrower (or Borrower Agent on
behalf of such Borrower) may, at any time, request that Agent to
increase the Maximum Credit. Any such written request shall specify
the amount of the increase in the Maximum Credit that
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Borrowers are requesting; provided,
that, (i) the aggregate amount of any such incremental
increases in the Maximum Credit (the “Incremental
Facility”) does not cause the Maximum Credit to exceed
$200,000,000, (ii) such request shall be for an increase shall
be in increments of $25,000,000 not to exceed $75,000,000 at any
one time or in the aggregate during the term hereof, (iii) any
such request shall be irrevocable, except if the amount of increase
in Commitments from Lenders is less than the amount requested by
Borrowers, then Borrowers shall, in their sole discretion, be
entitled to withdraw any such request and no fee related to such
request shall be payable hereunder and (iv) in no event shall
more than one such written request to increase the Maximum Credit
be delivered to Agent in any calendar quarter .
(b) Upon the receipt by Agent of any
such written request to increase the Maximum Credit, Agent shall
notify each of the Lenders of such request and each Lender shall
have the option (but not the obligation) to increase the amount of
its Commitment by its Pro Rata Share of the amount of the increase
in the Maximum Credit requested by Borrowers as set forth in the
notice from Agent to such Lender. Each Lender shall notify Agent
within ten (10) days after the receipt of such notice from
Agent whether it is willing to so increase its Commitment, and
(ii) no Lender shall be obligated to provide such increase in
its Commitment and the determination to increase the Commitment of
a Lender shall be within the sole and absolute discretion of such
Lender. If the aggregate amount of the increases in the Commitments
received from the Lenders does not equal or exceed the amount of
the increase in the Maximum Credit requested by Borrowers, Agent
may seek additional increases from Lenders or Commitments from such
Eligible Transferees as it may determine, after consultation with
Borrowers. In the event Lenders (or Lenders and any such Eligible
Transferees, as the case may be) have committed in writing to
provide increases in their Commitments or new Commitments in an
aggregate amount in excess of the increase in the Maximum Credit
requested by Borrowers or permitted hereunder, Agent shall then
have the right to allocate such commitments, first to Lenders and
then to Eligible Transferees, in such amounts and manner as Agent
may determine, after consultation with Borrowers. If, in connection
with the arrangement of additional Commitments for the Incremental
Facility the resulting pricing with respect to any Loans or Letters
of Credit under the Incremental Facility would be greater than
otherwise applicable to Loans or Letters of Credit immediately
prior to the Maximum Credit Increase Effective Date, then on and
after the Maximum Credit Increase Effective Date, each Interest
Rate under this Agreement shall be automatically increased such
that in no event shall any Interest Rate applicable to Loans and
Letters of Credit in respect of the Incremental Facility exceeds
those applicable to other Loans and Letters of Credit
hereunder.
(c) The Maximum Credit shall be
increased by the amount of the increase in Commitments from Lenders
or new Commitments from Eligible Transferees, in each case selected
in accordance with this Section 2.4, for which Agent
has
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received Assignment and Acceptances
within sixty (60) days after the date of the request by
Borrowers for the increase or such earlier date as Agent and
Borrowers may agree (but subject to the satisfaction of the
conditions set forth below), whether or not the aggregate amount of
the increase in Commitments and new Commitments, as the case may
be, equal or exceed the amount of the increase in the Maximum
Credit requested by Borrowers in accordance with the terms
hereo