EXHIBIT 10.39
Amendment No. 8, dated as of September 26, 1996 to Credit Agreement
dated as of February 10, 1993, among Di Giorgio Corporation, as
Borrower, the financial institutions parties thereto as Lenders, BT
Commercial Corporation, as Agent for the Lenders, and Bankers Trust
Company as Issuing Bank.
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EXECUTION COPY
AMENDMENT AND CONSENT NO. 8, dated as of September 26, 1996
("Amendment No. 8") to CREDIT AGREEMENT dated as of February 10, 1993
(as amended through the date hereof, the "Credit Agreement") among
DI GIORGIO CORPORATION, as Borrower, the financial institutions parties
thereto as LENDERS, BT COMMERCIAL CORPORATION, as Agent for the Lenders,
and BANKERS TRUST COMPANY, as Issuing Bank. Terms which are capitalized
herein and not otherwise defined shall have the meanings given to such
terms in the Credit Agreement.
WHEREAS, the Borrower has requested the Lenders to consider
(i) increasing the level of permissible investments which the Borrower
may make in the form of Customer Notes and (ii) permitting Price Parkway
Realty Corp., a New York corporation and a Subsidiary of the Borrower
("Price Parkway"), to merge with and into the Borrower, and the Lenders
have agreed to the foregoing, on the terms and subject to the
fulfillment of the conditions set forth in this Amendment No. 8;
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 Borrower
and the Lenders hereby agree as follows:
Section One. Amendment. Effective upon the fulfillment of the
conditions precedent set forth in Section Four hereof, the Credit
Agreement is hereby amended by (i) deleting the definition of the term
Farmingdale Subsidiary from Section 1.1 and by substituting the
following in lieu thereof, and (ii) deleting subsection (a) of Section
8.11 in its entirety and by substituting the following in lieu thereof:
"Farmingdale Subsidiary shall mean MF Corp., a New York
corporation and a Subsidiary of the Borrower, and its
successors and assigns."
"(a) Advances or loans evidenced by the Customer Notes,
provided that the sum of (i) the aggregate unpaid
principal balance of such Customer Notes outstanding at
any one time, plus (ii) the aggregate amount of the
Borrower's contingent liabilities in respect of the
guarantees permitted under Section 8.9(f) hereof, plus
(iii) the aggregate amount of all repurchase obligations
or other contingent liabilities of the Borrower in
respect of such Customer Notes outstanding at any one
time, may not exceed $20,000,000 at any one time, and
provided further that the aggregate amount of any such
advances or loans outstanding at any one time to any
obligor on such Customer Notes, plus the amount of the
Borrower's contingent liabilities in respect of its
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guarantees of such obligor's indebtedness, liabilities
or other obligations, may not exceed $3,000,000;"
Section Two. Consent. Effective upon the fulfillment of the
conditions set forth in Section Four hereof, the Lenders hereby consent
to the corporate merger of Price Parkway with and into the Borrower and
agree that such merger shall not be deemed to be a breach or violation
of Section 8.8, provided that the Borrower is the survivor of such
merger and provided further that the representation and warranty made by
the Borrower in Section Three (e) of this Amendment No. 8 is true and
correct on the effective date of such merger, as if remade in full on
such date.
Section Three. Representations and Warranties. To induce the
Lenders to enter into this Amendment No. 8, the Borrower warrants and
represents to the Lenders as follows:
(a) the recitals contained in this Amendment No. 8 are true
and correct in all respects;
(b) after giving effect to this Amendment No. 8, all of the
representations and warranties contained in the Credit Agreement and
each other Credit Document to which the Borrower is a party continue to
be true and correct in all material respects as of the date hereof, as
if repeated as of the date hereof, except for such representations and
warranties which, by their terms, are only made as of a previous date;
(c) the execution, delivery and performance of this
Amendment No. 8 by the Borrower is within its corporate powers, has been
duly authorized by all necessary corporate action, the Borrower has
received all necessary consents to and approvals for the execution,
delivery and performance of this Amendment No. 8 (if any shall be
required) and this Amendment No. 8 does not and will not contravene or
conflict with any provision of law or of the charter or by-laws of the
Borrower, or with the terms or provisions of any other document or
agreement to which the Borrower is a party or by which the Borrower or
its property may be bound;
(d) upon its execution, this Amendment No. 8 shall be a
legal, valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms; and
(e) as of the date hereof, Price Parkway has no
indebtedness, obligations or liabilities of any kind whatsoever, whether
or not the same would be required under GAAP to be reflected on its
balance sheet or on any footnotes or schedules thereto.
Section Four. Conditions Precedent. This Amendment No. 8 shall
become effective upon the date that the last of the following events
shall have occurred:
(a) the Agent shall have received a fully executed
counterpart of this Amendment No. 8;
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(b) no Default shall have occurred and be continuing which
constitutes an Event of Default or would constitute an Event of Default
upon the giving of notice or lapse of time or both, and no event or
development which has had or is reasonably likely to have a Material
Adverse Effect shall have occurred, in each case since the date of
delivery to the Agent and the Lenders of the Borrower's most recent
financial statement, and the Agent and the Lenders shall have received a
certificate from the Borrower, executed by its Chief Financial Officer,
as to the truth and accuracy of this paragraph (b); and
(c) the Agent and the Lenders shall have received such
additional documents to further effectuate the purpose of this Amendment
No. 8 as any of them or their respective counsel may reasonably request.
Section Five. General Provisions.
(a) Except as herein expressly amended, the Credit
Agreement and all other agreements, documents, instruments and
certificates executed in connection therewith are ratified and confirmed
in all respects and shall remain in full force and effect in accordance
with their respective terms.
(b) All references to the Credit Agreement shall mean the
Credit Agreement as amended as of the effective date hereof, and as
amended hereby and as hereafter amended, supplemented and modified from
time to time.
(c) This Amendment No. 8 may be executed by the parties
hereto individually or in combination, in one or more counterparts, each
of which shall be an original and all which shall constitute one and the
same agreement.
(d) This Amendment No. 8 shall be governed by, construed
and interpreted in accordance with the internal laws of the State of New
York, without regard to the conflicts of law principles thereof.
IN WITNESS WHEREOF, each of the Borrower, the Lenders, the
Issuing Bank and the Agent has signed below to indicate its agreement
with the foregoing and its intent to be bound thereby.
DI GIORGIO CORPORATION
By: /c/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
BT COMMERCIAL CORPORATION, as
Agent and as a Lender
By: /c/ Xxxxxxxx X. Xxxxxx, Xx.
Name: Xxxxxxxx X. Xxxxxx, Xx.
Title: Vice President
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LASALLE NATIONAL BANK, as a Lender
By: /c/ Xxxxxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Senior Vice President
IBJ XXXXXXXX BANK & TRUST
COMPANY, as a Lender
By: /c/ Wing X. Xxxxx
Name: Wing X. Xxxxx
Title: Vice President
CONGRESS FINANCIAL CORPORATION,
as a Lender
By: /c/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Assistant Vice President
MIDLANTIC NATIONAL BANK, as a
Lender
By: /c/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Assistant Vice President
GIBRALTAR CORPORATION, as a Lender
By: /c/ Xxxxx X. Xxxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
BANKERS TRUST COMPANY, as Issuing
Bank
By: /c/ Xxxxxxxx X. Xxxxxx, Xx.
Name: Xxxxxxxx X. Xxxxxx, Xx.
Title: Vice President
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