DI GIORGIO CORP
EXH 10.17 - 1ST AMEND/RESTATED CR AGMT 11/15/99
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>3
<FILENAME>restated1stamend.txt
<DESCRIPTION>EXH 10.17 - 1ST AMEND/RESTATED CR AGMT 11/15/99
<TEXT>
Exhibit 10.17

                                                                       EXECUTION
                                                                            COPY


          FIRST  AMENDMENT  dated as of  February  3,  2004  (this  "Amendment")
executed in connection with RESTATED  CREDIT  AGREEMENT dated as of November 15,
1999 (the "Credit  Agreement")  among  DIGIORGIO  CORPORATION,  as Borrower (the
"Borrower"),  each of the financial institutions party thereto from time to time
(each a "Lender" and collectively, the "Lenders"), BT COMMERCIAL CORPORATION, in
its  capacity as agent for the  Lenders (in such  capacity,  the  "Agent"),  and
DEUTSCHE BANK AG NEW YORK, as Issuing Bank.  Terms which are capitalized in this
Amendment and not otherwise  defined shall have the meanings ascribed to them in
the Credit Agreement.

          WHEREAS,   the  Borrower  has  requested  that  the  Lenders  consider
extending the Expiration Date and modifying certain  restrictions on the ability
of the Borrower to pay dividends during its current fiscal year, and the Lenders
have  agreed  to do so on the  terms  and  subject  to the  satisfaction  of the
conditions contained herein;

          NOW,  THEREFORE,  in  consideration  of the mutual promises  contained
herein,  and  for  other  good  and  valuable  consideration,  the  receipt  and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:

          Section One. Amendment.  Effective as of the date hereof, on the terms
and subject to the  satisfaction  of the  conditions  contained in Section Three
hereof, the Credit Agreement is hereby amended as follows:

          (a)  Section  1.1  General  Definitions.  Section  1.1 is  amended  by
deleting the  definition of the term  Expiration  Date in its  entirety,  and by
substituting the following definition in lieu thereof:

          Expiration Date shall mean February 1, 2007.

          (b) Section 8.10. No Restricted  Payments.  Section 8.10 is amended by
deleting  clause  (ii) of  subparagraph  (a)  thereof  in its  entirety,  and by
substituting the following in lieu thereof:

          "(ii) the  Borrower  may declare  and pay ratably  dividends
          with respect to its capital stock to its  stockholders  each
          fiscal year,  during the sixty day period  commencing on the
          date  of  the  Agent's  receipt  of the  Borrower's  audited
          Financial  Statements  for  the  prior  fiscal  year,  in an
          aggregate amount not to exceed (A) in the fiscal year ending
          on or about  December  31,  2004,  the  lesser  of (I) fifty
          percent  (50%)  of Net  Income  for the  fiscal  year  ended
          December 27, 2003 plus  $4,000,000 and (II)  $10,000,000 and
          (B) in any fiscal  year other than the fiscal year ending on
          or about  December  31,  2004,  fifty  percent  (50%) of Net
          Income  for the  prior  fiscal  year;  provided  that (1) no
          Default or Event of Default  shall have occurred and then be
          continuing or would result therefrom,  (2) immediately after

<PAGE>

          giving effect to any such proposed dividend,  there shall be
          an  aggregate  amount  of  Unused  Availability  of at least
          $50,000,000,  in the case of any such proposed dividend paid
          in the fiscal year ending on or about  December 31, 2004, or
          $30,000,000,  in the case of any such proposed dividend paid
          in any fiscal  year other than the fiscal  year ending on or
          about  December 31, 2004, (3) the ratio of EBITDA to the sum
          of Interest  Expense,  dividends and taxes paid in cash, and
          Capital  Expenditures made, in each case with respect to the
          Borrower,  on a  consolidated  basis,  for the  fiscal  year
          immediately  prior to the  fiscal  year  during  which  such
          proposed  dividend  shall have been  paid,  shall be no less
          than 1.25 to 1.00,  such ratio to be  calculated  as if such
          dividend  shall  have  been  paid  on the  lst  day of  such
          preceding  fiscal  year and (4) at least ten  Business  Days
          prior to the date on which the Borrower proposes to pay such
          dividend,  the  Agent  shall  have  received  a  certificate
          prepared   under  the  direction  of  and  executed  by  the
          Borrower's  chief  executive   officer  or  chief  financial
          officer, pursuant to which such officer shall certify to the
          Lenders  that in  determining  Unused  Availability  for the
          purpose of clause (2) hereof,  the Borrower's trade payables
          have been paid in a manner  consistent  with the  Borrower's
          historical practices; and"

          (c) Annex I.  Lenders and  Commitment  Amounts.  Annex I to the Credit
Agreement is deleted in its  entirety,  and Annex I to this  Amendment is hereby
substituted in lieu thereof.

          Section Two. Resignation of Agent; Appointment of Successor Agent. The
Agent hereby gives notice to the Lenders and the Borrower of its  resignation as
Agent  under the Credit  Agreement,  effective  as of the date  hereof,  and the
Lenders and the Borrower hereby accept such resignation effective as of the date
hereof, notwithstanding the minimum notice requirement set forth in Section 10.9
(a) of the Credit Agreement. Notwithstanding the terms of such Section 10.9 (a),
Deutsche  Bank AG New York  shall  continue  to serve as Issuing  Bank,  and the
Lenders and the Borrower hereby confirm their agreement with the foregoing.  The
Lenders,  with the  Borrower's  approval,  hereby  appoint  Deutsche  Bank Trust
Company Americas, a New York banking corporation formerly known as Bankers Trust
Company,  to serve as successor  Agent,  Deutsche  Bank Trust  Company  Americas
hereby  accepts such  appointment,  and at all times on and after the  effective
date of this Amendment,  Deutsche Bank Trust Company Americas shall be the Agent
for all purposes  under the Credit  Agreement,  the Security  Agreement  and the
other Credit Documents.

          Section  Three.  Conditions  Precedent.  This  Amendment  shall become
effective on the date when all of the following conditions,  the satisfaction of
each of which is a condition  precedent to the  effectiveness of this Amendment,
shall have  occurred  or shall have been  waived in writing by the Agent and the
Lenders.

          (a)  The Agent shall have received the following:

<PAGE>

               (i)  a counterpart of this Amendment executed by the Borrower and
                    the Lenders;

               (ii) an agreement  executed by the  Borrower  with respect to the
                    payment of certain fees and expenses, as set forth therein;

               (iii)an Assignment and Assumption  Agreement duly executed by (x)
                    each  assigning  Lender  that is  selling a  portion  of its
                    Revolving Credit Commitment  concurrently with the execution
                    and  delivery  of this  Amendment,  and  (y) the  applicable
                    assignee Lender; and

               (iv) a duly executed replacement  Revolving Note, payable to each
                    Lender,  in a principal  amount  equal to the amount of such
                    Lender's  Revolving  Credit  Commitment,   calculated  after
                    giving  effect  to the  transactions  contemplated  to occur
                    under the Assignment and Assumption Agreements referenced in
                    clause (iii) above,

          (b) Upon the effectiveness of this Amendment,  all representations and
warranties  set  forth  in  the  Credit  Agreement  (except  for  such  inducing
representations and warranties that were only required to be true and correct as
of a prior date) shall be true and correct in all material respects on and as of
the  effective  date  hereof,  and no  Default  or Event of  Default  shall have
occurred and be continuing.

          (c) No event or  development  shall  have  occurred  since the date of
delivery of the  audited  Financial  Statements  for the fiscal year ended on or
about December 31, 2002 (the "Delivery Date") which event or development has had
or is reasonably likely to have a Material Adverse Effect.

          (d) The Borrower  shall have  delivered to the Agent a certificate  of
the Secretary of the Borrower (1) relating to the adoption of the resolutions of
the Borrower's Board of Directors  approving this Amendment and the transactions
contemplated  to occur hereunder and (2) certifying that no amendments have been
made to the Borrower's  Certificate of Incorporation  or the Borrower's  by-laws
since the Delivery Date.

          (e)  All  corporate  and  legal  proceedings  and  all  documents  and
instruments  executed or delivered in connection  with this  Amendment  shall be
satisfactory  in form and substance to the Agent and its counsel,  and the Agent
and its counsel shall have received all  information and copies of all documents
which the Agent and its counsel may have  requested in  connection  herewith and
the matters contemplated hereunder.

          (f) There shall be no action, suit or proceeding pending or threatened
against  the  Borrower  before  any  court  (including  any  bankruptcy  court),
arbitrator or governmental or administrative  body or agency which challenges or
relates to the consummation of this Amendment or the  transactions  contemplated
herein.

          (g) The Agent shall have received such further agreements, Amendments,
instruments  and  documents  as may be  necessary  or proper  in the  reasonable
opinion of the Agent and its counsel to carry out the provisions and purposes of
this Amendment.

<PAGE>

          Section Four. Representations and Warranties.

          (a) The Borrower has the corporate power, authority and legal right to
execute,  deliver and perform this Amendment,  and any instruments,  agreements,
documents  and  transactions  contemplated  hereby,  and has taken  all  actions
necessary  to  authorize  the  execution,   delivery  and  performance  of  this
Amendment,   and  any  instruments,   agreements,   documents  and  transactions
contemplated hereby;

          (b)  No  consent  of  any  Person  (including,   without   limitation,
shareholders  or creditors of the  Borrower,  as the case may be) other than the
Agent and the Lenders, and no consent, waiver, permit, approval or authorization
of,  exemption by, notice or report to, or  registration,  filing or declaration
with, any  governmental  authority is required in connection with the execution,
delivery, performance, validity or enforceability of this Amendment;

          (c) This  Amendment  has been duly executed and delivered on behalf of
the Borrower by the Borrower's  duly  authorized  officer,  and  constitutes the
legal, valid and binding  obligation of the Borrower,  enforceable in accordance
with its terms;

          (d) The Borrower is not in default under any indenture, mortgage, deed
of trust, material agreement or other material instrument to which it is a party
or by  which  it may be  bound.  Neither  the  execution  and  delivery  of this
Amendment,  nor the consummation of the transactions  herein  contemplated,  nor
compliance  with the  provisions  hereof or thereof  will (i) violate any law or
regulation applicable to the Borrower, or (ii) result in or cause a violation by
the Borrower of any order or decree of any court or government  instrumentality,
or (iii)  conflict  with,  or result in the breach of, or  constitute  a default
under,  any  indenture,  mortgage,  deed of trust,  material  agreement or other
material  instrument  to  which  the  Borrower  is a party or by which it may be
bound,  or (iv) result in the creation or  imposition  of any lien,  charge,  or
encumbrance  upon any of the  property of the  Borrower,  except in favor of the
Agent,  to  secure  the  Obligations,  or  (v)  violate  any  provision  of  the
Certificate  of  Incorporation,  By-Laws or any capital stock  provisions of the
Borrower;

          (e) No Event of Default has occurred and is continuing;

          (f) Since the Delivery Date, no change or event has occurred which has
had or is reasonably likely to have a Material Adverse Effect; and

          (g) The recitals  contained in this  Amendment are true and correct in
all material respects.

          Section Five. General Provisions.

          (a) Counterparts. This Amendment may be executed by the parties hereto
individually or in any combination,  in one or more counterparts,  each of which
shall  be an  original  and all of  which  shall  constitute  one  and the  same
agreement.

          (b) Credit  Agreement in Full Force and Effect.  All of the provisions
of the Credit Agreement shall remain in full force and effect from and after the
date hereof.

<PAGE>

          (c)  References to Credit  Agreement.  From and after the date hereof,
all references in the Credit Agreement to "this Agreement",  "hereof",  "herein"
or  similar  terms  shall  mean and refer to the  Credit  Agreement  as  amended
pursuant to this Amendment.

          (d)  Reliance  on   Representations   and  Warranties.   The  Borrower
acknowledges  that the Agent and the Lenders have relied upon,  and are entitled
to rely upon, the  representations  and  warranties  made by or on behalf of the
Borrower in connection with this Amendment as an inducement to the execution and
delivery of this Amendment by them.

          (e) Governing  Law. This  Amendment and the rights and  obligations of
the parties  hereunder  shall be construed in accordance with and be governed by
the internal substantive laws of the State of New York.

          (f)  Authorization  to  Filing  Financing  Statement;  Legal  Fees and
Expenses.  The  Borrower  hereby  authorizes  the  Agent  to  file  a  financing
statement,  in each jurisdiction deemed appropriate by the Agent, to reflect the
transfer  and  assignment  of the  security  interest  in the  Collateral  by BT
Commercial  Corporation,  as Agent to Deutsche Bank Trust Company  Americas,  as
Agent. The Borrower agrees to be liable for all of the Agent's  reasonable costs
and expenses  (including  reasonable fees and disbursements of the Agent's legal
counsel) paid or incurred in connection  with the  preparation of this Amendment
and the consummation of the transactions contemplated to occur hereunder.

          IN WITNESS  WHEREOF,  the  Borrower,  the Agent and the  Lenders  have
caused this  Amendment to be duly executed by its respective  officer  thereunto
duly authorized as of the day and year first above written.


                                       BORROWER:
                                       ---------

                                       DI GIORGIO CORPORATION

                                       By: /s/ Robert A. Zorn
                                       -----------------------
                                           Name:  Robert A. Zorn
                                           Title:  EVP


                                       FORMER AGENT:
                                       ------------

                                       BT COMMERCIAL CORPORATION

                                       By: /s/ Steve Friedlander
                                       -------------------------
                                           Name:  Steve Friedlander
                                           Title:  Director


<PAGE>


                                       SUCCESSOR AGENT:
                                       ---------------

                                       DEUTSCHE BANK TRUST COMPANY
                                       AMERICAS

                                       By:  /s/ Albert Fischetti
                                       -------------------------
                                            Name:  Albert Fischetti
                                            Title:  Director

                                       LENDERS:

                                       DEUTSCHE BANK TRUST COMPANY
                                       AMERICAS

                                       By:  /s/ Albert Fischetti
                                       -------------------------
                                            Name:  Albert Fischetti
                                            Title:  Director


                                       CONGRESS FINANCIAL CORPORATION

                                       By:  /s/ Dave Luce
                                       ------------------
                                            Name:  Dave Luce
                                            Title:  Vice President


                                       FLEET CAPITAL CORPORATION, as successor
                                       to Summit Business Capital Corp., d/b/a
                                       Fleet Capital Business Finance, f/k/a
                                       Summit Commercial Gibraltar Corp.

                                       By:  /s/ Michael Kerneklian
                                       ---------------------------
                                            Name:  Michael Kerneklian
                                            Title:  Vice President
                                                    Fleet Capital Corporation


<PAGE>


                                        PNC BANK

                                        By:  /s/ Parameswar Sivaramakrishnan
                                        ------------------------------------
                                             Name:  Parameswar Sivaramakrishnan
                                             Title:  Assistant Vice President
                                        LASALLE BANK NATIONAL ASSOCIATION

                                        By:  /s/ John Mostofi
                                        ---------------------
                                             Name:  John Mostofi
                                             Title:  Senior Vice President


                                        BANCO POPULAR

                                        By:  /s/ Jay Yarnell
                                        --------------------
                                             Name:  Jay Yarnell
                                             Title:  Vice President


<PAGE>



                                     ANNEX I

                         LENDERS AND COMMITMENT AMOUNTS

Name and Address of Lender                          Revolving Credit Commitment
--------------------------                          ---------------------------

Deutsche Bank Trust Company Americas                            $20,000,000

Domestic and Eurodollar
Lending Office and Address
for Notices:

222 South Riverside Plaza
Chicago, Illinois 60606

Attention:        Steven Friedlander
Telecopy No.:     (312) 537-1327
Telephone No.: (312) 537-1847

Congress Financial Corporation                                  $20,000,000

Domestic and Eurodollar
Lending Office and Address
for Notices:

1133 Avenue of the Americas
New York, New York 10036

Attention:        David Luce
Telecopy No.:     (212) 545-4283
Telephone No.: (212) 545-4413

Fleet Capital Corporation, as successor to
Summit Commercial/Gibraltar Corporation                         $15,000,000

Domestic and Eurodollar
Lending Office and Address
for Notices:

1633 Broadway - 29th Floor
New York, New York  10019

Attention:        Michael Kerneklian
Telecopy No.:     (646) 366-4395
Telephone No.: (212) 366-4377



<PAGE>



PNC Bank                                                        $12,500,000

Domestic and Eurodollar
Lending Office and Address
for Notices:

70 East 55th Street
New York, New York 10022

Attention:        Parameswar Sivaramakrishan
Telecopy No.: (646) 497-0324
Telephone No.: (646) 497-0254

LaSalle Bank National Associations                              $12,500,000

Domestic and Eurodollar
Lending Office and Address
for Notices:

120 South LaSalle Street
Chicago, Illinois 60603

Attention:        Dan Laven
Telecopy No.:     (312) 904-6450
Telephone No.: (312) 904-6036

Banco Popular                                                   $10,000,000

Domestic and Eurodollar
Lending Office and Address
for Notices:

817 Elizabeth Avenue
Elizabeth, NJ 07201

Attention:        Jay Yarnell
Telecopy No.:     (908) 353-0197
Telephone No.: (908) 353-0196



TOTAL COMMITMENTS                                               $90,000,000


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