exv10w4






Exhibit 10.4




          AMENDMENT NO. 1, dated as of March 18, 2009 (this “Amendment”), to the Credit
Agreement, dated as of April 12, 2006, among DHM HOLDING COMPANY, INC., a Delaware corporation,
DOLE HOLDING COMPANY, LLC, a Delaware limited liability company, DOLE FOOD COMPANY, INC., a
Delaware corporation (the “Borrower”), the Lenders from time to time party thereto,
DEUTSCHE BANK AG NEW YORK BRANCH, as Administrative Agent (in such capacity, the
“Administrative Agent”), and the other parties named therein (as amended from time to time,
the “Credit Agreement”). Capitalized terms used and not otherwise defined herein shall have
the meanings assigned to them in the Credit Agreement.



          WHEREAS, the Credit Parties desire to amend the Credit Agreement and the other Credit
Documents on the terms set forth herein;



          WHEREAS, Section 13.12 of the Credit Agreement provides that the Credit Parties and the
Required Lenders may amend the Credit Agreement and the other Credit Documents;



          NOW, THEREFORE, in consideration of the premises contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound hereby, agree as follows:



          Amendment. The Credit Agreement is hereby amended to delete the stricken text
(indicated textually in the same manner as the following example:) and to add the
double-underlined text (indicated textually in the same manner as the following example:
double–underlined text) as set forth in the pages of the Credit Agreement attached as
Exhibit A hereto.



          Section 1. Representations and Warranties, No Default. The Borrower hereby represents
and warrants that immediately prior to and immediately after giving effect to this Amendment (i) no
Default or Event of Default exists and (ii) all representations and warranties contained in the
Credit Agreement or in any other Credit Document are true and correct in all material respects with
the same effect as though such representations and warranties had been made on the date hereof
(except that any representation or warranty which by its terms is made only as of a specified date
is true and correct in all material respects only as of such specified date).



          Section 2. Effectiveness. This Amendment will become effective upon receipt by the
Administrative Agent of (i) executed signature pages hereto from the Required Lenders and each
Credit Party party to the Credit Agreement and (ii) a fee, for the account of each Lender which has
returned an executed signature page to this Amendment on or prior to 12:00 p.m., New York time, on
February 23, 2009, in an amount equal to to 0.25% of such consenting Lender’s total Revolving Loan
Commitment on such date.



          Section 3. Counterparts. This Amendment may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which when so



 









 






 -2-


executed and delivered shall be deemed to be an original, but all of which when taken together
shall constitute a single instrument. Delivery of an executed counterpart of a signature page
of this Amendment by facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.



          Section 4. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



          Section 5. Headings. The headings of this Amendment are for purposes of reference
only and shall not limit or otherwise affect the meaning hereof.



          Section 6. Effect of Amendment. Except as expressly set forth herein, this Amendment
shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the
rights and remedies of the Lenders or the other Secured Creditors under the Credit Agreement or any
other Credit Document, and shall not alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Credit Agreement or any other
provision of either such agreement or any other Credit Document. Each and every term, condition,
obligation, covenant and agreement contained in the Credit Agreement or any other Credit Document
is hereby ratified and re-affirmed in all respects and shall continue in full force and effect.
Each Credit Party reaffirms its obligations under the Credit Documents to which it is party and the
validity of the Liens granted by it pursuant to the Security Documents. From and after the
effective date of this Amendment, all references to the Credit Agreement in any Credit Document
shall, unless expressly provided otherwise, refer to the Credit Agreement as amended by this
Amendment.



          Section 7. Consent to the Amendment. Each of the Guarantors consents to this
Amendment and agrees that all references to the Credit Agreement in any Credit Document to which it
is party shall refer to the Credit Agreement as amended by this Amendment.



 









 





          IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
respective authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	DHM HOLDING COMPANY, INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DOLE HOLDING COMPANY, LLC

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DOLE FOOD COMPANY, INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	THE GUARANTORS NAMED IN SCHEDULE I 

ATTACHED HERETO

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Amendment No. 1 to ABL Credit Agreement]




 









 








	 	 	 	 	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH,

as Administrative Agent

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Amendment]




 









 








SCHEDULE I

GUARANTORS




	 	 	 
	Calazo Corporation

	 	 
	AG 1970, Inc.
	 	 
	AG 1971, Inc.
	 	 
	AG 1972, Inc.
	 	 
	Alyssum Corporation
	 	 
	Barclay Hollander Corporation
	 	 
	Bud Antle, Inc.
	 	 
	Calicahomes, Inc.
	 	 
	California Polaris, Inc.
	 	 
	CB North, LLC
	 	 
	CB South, LLC
	 	 
	Dole ABPIK, Inc.
	 	 
	Dole Arizona Dried Fruit and Nut Company
	 	 
	Dole Carrot Company
	 	 
	Dole Citrus
	 	 
	Dole DF&N, Inc.
	 	 
	Dole Dried Fruit and Nut Company, a California General Partnership
	 	 
	Dole Farming, Inc.
	 	 
	Dole Fresh Vegetables, Inc.
	 	 
	Dole Orland, Inc.
	 	 
	Dole Packaged Foods, LLC
	 	 
	E. T. Wall Company
	 	 
	Earlibest Orange Association, Inc.
	 	 
	Fallbrook Citrus Company, Inc.
	 	 
	Lindero Headquarters Company, Inc.
	 	 
	Lindero Property, Inc.
	 	 
	Milagro Ranch, LLC
	 	 
	Oceanview Produce Company
	 	 
	Prairie Vista, Inc.
	 	 
	Rancho Manana, LLC
	 	 
	Royal Packing Co.
	 	 
	Veltman Terminal Co.
	 	 
	Bananera Antillana (Colombia), Inc.
	 	 
	Clovis Citrus Association
	 	 
	Delphinium Corporation
	 	 
	Dole Berry Company, LLC
	 	 
	Dole Europe Company
	 	 
	Dole Foods Flight Operations, Inc.
	 	 
	Dole Northwest, Inc.
	 	 
	Dole Sunfresh Express, Inc.
	 	 
	Standard Fruit and Steamship Company
	 	 
	Standard Fruit Company
	 	 
	Sun Country Produce, Inc.
	 	 
	West Foods, Inc.
	 	 
	Cool Advantage, Inc.
	 	 






[Signature Page to Amendment]




 









 








	 	 	 
	Cool Care, Inc.

	 	 
	Saw Grass Transport, Inc.
	 	 
	Blue Anthurium, Inc.
	 	 
	Cerulean, Inc.
	 	 
	Dole Diversified, Inc.
	 	 
	Dole Land Company, Inc.
	 	 
	Dole Packaged Foods Corporation
	 	 
	La Petite d’Agen, Inc.
	 	 
	MK Development, Inc.
	 	 
	Malaga Company, Inc.
	 	 
	Muscat, Inc.
	 	 
	Oahu Transport Company, Limited
	 	 
	Wahiawa Water Company, Inc.
	 	 
	Zante Currant, Inc.
	 	 
	Diversified Imports Co.
	 	 
	Dole Assets, Inc.
	 	 
	Dole Fresh Fruit Company
	 	 
	Dole Holdings, Inc.
	 	 
	Dole Logistics Services, Inc.
	 	 
	Dole Ocean Cargo Express, Inc.
	 	 
	Dole Ocean Liner Express, Inc.
	 	 
	Renaissance Capital Corporation
	 	 
	Sun Giant, Inc.
	 	 
	DNW Services Company
	 	 
	Pacific Coast Truck Company
	 	 
	Pan-Alaska Fisheries, Inc.
	 	 






[Signature Page to Amendment]




 









 








	 	 	 	 	 
	 	 	 
	 	 
	, 
	 	as a Lender 	 
	 	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Amendment]





 











 




EXHIBIT A TO AMENDMENT NO. 1





 





CREDIT AGREEMENT




among




DHM HOLDING COMPANY, INC.,

DOLE HOLDING COMPANY, LLC,

DOLE FOOD COMPANY, INC.

as BORROWER,




VARIOUS LENDERS,




and




DEUTSCHE BANK AG NEW YORK BRANCH,

as ADMINISTRATIVE AGENT




 






Dated as of April 12, 2006




 






BANC OF AMERICA SECURITIES LLC,

as SYNDICATION AGENT,




DEUTSCHE BANK SECURITIES INC.,

as LEAD ARRANGER,




HARRIS N.A., THE BANK OF NOVA SCOTIA

and WELLS FARGO FOOTHILL, LLC,

as CO-DOCUMENTATION AGENTS




and




DEUTSCHE BANK SECURITIES INC.




and




BANC OF AMERICA SECURITIES LLC,

as JOINT BOOK RUNNING MANAGERS




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	SECTION 1. DEFINITIONS AND ACCOUNTING TERMS
	 	 	 	 
	 
	 	 	 	 
	1.01. Defined Terms
	 	 	1	 
	 
	 	 	 	 
	SECTION 2. AMOUNT AND TERMS OF CREDIT
	 	 	 	 
	 
	 	 	 	 
	2.01. The Commitments
	 	 	58	 
	2.02. Minimum Amount of Each Borrowing
	 	 	61	 
	2.03. Notice of Borrowing
	 	 	61	 
	2.04. Disbursement of Funds
	 	 	62	 
	2.05. Notes
	 	 	64	 
	2.06. Conversions
	 	 	65	 
	2.07. Pro Rata Borrowings
	 	 	66	 
	2.08. Interest
	 	 	66	 
	2.09. Interest Periods
	 	 	67	 
	2.10. Increased Costs, Illegality, etc.
	 	 	68	 
	2.11. Compensation
	 	 	71	 
	2.12. Change of Lending Office
	 	 	72	 
	2.13. Replacement of Lenders
	 	 	72	 
	2.14. Incremental Commitments
	 	 	73	 
	 
	 	 	 	 
	SECTION 3. LETTERS OF CREDIT
	 	 	 	 
	 
	 	 	 	 
	3.01. Letters of Credit
	 	 	75	 
	3.02. Maximum Letter of Credit Outstandings; Final Maturities
	 	 	76	 
	3.03. Letter of Credit Requests; Minimum Stated Amount
	 	 	76	 
	3.04. Letter of Credit Participations
	 	 	77	 
	3.05. Agreement to Repay Letter of Credit Drawings
	 	 	79	 
	3.06. Increased Costs
	 	 	80	 
	 
	 	 	 	 
	SECTION 4. COMMITMENT COMMISSION; FEES; REDUCTIONS OF COMMITMENT
	 	 	 	 
	 
	 	 	 	 
	4.01. Fees
	 	 	81	 
	4.02. Voluntary Termination of Unutilized Revolving Loan Commitments
	 	 	82	 
	4.03. Mandatory Reduction of Commitments
	 	 	83	 
	 
	 	 	 	 
	SECTION 5. PREPAYMENTS; PAYMENTS; TAXES
	 	 	 	 
	 
	 	 	 	 
	5.01. Voluntary Prepayments
	 	 	83	 
	5.02. Mandatory Repayments and Commitment Reductions
	 	 	84	 
	5.03. Method and Place of Payment; Payments and Computations;
Maintenance of Accounts; Statement of Accounts
	 	 	88	 
	5.04. Net Payments
	 	 	90	 






 









 







Table of Contents

(continued)




	 	 	 	 	 
	 	 	Page	 
	 
	SECTION 6. CONDITIONS PRECEDENT TO CREDIT EVENTS ON THE INITIAL BORROWING DATE
	 	 	 	 
	 
	 	 	 	 
	6.01. Effective Date; Notes
	 	 	92	 
	6.02. Officer’s Certificate
	 	 	92	 
	6.03. Opinions of Counsel
	 	 	92	 
	6.04. Company Documents; Proceedings; etc.
	 	 	93	 
	6.05. Shareholders’ Agreements; Management Agreements; Existing
Indebtedness Agreements; and Tax Allocation Agreements
	 	 	93	 
	6.06. Outstanding Indebtedness and Preferred Equity
	 	 	94	 
	6.07. Refinancing; Original Credit Agreement; etc.
	 	 	95	 
	6.08. Adverse Change, Approvals
	 	 	96	 
	6.09. Litigation
	 	 	96	 
	6.10. Subsidiaries Guaranty; Intercompany Subordination Agreement
	 	 	96	 
	6.11. Pledge Agreement
	 	 	97	 
	6.12. Security Agreement
	 	 	97	 
	6.13. Mortgage; Title Insurance; Landlord Waivers; etc.
	 	 	98	 
	6.14. [Intentionally omitted.]
	 	 	99	 
	6.15. Financial Statements; Pro Forma Balance Sheet; Projections
	 	 	99	 
	6.16. Solvency Certificate; Insurance Certificates, etc.
	 	 	99	 
	6.17. Fees, etc.
	 	 	100	 
	6.18. Appraisal and Collateral Examination
	 	 	100	 
	6.19. Borrowing Base Certificate; Liquidity
	 	 	100	 
	 
	 	 	 	 
	SECTION 7. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS
	 	 	 	 
	 
	 	 	 	 
	7.01. Limitation on Cash on Hand
	 	 	101	 
	7.02. No Default; Representations and Warranties
	 	 	101	 
	7.03. Notice of Borrowing; Letter of Credit Request
	 	 	101	 
	 
	 	 	 	 
	SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS
	 	 	 	 
	 
	 	 	 	 
	8.01. Company Status
	 	 	102	 
	8.02. Company Power and Authority
	 	 	102	 
	8.03. No Violation
	 	 	102	 
	8.04. Litigation
	 	 	103	 
	8.05. Use of Proceeds; Margin Regulations
	 	 	104	 
	8.06. Governmental Approvals
	 	 	104	 
	8.07. Investment Company Act
	 	 	104	 
	8.08. True and Complete Disclosure
	 	 	104	 
	8.09. Financial Condition; Financial Statements
	 	 	105	 
	8.10. Security Interests
	 	 	106	 
	8.11. Compliance with ERISA
	 	 	106	 
	8.12. Capitalization
	 	 	108	 
	8.13. Subsidiaries
	 	 	108	 






-ii-









 






Table of Contents

(continued)




	 	 	 	 	 
	 	 	Page	 
	 
	8.14. Intellectual Property, etc.
	 	 	109	 
	8.15. Compliance with Statutes; Agreements, etc.
	 	 	109	 
	8.16. Environmental Matters
	 	 	109	 
	8.17. Properties
	 	 	110	 
	8.18. Labor Relations
	 	 	110	 
	8.19. Tax Returns and Payments
	 	 	111	 
	8.20. Scheduled Existing Indebtedness
	 	 	111	 
	8.21. Insurance
	 	 	112	 
	8.22. Transaction
	 	 	112	 
	8.23. Special Purpose Corporations
	 	 	112	 
	8.24. Subordination
	 	 	113	 
	8.25. Aggregate Borrowing Base Calculation
	 	 	113	 
	 
	 	 	 	 
	SECTION 9. AFFIRMATIVE COVENANTS
	 	 	 	 
	 
	 	 	 	 
	9.01. Information Covenants
	 	 	113	 
	9.02. Books, Records and Inspections
	 	 	119	 
	9.03. Insurance
	 	 	120	 
	9.04. Payment of Taxes
	 	 	121	 
	9.05. Existence; Franchises
	 	 	121	 
	9.06. Compliance with Statutes; etc.
	 	 	121	 
	9.07. Compliance with Environmental Laws
	 	 	121	 
	9.08. ERISA
	 	 	122	 
	9.09. Good Repair
	 	 	124	 
	9.10. End of Fiscal Years; Fiscal Quarters
	 	 	124	 
	9.11. Additional Security; Additional Guaranties; Actions with Respect
to Non-Guarantor Subsidiaries; Further Assurances
	 	 	124	 
	9.12. Use of Proceeds
	 	 	127	 
	9.13. Ownership of Subsidiaries
	 	 	128	 
	9.14. Permitted Acquisitions
	 	 	128	 
	9.15. Maintenance of Company Separateness
	 	 	130	 
	9.16. Performance of Obligations
	 	 	130	 
	9.17. Conduct of Business
	 	 	130	 
	9.18. Margin Stock
	 	 	131	 
	9.19. Landlords’ Agreements, Mortgagee Agreements, Bailee Letters and
Real Estate Purchases
	 	 	131	 
	9.20. Post-Closing Refinancing
	 	 	132	 
	9.21. Mortgage Amendments
	 	 	132	 
	9.22. . No later than 45 days after the effective date of
Amendment 1 (or such later date as the Administrative Agent shall agree in
its sole discretion), the applicable Credit Parties shall cause to be
executed and/or delivered, as applicable, to the Administrative Agent:
	 	 	132	 






-iii-









 






Table of Contents

(continued)




	 	 	 	 	 
	 	 	Page	 
	 
	SECTION 10. NEGATIVE COVENANTS
	 	 	 	 
	 
	 	 	 	 
	10.01. Changes in Business; etc.
	 	 	133	 
	10.02. Consolidation; Merger; Sale or Purchase of Assets; etc.
	 	 	137	 
	10.03. Liens
	 	 	141	 
	10.04. Indebtedness
	 	 	145	 
	10.05. Advances; Investments; Loans
	 	 	150	 
	10.06. Restricted Payments; etc.
	 	 	155	 
	10.07. Transactions with Affiliates
	 	 	159	 
	10.08. Fixed Charge Coverage Ratio
	 	 	160	 
	10.09. Limitation on Voluntary Payments and Modifications of Indebtedness;
Modifications of Certificate of Incorporation, By-Laws and Certain Other
Agreements; Issuances of Capital Stock; etc.
	 	 	160	 
	10.10. Limitation on Issuance of Equity Interests
	 	 	162	 
	10.11. Limitation on Certain Restrictions on Subsidiaries
	 	 	162	 
	10.12. Limitation on the Creation of Subsidiaries and Joint Ventures
	 	 	163	 
	10.13. Special Restrictions Relating to Principal Property
	 	 	164	 
	10.14. No Additional Deposit Accounts; etc.
	 	 	164	 
	 
	 	 		 
	SECTION 11. EVENTS OF DEFAULT
	 	 	 	 
	 
	 	 	 	 
	11.01. Payments
	 	 	165	 
	11.02. Representations, etc.
	 	 	165	 
	11.03. Covenants
	 	 	165	 
	11.04. Default Under Other Agreements
	 	 	165	 
	11.05. Bankruptcy, etc.
	 	 	166	 
	11.06. ERISA
	 	 	166	 
	11.07. Security Documents
	 	 	167	 
	11.08. Guaranties
	 	 	167	 
	11.09. Judgments
	 	 	167	 
	11.10. Ownership
	 	 	168	 
	11.11. Denial of Liability
	 	 	168	 
	 
	 	 		 
	SECTION 12. THE ADMINISTRATIVE AGENT
	 	 	 	 
	 
	 	 	 	 
	12.01. Appointment
	 	 	168	 
	12.02. Nature of Duties
	 	 	169	 
	12.03. Lack of Reliance on the Administrative Agent
	 	 	169	 
	12.04. Certain Rights of the Administrative Agent
	 	 	170	 
	12.05. Reliance
	 	 	170	 
	12.06. Indemnification
	 	 	170	 
	12.07. The Administrative Agent in its Individual Capacity
	 	 	170	 
	12.08. Holders
	 	 	171	 
	12.09. Resignation by the Administrative Agent
	 	 	171	 
	12.10. Collateral Matters
	 	 	172	 
	12.11. Delivery of Information
	 	 	172	 






-iv-









 






Table of Contents

(continued)




	 	 	 	 	 
	 	 	Page	 
	 
	SECTION 13. MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	13.01. Payment of Expenses, etc.
	 	 	173	 
	13.02. Right of Setoff
	 	 	174	 
	13.03. Notices
	 	 	175	 
	13.04. Benefit of Agreement; Assignments; Participations
	 	 	176	 
	13.05. No Waiver; Remedies Cumulative
	 	 	178	 
	13.06. Payments Pro Rata
	 	 	178	 
	13.07. Calculations; Computations
	 	 	179	 
	13.08. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL

	 	 	180	 
	13.09. Counterparts
	 	 	181	 
	13.10. Effectiveness
	 	 	181	 
	13.11. Headings Descriptive
	 	 	181	 
	13.12. Amendment or Waiver; etc.
	 	 	181	 
	13.13. Survival
	 	 	183	 
	13.14. Domicile of Loans
	 	 	183	 
	13.15. Register
	 	 	183	 
	13.16. Confidentiality
	 	 	183	 
	13.17. Special Provisions Regarding Pledges of Equity Interests in, and
Promissory Notes Owed by, Persons Not Organized in the United States
	 	 	184	 
	13.18. Patriot Act
	 	 	185	 
	13.19. Post-Closing Actions
	 	 	185	 
	 
	 	 	 	 
	SECTION 14. CREDIT AGREEMENT PARTY GUARANTY
	 	 	 	 
	 
	 	 	 	 
	14.01. The Guaranty
	 	 	186	 
	14.02. Bankruptcy
	 	 	187	 
	14.03. Nature of Liability
	 	 	187	 
	14.04. Independent Obligation
	 	 	188	 
	14.05. Authorization
	 	 	188	 
	14.06. Reliance
	 	 	189	 
	14.07. Subordination
	 	 	189	 
	14.08. Waiver
	 	 	189	 
	14.09. Payments
	 	 	191	 






-v-









 






Table of Contents

(continued)




	 	 	 
	SCHEDULE
	 	 
	 
	 	 
	SCHEDULE I

	 	Commitments
	SCHEDULE II

	 	Lender Addresses
	SCHEDULE III

	 	Accounts
	SCHEDULE IV

	 	Existing Indebtedness
	SCHEDULE V

	 	Real Property
	SCHEDULE VI

	 	Plans
	SCHEDULE VII

	 	Capitalization
	SCHEDULE VIII

	 	Subsidiaries
	SCHEDULE IX

	 	Existing Investments
	SCHEDULE X

	 	Tax Matters
	SCHEDULE XI

	 	Insurance
	SCHEDULE XII

	 	Post-Closing Matters
	SCHEDULE XIII

	 	Non-Guarantor Subsidiaries, Excluded Foreign Subsidiaries
	SCHEDULE XIV

	 	Non-Wholly-Owned Subsidiaries
	SCHEDULE XV

	 	Qualified Jurisdictions
	SCHEDULE XVI

	 	Transactions with Affiliates
	SCHEDULE XVII

	 	Principal Properties
	SCHEDULE XVIII

	 	Existing Liens
	SCHEDULE XIX

	 	Existing Letters of Credit
	 
	 	 
	EXHIBIT
	 	 
	 
	 	 
	EXHIBIT A-1

	 	Form of Notice of Borrowing
	EXHIBIT A-2

	 	Form of Notice of Conversion/Continuation
	EXHIBIT B-1

	 	Form of Revolving Note
	EXHIBIT B-2

	 	Form of Swingline Note
	EXHIBIT C

	 	Form of Letter of Credit Request
	EXHIBIT D

	 	Form of Section 5.04(b)(ii) Certificate
	EXHIBIT E

	 	Form of Opinion of Paul, Hastings, Janofsky & Walker LLP, special counsel to the Credit Parties
	EXHIBIT F

	 	Form of Officers’ Certificate
	EXHIBIT G

	 	Form of Subsidiaries Guaranty
	EXHIBIT H

	 	Form of Intercompany Subordination Agreement
	EXHIBIT I

	 	Form of Pledge Agreement
	EXHIBIT J

	 	Form of Security Agreement
	EXHIBIT K

	 	Form of Intercreditor Agreement
	EXHIBIT L

	 	Form of Solvency Certificate
	EXHIBIT M

	 	Form of Borrowing Base Certificate
	EXHIBIT N

	 	Form of Intercompany Note
	EXHIBIT O

	 	Form of Shareholder Subordinated Note
	EXHIBIT P

	 	Form of Compliance Certificate
	EXHIBIT Q

	 	Form of Assignment and Assumption Agreement
	EXHIBIT R

	 	Form of Incremental Commitment Agreement
	EXHIBIT S

	 	Form of Landlord Personal Property Collateral Access Agreements







-vi-











 





          CREDIT AGREEMENT, dated as of April 12, 2006, among DHM HOLDING COMPANY, INC., a Delaware
corporation (“Holdings”), DOLE HOLDING COMPANY, LLC, a Delaware limited liability company
(“Intermediate Holdco”), DOLE FOOD COMPANY, INC., a Delaware corporation (the
“Borrower”), the Lenders party hereto from time to time, DEUTSCHE BANK AG New York Branch
(“DBNY”), as Administrative Agent, BANC OF AMERICA SECURITIES LLC, as Syndication Agent,
HARRIS N.A., THE BANK OF NOVA SCOTIA and WELLS FARGO FOOTHILL, LLC, as Co-Documentation Agents,
DEUTSCHE BANK SECURITIES LLC and BANC OF AMERICA SECURITIES LLC, as Joint Book Running Managers and
DEUTSCHE BANK SECURITIES INC., as Lead Arranger. All capitalized terms used herein and defined in
Section 1.01 are used herein as therein defined.




W I T N E S S E T H:




          WHEREAS, subject to and upon the terms and conditions set forth herein, the Lenders are
willing to make available to the Borrower the respective credit facilities provided for herein;




          NOW, THEREFORE, IT IS AGREED:




          SECTION 1. Definitions and Accounting Terms.




          1.01. Defined Terms. As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular and plural forms of
the terms defined):




          “ABL Obligations” shall have the meaning provided in the Intercreditor Agreement.




          “ABL Priority Collateral” shall have the meaning provided in the Intercreditor
Agreement.




          “ABL Secured Parties” shall have the meaning provided in the Intercreditor Agreement.




          “Account” shall mean an “account” (as such term is defined in Article 9 of the UCC),
and any and all supporting obligations in respect thereof.




          “Account Debtor” shall mean each Person who is obligated on an Account, chattel paper,
or a General Intangible.




          “Acquired Entity or Business” shall mean either (x) the assets constituting a
business, division or product line of any Person not already a Subsidiary of Holdings or (y) 100%
of the Equity Interests of any such Person, which Person shall, as a result of the acquisition of
such Equity Interests, become a Wholly-Owned Domestic Subsidiary of Holdings
(or shall be merged with and into the Borrower or another Wholly-Owned Domestic Subsidiary of
the Borrower that is a Subsidiary Guarantor, with the Borrower or such Subsidiary Guarantor being
the surviving or continuing Person).




 









 








          “Act” shall have the meaning provided in Section 13.18.




          “Additional Collateral” shall mean all property (whether real or personal) in which
security interests are granted (or have been purported to be granted) (and continue to be in effect
at the time of determination) pursuant to Sections 9.11 and/or 10.12.




          “Additional Mortgage” shall have the meaning provided in Section 9.11(a).




          “Additional Mortgaged Property” shall have the meaning provided in Section 9.11(a).




          “Additional Security Documents” shall mean all mortgages, pledge agreements, security
agreements and other security documents entered into from time to time pursuant to Sections 9.11
and/or 10.12, as each such document may be modified, supplemented or amended from time to time in
accordance with the terms hereof and thereof.




          “Adjusted Consolidated Net Income” shall mean, for any period, Consolidated Net Income
for such period plus, without duplication, the sum of the amount of all net non-cash
charges (including, without limitation, depreciation, amortization, deferred tax expense and
non-cash interest expense) and net non-cash losses which were included in arriving at Consolidated
Net Income for such period, less the amount of all net non-cash gains which were included
in arriving at Consolidated Net Income for such period.




          “Adjusted Consolidated Working Capital” shall mean, at any time, Consolidated Current
Assets at such time (but excluding therefrom all cash and Cash Equivalents) less
Consolidated Current Liabilities at such time.




          “Adjusted Excess Cash Flow” shall mean, for any period, the remainder of (i) Excess
Cash Flow for such period minus (ii) the aggregate amount of principal repayments of Term
Loans to the extent (and only to the extent) that such repayments were made as a voluntary
prepayment pursuant to the Term Credit Agreement.




          “Adjustment Date” shall mean the first day of each Fiscal Quarter of the Borrower.




          “Administrative Agent” shall mean Deutsche Bank AG New York Branch, in its capacity as
Administrative Agent for the Lenders hereunder and under the other Credit Documents, and shall
include any successor to the Administrative Agent appointed pursuant to Section 12.09.




          “Affiliate” shall mean, with respect to any Person, any other Person directly or
indirectly controlling (including but not limited to all directors and officers of such Person),
controlled by, or under direct or indirect common control with such Person. A Person shall be
deemed to control another Person if such Person possesses, directly or indirectly, the power (i) to
vote 10% or more of the securities having ordinary voting power for the election of directors
(or equivalent governing body) of such Person or (ii) to direct or cause the direction of the
management and policies of such other Person, whether through the ownership of voting




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securities,
by contract or otherwise; provided, however, that neither any Agent nor any Lender
(nor any Affiliate thereof) shall be considered an Affiliate of Holdings or any Subsidiary thereof.




          “Affiliated Group” shall have the meaning provided in Section 10.06(v).




          “Agent” shall mean the Administrative Agent, the Syndication Agent and each
Co-Documentation Agent and shall include any successor to any such Person appointed pursuant to
Section 12.09.




          “Agent Advance” shall have the meaning provided in Section 2.01(f).




          “Agent Advance Period” shall have the meaning provided in Section 2.01(f).




          “Aggregate Exposure” at any time shall mean the sum of (i) the aggregate principal
amount of all Revolving Loans then outstanding (for this purpose, using the Dollar Equivalent of
each Euro Denominated Loan and each Sterling Denominated Loan then outstanding), (ii) the aggregate
amount of all Letter of Credit Outstandings (for this purpose, using the Dollar Equivalent of all
amounts expressed in Euros or Sterling) at such time and (iii) the aggregate principal amount of
all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of Revolving Loans).




          “Agreement” shall mean this Credit Agreement, as modified, supplemented, amended,
restated (including any amendment and restatement hereof), extended, renewed refinanced and/or
replaced from time to time.




          “Amendment 1” shall mean Amendment 1 to this Agreement, dated as of March 18, 2009.




          “Applicable Commitment Commission Percentage” shall mean (i) for each day on which the
Aggregate Exposure is less than or equal to 50% of the Total Commitment, 0.375% and (ii) for each
day on which the Aggregate Exposure exceeds 50% of the Total Commitment, 0.250%.




          “Applicable Margin” shall mean, in the case of Loans maintained as (A) Base Rate Loans
2.00% and (B) Euro Rate Loans, 3.00%; provided that the Applicable Margin shall be adjusted
quarterly on a prospective basis on each Adjustment Date (commencing with the first Adjustment Date
to occur during the second Fiscal Quarter to commence after the Initial Borrowing Date) in
accordance with the table below based on the Average Historical Borrowing Availability for such
Adjustment Date:




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	 	 	 	 	 	 	Base Rate Revolving
	 	 	Euro Rate Revolving	 	Loan and
	 	 	Loan and Euro	 	Swingline Loan Base
	Average Historical Borrowing Availability	 	Rate Margin	 	Rate Margin
	Less than 33% of the Total Commitment
	 	 	3.50	%	 	 	2.50	%
	Greater than or equal to 33% of the
Total Commitment but less than 66% of
the Total Commitment
	 	 	3.25	%	 	 	2.25	%
	Greater than or equal to 66% of the
Total Commitment
	 	 	3.00	%	 	 	2.00	%






          The Applicable Margins as so determined shall apply, except as set forth in the succeeding
sentence, from the relevant Adjustment Date to the next Adjustment Date. Notwithstanding anything
to the contrary contained above in this definition, the Applicable Margins shall be (x) the highest
set forth in the table above at all times during which there shall exist any Specified Default or
any Event of Default and (y) for any period prior to the effective date of Amendment 1, as set
forth in this Agreement prior to giving effect to Amendment 1.




          “Applicable Prepayment Percentage” shall mean, at any time, for purposes of Section
5.02(e) and the definitions of “Retained Excess Cash Flow Amount”, 50%; provided that, so
long as no Default or Event of Default is then in existence, (i) if at any time the Total Leverage
Ratio is less than 3.50:1.00 as at the last day of the most recently ended Fiscal Year of the
Borrower (as provided in an officer’s certificate setting forth (in reasonable detail) the
calculation of the Total Leverage Ratio, which certificate shall be delivered by the Borrower
contemporaneously with the financial statements delivered under Section 9.01(c) for such Fiscal
Year of the Borrower then last ended), the Applicable Prepayment Percentage shall instead be 0%.




          “Asset Sale” shall mean any sale, transfer or other disposition by Holdings or any of
its Subsidiaries to any Person other than the Borrower or any Wholly-Owned Subsidiary of the
Borrower of any asset or Property (including, without limitation, any capital stock or other
securities of, or other Equity Interests in, another Person, but excluding the sale by Holdings of
its own capital stock) of Holdings or such Subsidiary other than (i) sales, transfers or other
dispositions of inventory made in the ordinary course of business, (ii) other sales and
dispositions that generate Net Sale Proceeds of less than $15,000,000 in the aggregate in
any Fiscal Year of Holdings or (iii) sales or liquidations of Cash Equivalents, it being understood
and agreed that the grant of a Lien by Holdings or any of its Subsidiaries in favor of another
Person shall not in and of itself constitute an “Asset Sale” for purposes of this
definition.




          “Assignment and Assumption Agreement” shall mean an Assignment and Assumption
Agreement substantially in the form of Exhibit Q (appropriately completed).




          “Authorized Officer” shall mean, with respect to (i) delivering Notices of Borrowing,
Notices of Conversion/Continuation and similar notices, any person or persons that




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has or have been
authorized by the board of directors of Holdings or the Borrower to deliver
such notices pursuant to this Agreement and that has or have appropriate signature cards on
file with the Administrative Agent, the Swingline Lender or the respective Issuing Lender, (ii)
delivering financial information and officer’s certificates pursuant to this Agreement, the chief
financial officer, the treasurer or any financial officer of Holdings or the Borrower, and (iii)
any other matter in connection with this Agreement or any other Credit Document, any officer (or a
person or persons so designated by any two officers) of Holdings or the Borrower.




          “Available Currency” shall mean Dollars, Euros and Sterling.




          “Average Historical Borrowing Availability” shall mean, at any Adjustment Date, the
average daily Borrowing Availability for the three-month period immediately preceding such
Adjustment Date (with the Borrowing Base for any such day used to determine “Borrowing
Availability” calculated by reference to the most recent Borrowing Base Certificate delivered to
the Administrative Agent on or prior to such day pursuant to Section 9.01(o)).




          “Bankruptcy Code” shall have the meaning provided in Section 11.05.




          “Base Rate” shall mean, at any time, the higher of (i) the Prime Lending Rate at such
time and (ii) 1/2 of 1% in excess of the overnight Federal Funds Rate at such time.




          “Base Rate Loan” shall mean (i) each Swingline Loan and (ii) each other Loan
designated or deemed designated as such by the Borrower at the time of the incurrence thereof or
conversion thereto.




          “Bermuda Company” shall mean Solvest, Ltd., a company organized under the laws of
Bermuda.




          “Bermuda Partnership” shall mean Dole Foreign Holdings, Ltd., a limited liability
company organized under the laws of Bermuda.




          “Bermuda Partnership Partner #1” shall mean Dole Fresh Fruit Company, Inc., a
corporation organized under the laws of Nevada and a Wholly-Owned Subsidiary of the Borrower, and
any successor thereto by way of a merger or consolidation permitted by Section 10.01(d).




          “Bermuda Partnership Partner #2” shall mean Dole Ocean Cargo Express, Inc., a
corporation organized under the laws of Nevada and a Wholly-Owned Subsidiary of the Borrower, and
any successor thereto by way of a merger or consolidation permitted by Section 10.01(d).




          “Bermuda Partnership Partners” shall mean and include Bermuda Partnership Partner #1
and Bermuda Partnership Partner #2.




          “Borrower” shall have the meaning provided in the first paragraph of this Agreement.




-5-









 










          “Borrowing” shall mean the borrowing of one Type of Loan of a single Tranche from all
the Lenders having Revolving Loan Commitments of the respective Tranche (or from
the Swingline Lender in the case of Swingline Loans) on a given date (or resulting from a
conversion or conversions on such date) having in the case of Euro Rate Loans the same Interest
Period, provided that Base Rate Loans incurred pursuant to Section 2.10(b) shall be
considered part of the related Borrowing of Euro Rate Loans.




          “Borrowing Availability” shall mean, as of any date of determination, (i) the lesser
of (x) the Total Commitment and (y) the Borrowing Base minus (ii) the Aggregate Exposure.




          “Borrowing Availability Limitation” shall mean at any time that the Borrowing
Availability at such time is less than (x) in all cases other than as provided in clause (y), the
greater of (a) $70,000,000 and (b) 20% of the Total Commitment at such time and (y) in the case of
Section 9.01(o), $50,000,000.




          “Borrowing Base” shall mean, as of any date of determination, the result of:





     (a) 85% of the amount of Eligible Accounts (determined in the case of Eligible Accounts
denominated in Canadian Dollars by using the Dollar Equivalent thereof), plus




     (b) the lowest of




     (i) the sum total of the following:




	 	(A)	 	72% of the lower of (x) cost (determined on a
first in first out basis) in accordance with GAAP and (y) fair market
value of Eligible Inventory consisting of the type produced, marketed
and/or distributed by Dole Packaged Foods, LLC on the Effective Date,
	 
	 	(B)	 	57% of the lower of (x) cost (determined on a
first in first out basis) in accordance with GAAP and (y) fair market
value of Eligible Inventory consisting of the type produced, marketed
and/or distributed by Dole Fresh Vegetables, Inc. on the Effective
Date,
	 
	 	(C)	 	70% of the lower of (x) cost (determined on a
first in first out basis) in accordance with GAAP and (y) fair market
value of Eligible Inventory consisting of the type produced, marketed
and/or distributed by Dole Fresh Fruit Company on the Effective Date,
and
	 
	 	(D)	 	70% of the lower of (x) cost (determined on a
first in first out basis) in accordance with GAAP and (y) fair market
value of Eligible Inventory consisting of the type produced, marketed




-6-









 





	 	 	 	and/or distributed by Dole Fresh Flowers, Inc. on the Effective Date,






     (ii) the sum of 85% of the Net Orderly Liquidation Value of Eligible Inventory included
in each of the Borrower’s Business Segments (e.g., on the effective date of Amendment 1,
calculated as the sum of (x) 85% of the Net Orderly Liquidation Value of Eligible Inventory
of Dole Packaged Foods, LLC plus (y) 85% of the Net Orderly Liquidation Value of Eligible
Inventory of Dole Fresh Vegetables, Inc. plus (z) 85% of the Net Orderly Liquidation Value
of Eligible Inventory of Dole Fresh Fruit Company), minus




     (c) the sum of (i) the PACA Reserve, (ii) Dilution Reserve, (iii) Rent Reserve, (iv)
the Inbound Freight Reserve and (v) the aggregate amount of reserves, if any, established by
the Administrative Agent under Section 2.01(d) with respect to the Borrowing Base.



          “Borrowing Base Certificate” shall have the meaning provided in Section 9.01(o).




          “Business Day” shall mean (i) for all purposes other than as covered by clauses (ii)
and (iii) below, any day excluding Saturday, Sunday and any day which shall be in the City of New
York (or, with respect to an Issuing Lender not located in the City of New York, the location of
such Issuing Lender) a legal holiday or a day on which banking institutions are authorized by law
or other governmental actions to close, (ii) with respect to all notices and determinations in
connection with, and payments of principal, Unpaid Drawings and interest on or with respect to,
Euro Denominated Loans or any Euro Denominated Letters of Credit, any day which is a Business Day
described in clause (i) and which is also (A) a day for trading by and between banks in the London
interbank market and which shall not be a legal holiday or a day on which banking institutions are
authorized or required by law or other government action to close in London or New York City and
(B) in relation to any payment in Euros, a day on which the Trans-European Automated Real-Time
Gross Settlement Express Transfer (TARGET) System is open and (iii) with respect to all notices and
determinations in connection with, and payments of principal, Eurodollar Loans and Unpaid Drawings
and interest on or with respect to, Eurodollar Loans and Sterling Denominated Loans or any Sterling
Denominated Letters of Credit, any day which is a Business Day described in clause (i) and which is
also a day for trading by and between banks in the London interbank market and which shall not be a
legal holiday or a day on which banking institutions are authorized or required by law or other
government action to close in London.




          “Business Segment” shall mean a reportable segment as discussed in Statement of
Financial Accounting Standards No. 131 “Disclosure about Segments of an Enterprise and Related
Information.”




          “Calculation Period” shall mean, with respect to any Permitted Acquisition, any
Significant Asset Sale or any other event expressly required to be calculated on a Pro
Forma Basis pursuant to the terms of this Agreement, the Test Period most recently ended
prior to the




-7-









 







date of such Permitted Acquisition, Significant Asset Sale or other event for which
financial statements pursuant to Sections 9.01(b) and (c) are then available.




          “California Disposition” shall have the meaning provided in Section 10.02(xx).




          “Canadian Dollars” shall mean the freely transferable lawful currency of Canada.




          “Capital Expenditures” shall mean, with respect to any Person, for any period, all
expenditures by such Person which should be capitalized in accordance with U.S. GAAP during such
period, including, without duplication, all such expenditures with respect to fixed or capital
assets (including, without limitation, expenditures for maintenance and repairs which should be
capitalized in accordance with U.S. GAAP) and the amount of all Capitalized Lease Obligations
incurred by such Person during such period.




          “Capital Lease,” as applied to any Person, shall mean any lease of any Property by
that Person as lessee which, in conformity with U.S. GAAP, is accounted for as a capital lease on
the balance sheet of that Person.




          “Capitalized Lease Obligations” of any Person shall mean all obligations under such
Person, in each case taken at the amount thereof accounted for as indebtedness in accordance with
U.S. GAAP.




          “Cash” shall mean money, currency or a credit balance in any demand or Deposit
Account.




          “Cash Equivalents” shall mean (i) Dollars, Euros, Sterling and, in the case of any of
Foreign Subsidiaries of the Borrower, such local currencies held by them from time to time in the
ordinary course of their businesses, (ii) securities issued or directly fully guaranteed or insured
by the governments of the United States, the United Kingdom, Sweden, Switzerland, Japan, Canada and
members of the European Union or any agency or instrumentality thereof (provided that the
full faith and credit of the respective such government is pledged in support thereof) having
maturities of not more than six months from the date of acquisition, (iii) securities issued by any
state of the United States or any political subdivision of any such state or any public
instrumentality thereof maturing within six months from the date of acquisition thereof and, at the
time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s,
(iv) certificates of deposit and eurodollar time deposits with maturities of six months or less
from the date of acquisition, bankers’ acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any domestic commercial bank or commercial bank of a
foreign country recognized by the United States, (x) in the case of a domestic commercial bank,
having capital and surplus in excess of $500,000,000 and outstanding debt which is rated “A” (or
similar equivalent thereof) or higher by at least one nationally recognized statistical rating
organization (as defined under Rule 436 under the Securities Act) and (y) in the case of a foreign
commercial bank, having capital and surplus in excess of $250,000,000 (or the foreign currency
equivalent thereof), (v) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (ii) and (iv) above entered into with any
financial institution meeting the qualifications specified in clause (iv) above, (vi) commercial
paper having a rating of at least A-1 from S&P or





-8-












 




at least P-1 from Moody’s and in each case maturing within six months after the date of acquisition
and (vii) investments in money market funds which invest substantially all their assets in
securities of the types described in clauses (i) through (vi) above. Furthermore, with respect to
Foreign Subsidiaries of the Borrower that are not organized in one or more Qualified Jurisdictions,
Cash Equivalents shall include bank deposits (and investments pursuant to operating account
agreements) maintained with various local banks in the ordinary course of business consistent with
past practice of the Borrower’s Foreign Subsidiaries.




          “Cash Management Control Agreement” shall mean a “control agreement” in form and
substance acceptable to the Administrative Agent and containing terms regarding the treatment of
all cash and other amounts on deposit in the Collection Account governed by such Cash Management
Control Agreement consistent with the requirements of Section 5.03.




          “Change of Control” shall mean (i) Holdings shall at any time cease to own directly
100% of the Equity Interests of Intermediate Holdco (except as a result of a merger or liquidation
of Intermediate Holdco permitted by Section 9.13), (ii) Intermediate Holdco or, following any
merger or liquidation of Intermediate Holdco permitted by Section 9.13, Holdings shall at any time
cease to own directly 100% of the Equity Interests of (x) the Borrower and (y) except as permitted
by Section 9.13, Corporate Holdco, (iii) the Borrower shall at any time cease to own directly or
indirectly 100% of the Equity Interests of the Bermuda Company, (iv) the Permitted Holders shall at
any time and for any reason fail to own at least 75% of both the economic and voting interest in
Holdings’ capital stock, (v) the Board of Directors of Holdings shall cease to consist of a
majority of Continuing Directors, or (vi) a “change of control” or similar event shall occur as
provided in any Existing Senior Notes Document, any Qualified Preferred Stock (or certificate of
designation governing the same), any Wellbeing Project Financing Document, any Permitted Senior
Notes Documents and any Permitted Refinancing Senior Notes Document.




          “Chief Executive Office” shall mean, with respect to any Person, the location from
which such Person manages the main part of its business operations or other affairs.




          “Claims” shall have the meaning provided in the definition of “Environmental Claims”.




          “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and
the regulations promulgated and rulings issued thereunder. Section references to the Code are to
the Code, as in effect at the date of this Agreement and any subsequent provisions of the Code,
amendatory thereof, supplemental thereto or substituted therefor.




          “Collateral” shall mean all property (whether real or personal) with respect to which
any security interests have been granted (or purported to be granted) pursuant to any Security
Document, including, without limitation, all Pledge Agreement Collateral, all Security Agreement
Collateral, all Mortgaged Properties and all cash and Cash Equivalents delivered as collateral
pursuant to Section 6.10 or 11 or any Credit Document and all Additional Collateral, if any. It is
understood and agreed that the term “Collateral” shall not include any Property which
constitutes Excluded Collateral, for so long as same constitutes Excluded Collateral.




-9-









 





          “Collateral Agent” shall mean the Administrative Agent acting as collateral agent for
the Secured Creditors pursuant to the Security Documents.




          “Collection Account” shall mean each account established at a Collection Bank subject
to a Cash Management Control Agreement into which funds shall be transferred as provided in Section
5.03(b).




          “Collection Banks” shall have the meaning provided in Section 5.03(b).




          “Commingled Inventory” shall mean Inventory of the Borrower or any Wholly-Owned
Subsidiary Guarantor that is commingled (whether pursuant to a consignment, a toll manufacturing
agreement or otherwise) with Inventory of another Person (other than the Borrower or any Guarantor)
at a location owned or leased by the Borrower or any Wholly-Owned Subsidiary Guarantor to the
extent that such Inventory of the Borrower or a Wholly-Owned Subsidiary Guarantor is not readily
identifiable.




          “Commitment Commission” shall have the meaning provided in Section 4.01(a).




          “Commodity Agreements” shall mean commodity agreements, hedging agreements and other
similar agreements or arrangements designed to protect against price fluctuations of commodities
(e.g., fuel) used in the business of the Borrower and its Subsidiaries.




          “Company” shall mean any corporation, limited liability company, partnership or other
business entity (or the adjectival form thereof, where appropriate).




          “Compliance Period” shall mean any period (x) commencing on the date on which the
Borrowing Availability is less than the Minimum Availability Amount for the eight consecutive
Business Days and (y) ending on the first date thereafter on which the Borrowing Availability has
been equal to or greater than the Minimum Availability Amount 30 consecutive days.




          “Consolidated Capital Expenditures” shall mean, for any period, the aggregate amount of
Capital Expenditures made by the Borrower and its Consolidated Subsidiaries during such period but
excluding any expenditures representing the reinvestment of the Net Sale Proceeds of any Asset Sale
or any proceeds of any Casualty Event.




          “Consolidated Current Assets” shall mean, at any time, the current assets of the
Borrower and its Consolidated Subsidiaries at such time determined on a consolidated basis (other
than assets held for sale).




          “Consolidated Current Liabilities” shall mean, at any time, the current liabilities of
the Borrower and its Consolidated Subsidiaries determined on a consolidated basis, but excluding
the current portion of, and accrued but unpaid interest on, any Indebtedness under this Agreement
and any other long-term Indebtedness which would otherwise be included therein and excluding
liabilities related to assets held for sale.





-10-









 








          “Consolidated EBIT” shall mean, for any period, the Consolidated Net Income (without
giving effect to (x) any extraordinary gains or losses and (y) any gains or losses from
sales of assets other than inventory sold in the ordinary course of business) before (i) total
interest expense (inclusive of amortization of deferred financing fees and any other original issue
discount) of the Borrower and its Consolidated Subsidiaries determined on a consolidated basis for
such period, and (ii) provision for taxes based on income and foreign withholding taxes, in each
case to the extent deducted in determining Consolidated Net Income for such period.




          “Consolidated EBITDA” shall mean for any period, Consolidated EBIT, adjusted by (x)
adding thereto (in each case to the extent deducted in determining Consolidated Net Income for such
period and not already added back in determining Consolidated EBIT) the amount of (i) all
depreciation and amortization expense that were deducted in determining Consolidated EBIT for such
period, (ii) any other non-cash charges incurred in such period, to the extent that same were
deducted in arriving at Consolidated EBIT for such period, (iii) the amount of all fees and
expenses incurred in connection with the Transaction, Amendment 1 or the refinancing of the
Existing 2009 Notes for such period to the extent same were deducted in arriving at Consolidated
EBIT for such period, and (iv) any losses attributable to the interest component of cross-currency
hedging arrangements even if such transactions are treated for GAAP purposes as foreign exchange
transactions to the extent same were deducted in arriving at Consolidated EBIT for such period, and
(y) subtracting therefrom, (i) to the extent included in arriving at Consolidated EBIT for such
period, the amount of non-cash gains during such period, (ii) the aggregate amount of all cash
payments made during such period in connection with non-cash charges incurred in a prior period, to
the extent such non-cash charges were added back pursuant to clause (x)(ii) above in a prior period
and (iii) any gains attributable to the interest component of cross-currency hedging arrangements
even if such transactions are treated for GAAP purposes as foreign exchange transactions to the
extent same were included in arriving at Consolidated EBIT for such period. Notwithstanding the
foregoing, Consolidated EBITDA of the Borrower for the fiscal quarters ended June 14, 2008, October
4, 2008 and January 3, 2009 shall be deemed to be $140,400,000, $51,300,000 and $81,900,000,
respectively, and notwithstanding anything to the contrary in the definition of Pro Forma Basis, no
adjustment shall be made to such amounts as a result of any transaction occurring prior to the
effective date of Amendment 1.




          “Consolidated Fixed Charges” shall mean, for any period, the sum, without duplication,
of the following amounts (in each case, determined for the Borrower and its Subsidiaries on a
consolidated basis for such period): (i) Consolidated Interest Expense payable in cash; (ii)
scheduled payments of principal on Consolidated Total Debt (except to the extent made with the
proceeds of Indebtedness other than any Loan); (iii) Consolidated Capital Expenditures; and (iv)
the portion of taxes based on income actually paid in cash (net of any cash refunds received during
such period and excluding any repatriation taxes) and provisions for cash income taxes.




-11-









 








          “Consolidated Interest Expense” shall mean, for any period, (i) the total consolidated
interest expense of the Borrower and its Subsidiaries (including, without limitation, all
commissions, discounts and other commitment and banking fees and charges (e.g., fees with
respect to letters of credit, Interest Rate Protection Agreements and Other Hedging Agreements) for
such period, adjusted to exclude (to the extent same would otherwise be included in the calculation
above in this clause (i)) the amortization of any deferred financing costs for such period,
plus (ii) without duplication, (x) that portion of Capitalized Lease Obligations of
Holdings and its Subsidiaries on a consolidated basis representing the interest factor for
such period, (y) the “deemed interest expense” (i.e., the interest expense which would have
been applicable if the respective obligations were structured as on-balance sheet financing
arrangements) with respect to all Indebtedness of Holdings and its Subsidiaries of the type
described in clause (viii) of the definition of Indebtedness contained herein (to the extent same
does not arise from a financing arrangement constituting an operating lease) for such period and
(z) gains or losses attributable to the interest component of cross-currency hedging arrangements
even if such transactions are treated for GAAP purposes as foreign exchange transactions.




          “Consolidated Net Debt” shall mean, at any time, the remainder of (I) the sum of
(without duplication) (i) all Indebtedness of the Borrower and its Consolidated Subsidiaries (on a
consolidated basis) as would be required to be reflected as debt or Capital Leases on the liability
side of a consolidated balance sheet of the Borrower and its Consolidated Subsidiaries in
accordance with U.S. GAAP, (ii) all Indebtedness of the Borrower and its Consolidated Subsidiaries
of the type described in clauses (ii) and (vii) of the definition of Indebtedness and (iii) all
Contingent Obligations of the Borrower and its Consolidated Subsidiaries in respect of Indebtedness
of any third Person of the type referred to in preceding clauses (i) and (ii) minus (II)
the aggregate amount of Unrestricted Cash Equivalents of Holdings and its Subsidiaries at such time
to the extent same would be reflected on a consolidated balance sheet of the Borrower if same were
prepared at such time; provided that (w) the amount available to be drawn under all letters
of credit, bankers’ acceptances, bank guaranties and similar obligations issued for the account of
the Borrower or any of its Consolidated Subsidiaries (but excluding, for avoidance of doubt, all
unpaid drawings or other monetary obligations owing in respect of such letters of credit, bankers’
acceptances, bank guaranties and similar obligations) shall not be included in any determination of
“Consolidated Net Debt”, (x) for purposes of this definition, the amount of Indebtedness in respect
of the Interest Rate Protection Agreements, Other Hedging Agreements and Commodities Agreements
shall be at any time the unrealized net loss position, if any, of the Borrower and/or its
Consolidated Subsidiaries thereunder on a marked-to-market basis determined no more than one month
prior to such time, (y) obligations arising under Synthetic Leases shall be included in determining
Consolidated Net Debt and (z) any Preferred Equity of the Borrower or any of its Consolidated
Subsidiaries shall be treated as Indebtedness, with an amount equal to the greater of the
liquidation preference or the maximum fixed repurchase price of any such outstanding Preferred
Equity deemed to be a component of Consolidated Net Debt.




-12-









 








          “Consolidated Net Income” shall mean, for any period, the net income (or loss) of the
Borrower and its Consolidated Subsidiaries determined on a consolidated basis for such period
(taken as a single accounting period) in accordance with U.S. GAAP, provided that the
following items shall be excluded in computing Consolidated Net Income (without duplication): (i)
except for determinations expressly required to be made on a Pro Forma Basis, the
net income (or loss) of any Person accrued prior to the date it becomes a Consolidated Subsidiary
or all or substantially all of the property or assets of such Person are acquired by a Consolidated
Subsidiary and (ii) the net income of any Consolidated Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such Consolidated Subsidiary of
such net income is not at the time permitted by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable
to such Consolidated Subsidiary.




          “Consolidated Senior Secured Net Debt” shall mean, at any time (x) the amount of
Consolidated Net Debt at such time less (y) all amounts reflected therein attributable to
Indebtedness which is totally unsecured.




          “Consolidated Subsidiary” shall mean, with respect to any Person, at any date, any
other Person the Equity Interests of which are owned by such Person and whose financial results are
consolidated in the financial statements of such Person in accordance with U.S. GAAP (and
consistent with the consolidation practices of the Borrower as in effect on the Initial Borrowing
Date), if such statements were prepared as of such date.




          “Consolidated Total Debt” shall mean, Consolidated Net Debt prior to any calculation
made pursuant to clause (II) of the definition thereof.




          “Contemplated Asset Sale” shall mean any sale of assets by the Borrower and/or one or
more of its Subsidiaries (including Real Property and Equity Interests held by such Persons but
excluding Equity Interests in the Bermuda Company and the Bermuda Partnership and any Person which
owns, directly or indirectly, Equity Interests therein); provided, however, that
(x) any such assets are not material to the operations of the Borrower and its Subsidiaries, (y) on
a pro forma basis, after giving effect to such transaction, the Borrower would be in compliance
with Section 9.13 of the Term Credit Agreement (as in effect on the effective date of Amendment 1)
as of the most recently completed test date and (z) the Borrower shall have provided a certificate
to the Administrative Agent stating that such sale is made as a, and complies with the requirements
of the definition of, Contemplated Asset Sale.




          “Contingent Obligation” shall mean, as to any Person, any obligation of such Person as
a result of such Person being a general partner of any other Person, unless the underlying
obligation is expressly made non-recourse as to such general partner, and any obligation of such
Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other
obligations (“primary obligations”) of any other Person (the “primary obligor”) in
any manner, whether directly or indirectly, including, without limitation, any obligation of such
Person, whether or not contingent, (i) to purchase any such primary obligation





-13-









 







or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof; provided, however, that the term
Contingent Obligation shall not include endorsements of instruments for deposit or collection in
the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the lesser of (x) the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith and (y) the stated amount of such Contingent
Obligation.




          “Continuing Directors” shall mean the directors of Holdings on the Effective Date and
each other director if such director’s nomination for election to the Board of Directors of
Holdings is recommended by a majority of the then Continuing Directors.




          “Core Concentration Account” shall have the meaning provided in Section 5.03(d).




          “Corporate Holdco” shall mean Dole Holding Company, Inc., a Delaware corporation and a
Wholly-Owned Subsidiary of Intermediate Holdco.




          “Credit Account” shall have the meaning provided in Section 5.03(f).




          “Credit Agreement Party” shall mean Holdings, Intermediate Holdco and the Borrower.




          “Credit Agreement Party Guaranty” shall mean the guaranty of each Credit Agreement
Party (other than the Borrower) pursuant to Section 14.




          “Credit Documents” shall mean this Agreement, the Subsidiaries Guaranty, the Pledge
Agreement, the Security Agreement, the Intercompany Subordination Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each Note and each other
Security Document.




          “Credit Event” shall mean the making of any Loan or the issuance of any Letter of
Credit.




          “Credit Party” shall mean each Credit Agreement Party and each Subsidiary Guarantor.




          “Customer” shall mean the account debtor with respect to any account and/or
prospective purchaser of goods, services or both with respect to any contract or contract right,
and/or any party who enters into or proposes to enter into any contract or other arrangement with




-14-









 







any Credit Party, pursuant to which such Credit Party is to sell any personal property or perform
any services.




          “DBNY” shall mean Deutsche Bank AG New York Branch, in its individual capacity, and
any successor corporation thereto by merger, consolidation or otherwise.




          “Default” shall mean any event, act or condition which with notice or lapse of time,
or both, would constitute an Event of Default.




          “Defaulting Lender” shall mean any Lender with respect to which a Lender Default is in
effect.




          “Deposit Account” shall mean a demand, time, savings, passbook or like account with a
bank, savings and loan association, credit union or like organization, other than an account
evidenced by a negotiable certificate of deposit.




          “Dilution” shall mean, as of any date of determination, a percentage, based upon the
experience of the immediately prior 13 fiscal periods, that is the result of dividing the Dollar
amount of (a) bad debt write-downs, discounts, advertising allowances, credits, or other dilutive
items with respect to the Accounts of the Borrower and each Wholly-Owned Subsidiary Guarantor
during such period, by (b) the billings of the Borrower and each Wholly-Owned Subsidiary Guarantor
with respect to their Accounts during such period.




          “Dilution Reserve” shall mean, as of any date of determination, an amount sufficient
to reduce the advance rate against Eligible Accounts by one percentage point (1%) for each
percentage point by which Dilution is in excess of 5%.




          “Dividend” shall have the meaning provided in Section 10.06.




          “Documents” shall mean, collectively, (i) the Credit Documents and (ii) the Term
Credit Documents.




          “Dole Settlement Company” shall mean the Borrower or a Qualified Obligor that is not
subject to the guaranty limitation applicable to the Bermuda Partnership Partners contained in the
U.S. Subsidiaries Guaranty (as defined in the Term Credit Agreement).




          “Dollars” and the sign “$” shall each mean freely transferable lawful money of
the United States.




          “Dollar Denominated Letter of Credit” shall mean each Letter of Credit denominated in
Dollars.




          “Dollar Equivalent” of an amount denominated in a currency other than Dollars shall
mean, at any time for the determination thereof, the amount of Dollars which could be purchased
with the amount of such currency involved in such computation at the spot exchange rate therefor as
quoted by the Administrative Agent as of 11:00 A.M. (New York time) on the date two Business Days
prior to the date of any determination thereof for purchase on such date;




-15-









 







provided that for purposes of (x) determining compliance with Sections 2.01(a), 2.01(b), 3.02, 5.02(a) and 7.01 and
(y) calculating Fees pursuant to Section 4.01, the Dollar Equivalent of any amounts denominated in
a currency other than Dollars shall be revalued on a monthly basis using the spot exchange rates
therefor as quoted in The Wall Street Journal (or, if same does not provide such exchange rates, on
such other basis as is reasonably satisfactory to the Administrative Agent) on the first Business
Day of each calendar month, (iii) at any time during a calendar month, if the Aggregate Exposure
(for the purposes of the determination thereof, using the Dollar Equivalent as recalculated based
on the spot exchange rate therefor as quoted in The Wall Street Journal (or, if same does not
provide such exchange rates, on such other basis as is reasonably satisfactory to the
Administrative Agent) on the respective date of determination pursuant to this exception) would
exceed 85% of the lesser of (x) the Total Commitment and (y) the Borrowing Base at such time, then
in the sole discretion of the Administrative Agent or at the request of the Required Lenders, the
Dollar Equivalent shall be reset based upon the spot exchange rates on such date as quoted in The
Wall Street Journal (or, if same does not provide such exchange rates, on such other basis as is
reasonably satisfactory to the Administrative Agent), which rates shall remain in effect until the
last Business Day of such calendar month or such earlier date, if any, as the rate is reset pursuant to this proviso and (iv)
notwithstanding anything to the contrary contained in this definition, at any time that a Default
or an Event of Default then exists, the Administrative Agent may revalue the Dollar Equivalent of
any amounts outstanding under the Credit Documents in a currency other than Dollars in its sole
discretion using the spot exchange rates therefor as quoted in The Wall Street Journal (or, if the
same does not provide such exchange rates, on such other basis as is reasonably satisfactory to the
Administrative Agent).




          “Domestic Subsidiary” of any Person shall mean any Subsidiary of such Person
incorporated or organized in the United States or any State or territory thereof or the District of
Columbia.




          “Drawing” shall have the meaning provided in Section 3.05(b).




          “Effective Date” shall have the meaning provided in Section 13.10.




          “Eligible Accounts” shall mean those Accounts created by the Borrower and the
Wholly-Owned Subsidiary Guarantors in the ordinary course of its business, that arise out of their
sale of goods or rendition of services, that comply with each of the representations and warranties
respecting Eligible Accounts made in the Credit Documents, and that are not excluded as ineligible
by virtue of one or more of the excluding criteria set forth below; provided,
however, that such criteria may be revised from time to time by Administrative Agent in its
Permitted Discretion to address the results of any audit performed by or on behalf of the
Administrative Agent from time to time after the Effective Date. Administrative Agent shall have
the right to establish, modify or eliminate Reserves against Eligible Accounts from time to time on
its Permitted Discretion. In determining the amount to be included, Eligible Accounts shall be
calculated net of customer deposits and unapplied cash. Eligible Accounts shall not include the
following:




-16-









 









     (a) Accounts that the Account Debtor has failed to pay within 90 days of original
invoice date or which are 60 days or more past due,




     (b) Accounts owed by an Account Debtor (or its Affiliates) where 50% or more of the
total amount of all Accounts owed by that Account Debtor (or its Affiliates) are deemed
ineligible under clause (a) above,




     (c) the amount of any credit balances greater than 90 days past their invoice date with
respect to any Account,




     (d) Accounts with selling terms of more than 60 days,




     (e) Accounts with respect to which the Account Debtor is (i) an Affiliate of the
Borrower or (ii) an employee or agent of the Borrower or any Affiliate of the Borrower,




     (f) Accounts arising in a transaction wherein goods are placed on consignment or are
sold pursuant to a guaranteed sale, a sale or return, a sale on approval,
a bill and hold, or any other terms by reason of which the payment by the Account
Debtor may be conditional,




     (g) Accounts that are not payable in U.S. Dollars or Canadian Dollars;




     (h) Accounts with respect to which the Account Debtor is a non-Governmental Authority
unless: (i) the Account Debtor either (A) maintains its Chief Executive Office in the
United States or Canada, or (B) is organized under the laws of the United States, Canada or
any state, territory, province or subdivision thereof; or (ii) (A) the Account is supported
by an irrevocable letter of credit satisfactory to Administrative Agent, in its Permitted
Discretion (as to form, substance, and issuer or domestic confirming bank), that has been
delivered to Administrative Agent and is directly drawable by Administrative Agent, or (B)
the Account is covered by credit insurance in form, substance, and amount, and by an
insurer, satisfactory to Administrative Agent, in its Permitted Discretion,




     (i) Accounts with respect to which the Account Debtor is the government of any foreign
country or sovereign state, or of any state, province, municipality, or other political
subdivision thereof, or of any department, agency, public corporation, or other
instrumentality thereof, unless (i) the Account is supported by an irrevocable letter of
credit satisfactory to Administrative Agent, in its Permitted Discretion (as to form,
substance, and issuer or domestic confirming bank), that has been delivered to
Administrative Agent and is directly drawable by Administrative Agent, or (ii) the Account
is covered by credit insurance in form, substance, and amount, and by an insurer,
satisfactory to Administrative Agent, in its Permitted Discretion,




     (j) Accounts with respect to which the Account Debtor is (i) the federal government of
Canada or any department, agency or instrumentality of Canada or (ii) the federal government
of the United States or any department, agency or instrumentality of



-17-









 







the United States (exclusive, however, of Accounts with respect to which the Borrower has complied, to the
reasonable satisfaction of Administrative Agent, with the Assignment of Claims Act, 31 USC §
3727),




     (k) Accounts with respect to which the Account Debtor is a creditor of the Borrower or
any Subsidiary of the Borrower, has or has asserted a right of setoff, or has disputed its
obligation to pay all or any portion of the Account, to the extent (including, without
limitation, with respect to rebates) of such claim, right of setoff, or dispute,




     (l) Accounts with respect to an Account Debtor whose total obligations owing to
Borrower or any Subsidiary of the Borrower exceed 20% (such percentage as applied to a
particular Account Debtor being subject to reduction by Administrative Agent in its
Permitted Discretion if the creditworthiness of such Account Debtor deteriorates or is
otherwise unacceptable) of all Eligible Accounts, to the extent of the obligations owing by
such Account Debtor in excess of such percentage; provided, however, that,
in each case, the amount of Eligible Accounts that are excluded because they exceed the
foregoing percentage shall be determined by Administrative Agent based
on all of the otherwise Eligible Accounts prior to giving effect to any eliminations
based upon the foregoing concentration limit,




     (m) Accounts with respect to which the Account Debtor is subject to an Insolvency
Proceeding, has gone out of business, or as to which any Credit Party has received notice of
an imminent Insolvency Proceeding or a material impairment of the financial condition of
such Account Debtor,




     (n) Accounts with respect to which the Account Debtor is located in a state, province
or jurisdiction (e.g., New Jersey, Minnesota, and West Virginia) that requires, as a
condition to access to the courts of such jurisdiction, that a creditor qualify to transact
business, file a business activities report or other report or form, or take one or more
other actions, unless the Borrower or Wholly-Owned Subsidiary Guarantor, as the case may be,
has so qualified, filed such reports or forms, or taken such actions (and, in each case,
paid any required fees or other charges), except to the extent that the Borrower or
Wholly-Owned Subsidiary Guarantor, as the case may be, may qualify subsequently as a foreign
entity authorized to transact business in such state or jurisdiction and gain access to such
courts, without incurring any cost or penalty viewed by Administrative Agent, in its
Permitted Discretion, to be significant in amount, and such later qualification cures any
access to such courts to enforce payment of such Account,




     (o) Accounts that are not subject to a valid and perfected First Priority Lien in favor
of the Collateral Agent pursuant to the relevant Security Document as provided in the
Intercreditor Agreement,




     (p) Accounts with respect to which (i) the goods giving rise to such Account have not
been shipped and billed to the Account Debtor, or (ii) the services giving rise to such
Account have not been performed and billed to the Account Debtor, or



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     (q) Accounts that represent the right to receive progress payments or other advance
billings that are due prior to the completion of performance by the Borrower of the subject
contract for goods or services.



          “Eligible Inventory” shall mean all of the Inventory owned by the Borrower or any
Wholly-Owned Subsidiary Guarantor and reflected in the most recent Borrowing Base Certificate
delivered by the Borrower to Administrative Agent, except any Inventory to which any of the
exclusionary criteria set forth below applies. Administrative Agent shall have the right to
establish, modify or eliminate Reserves against Eligible Inventory from time to time in its
Permitted Discretion. In addition, Administrative Agent shall have the right, from time to time,
to adjust any of the criteria set forth below and to establish new criteria with respect to
Eligible Inventory, in its Permitted Discretion. Eligible Inventory shall not include any
Inventory of the Borrower or a Wholly-Owned Subsidiary Guarantor that:





     (a) is not owned by the Borrower or a Wholly-Owned Subsidiary Guarantor free and clear
of all Liens and rights of any other Person (including the rights of a purchaser that has
made progress payments and the rights of a surety that has issued a bond to assure the
Borrower’s or Wholly-Owned Subsidiary Guarantor’s performance
with respect to that Inventory), except the First Priority Lien in favor of the
Collateral Agent on behalf of the ABL Secured Parties and a Second Priority Lien in favor of
the Term Collateral Agent on behalf of the Term Secured Parties and Permitted Liens in favor
of landlords, bailees and freight carriers and forwarders to the extent permitted in the
provisions of this Agreement (subject to Reserves established by Administrative Agent in
accordance with the provisions of this Agreement and other Permitted Liens);




     (b) one of the following is not applicable to such Inventory: (i) is located on
premises (including, without limitation, farms) owned, leased or rented by the Borrower or a
Wholly-Owned Subsidiary Guarantor and in the case of leased or rented premises either (x) if
requested by the Administrative Agent a reasonably satisfactory landlord waiver has been
delivered to the Administrative Agent or (y) Reserves (including, without limitation,
Reserves for grower payables), reasonably satisfactory to the Administrative Agent have been
established with respect thereto or (ii) is stored with a bailee (including, without
limitation, a processor or converter) at a leased location, and either (x) a reasonably
satisfactory landlord waiver has been delivered to the Administrative Agent, or (y) Reserves
(including Reserves for grower payables) reasonably satisfactory to the Administrative Agent
have been established with respect thereto, or (iii) is stored with a bailee or warehouseman
and (x) a reasonably satisfactory, acknowledged bailee letter has been received by the
Administrative Agent and Reserves reasonably satisfactory to the Administrative Agent have
been established with respect thereto or (y) Reserves reasonably satisfactory to the
Administrative Agent have been established with respect thereto, or (iv) is located at an
owned location subject to a mortgage or other security interest in favor of a creditor other
than the Collateral Agent or the Term Collateral Agent unless a Landlord Personal Property
Collateral Access Agreement has been delivered to the Administrative Agent, or (v) is
located on premises owned, leased or rented by a Customer of the Borrower or a Wholly-Owned
Guarantor Subsidiary, unless (A) the Administrative Agent has been notified thereof in
advance, (B)



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such Inventory of the Borrower or such Subsidiary Guarantor is clearly
segregated from all Inventory of such customer in a manner satisfactory to the
Administrative Agent in its Permitted Discretion, (C) all UCC filings deemed necessary or
desirable by the Administrative Agent have been made, including, without limitation, all UCC
filings in respect of consigned inventory naming Customer as debtor and the Borrower or
Subsidiary Guarantor as secured party and all assignments of such UCC filings by the
Borrower or any Subsidiary Guarantor to Collateral Agent as assignee of the secured party
and (D) a satisfactory collateral agreement, with respect to, among other things, access,
acknowledgment of Collateral Agent’s first priority Lien, UCC consignment filings and said
Customer’s agreement to notify Collateral Agent in advance if it changes its jurisdiction of
organization, has been delivered to Collateral Agent by such Customer, or (vi) is in transit
and clause (A), clause (B) or clause (C) of clause (d) below is applicable;




     (c) is placed on consignment unless Reserves reasonably satisfactory to the
Administrative Agent have been established with respect thereto;




     (d) is in transit, except inventory that is in transit (A) between locations owned or
leased by the Borrower or one or more of Subsidiary Guarantors, or (B) is in
transit within the United States and Canada and is under the control of the Borrower,
or (C) is in transit from a jurisdiction other than the United States and Canada to the
United States or Canada and consists solely of inventory consisting of the type produced,
marketed and/or distributed by Dole Packaged Foods, LLC on the Effective Date on a maritime
vessel and, in the case of clauses (B) and (C) with respect to which Reserves reasonably
satisfactory to the Administrative Agent and determined in the Administrative Agent’s
Permitted Discretion have been established with respect thereto;




     (e) is covered by a negotiable document of title, unless, at the Collateral Agent’s
request, such document has been delivered to Collateral Agent or an agent thereof and take
such other actions as the Administrative Agent requests in order to create a perfected First
Priority security interest in favor of the Collateral Agent in such Inventory with all
necessary endorsements, free and clear of all Liens except those in favor of Collateral
Agent and the Term Collateral Agent and the amount of any shipping fees, costs and expenses
shall be reflected in Inbound Freight Reserves;




     (f) is excess, obsolete, unsalable, seconds, damaged or unfit for sale;




     (g) consists of display items or packaging material (other than linerboard), or
shipping materials, supplies, fuel or replacement parts for equipment of Holdings and its
Subsidiaries;




     (h) consists of goods that have been returned by the buyer and are not in salable
condition;




     (i) is not of a type held for sale in the ordinary course of the Borrower’s or any
Wholly-Owned Subsidiary Guarantor’s business;



-20-









 






     (j) is not subject to a First Priority Lien in favor of the Collateral Agent on behalf
of the ABL Secured Parties and a Second Priority Lien in favor of the Collateral Agent on
behalf of the Term Secured Parties, in each case as provided in the Intercreditor Agreement;
provided, that no Inventory subject to a Permitted Lien shall be Eligible Inventory to the
extent, but only to the extent, a Permitted Lien primes the First Priority Lien granted to
Collateral Agent, as determined by the Administrative Agent in its Permitted Discretion;




     (k) breaches in any material respect any of the representations or warranties
pertaining to Inventory set forth in the Credit Documents;




     (l) does not conform to all standards imposed by any governmental agency, division or
department thereof which has regulatory authority over such goods or the use or sale
thereof;




     (m) is Commingled Inventory;




     (n) is located outside of the United States of America or Canada; other than Inventory
which is in transit as to which sub-clause (C) of clause (d) above is applicable;




     (o) is subject to a license agreement or other arrangement with a third party which, in
the Administrative Agent’s determination, restricts the ability of the Administrative Agent
to exercise its rights under the Credit Documents with respect to such Inventory unless such
third party has entered into an agreement in form and substance reasonably satisfactory to
the Administrative Agent permitting the Administrative Agent to exercise its rights with
respect to such Inventory or the Administrative Agent has otherwise agreed to allow such
Inventory to be eligible in the Administrative Agent’s Permitted Discretion; or




     (p) is otherwise unacceptable to Administrative Agent in its Permitted Discretion.



          “Eligible Transferee” shall mean and include a commercial bank, an insurance company,
a finance company, a financial institution, any fund that invests in loans or any other “accredited
investor” (as defined in Regulation D of the Securities Act), but in any event excluding Holdings,
its Subsidiaries and Affiliates.




          “End Date” shall have the meaning provided in the definition of Applicable Margin.




          “Environmental Claims” shall mean any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of non-compliance or violation,
investigations or proceedings relating in any way to any violation (or alleged violation) by
Holdings or any of its Subsidiaries under any Environmental Law or any permit issued to Holdings or
any of its Subsidiaries under any such law (hereafter “Claims”), including, without
limitation, (a) any and all Claims by governmental or regulatory authorities for enforcement,
cleanup, removal, response, remedial or other actions or damages pursuant to any applicable




-21-









 







Environmental Law, and (b) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous
Materials or arising from alleged injury or threat of injury to health, safety or the environment.




          “Environmental Law” shall mean any federal, state or local policy having the force and
effect of law, statute, law, rule, regulation, ordinance, code or rule of common law now or
hereafter in effect and in each case as amended, and any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent, decree or judgment (for purposes
of this definition (collectively, “Laws”)), relating to the indoor or outdoor environment,
or Hazardous Materials or health and safety to the extent such health and safety issues arise under
the Occupational Safety and Health Act of 1970, as amended, or any such similar Laws.




          “Equity Infusion” shall mean (i) in the case of Holdings, the sale or issuance of
Equity Interests of Holdings to, or a capital contribution to Holdings by, David H. Murdock or any
of his affiliates and (ii) in the case of Intermediate Holdco, the sale or issuance of Equity
Interests of Intermediate Holdco to, or a capital contribution to Intermediate Holdco by, Holdings
which is financed by Holdings solely with the proceeds of the sale or issuance of Equity Interests
and/or capital contributions described in preceding clause (i).




          “Equity Interests” of any Person shall mean any and all shares, interests, rights to
purchase, warrants, options, participation or other equivalents of or interest in (however
designated) equity of such Person, including any common stock, preferred stock, any limited or
general partnership interest and any limited liability company membership interest.




          “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the regulations promulgated and rulings issued thereunder. Section
references to ERISA are to ERISA, as in effect on the Initial Borrowing Date and any subsequent
provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.




          “ERISA Affiliate” shall mean each person (as defined in Section 3(9) of ERISA) which
together with Holdings or a Subsidiary of Holdings would be deemed to be a “single employer” (i)
within the meaning of Section 414(b), (c), (m) or (o) of the Code or (ii) as a result of Holdings
or a Subsidiary of Holdings being or having been a general partner of such Person.




          “Euro Denominated Loan” shall mean all Loans denominated in Euros.




          “Euro Denominated Obligations” shall mean the principal aggregate amount of all Euro
Denominated Loans and the Stated Amount of all Euro Denominated Letters of Credit.




          “Euro Denominated Letter of Credit” shall mean each Letter of Credit denominated in
Euros.




          “Euro LIBOR” shall mean, with respect to each Borrowing of Euro Denominated Loans, (i)
the rate per annum for deposits in Euros as determined by the Administrative Agent





-22-









 







for a period corresponding to the duration of the relevant Interest Period which appears on Reuters Page
EURIBOR-01 (or any successor page) at approximately 11:00 A.M. (Brussels time) on the date which is
two Business Days prior to the commencement of such Interest Period or (ii) if such rate is not
shown on Reuters Page EURIBOR-01 (or any successor page), the average offered quotation to prime
banks in the Euro-zone interbank market by the Administrative Agent for Euro deposits of amounts
comparable to the principal amount of the Euro Denominated Loan to be made by the Administrative
Agent as part of such Borrowing with maturities comparable to the Interest Period to be applicable
to such Loan (rounded upward to the next whole multiple of 1/16 of 1%), determined as of 11:00 A.M.
(Brussels time) on the date which is two Business Days prior to the commencement of such Interest
Period; provided that in the event the Administrative Agent has made any determination
pursuant to Section 2.10(a)(i) in respect of Loans denominated in Euros, or in the circumstances
described in clause (i) to the proviso to Section 2.10(b) in respect of Loans denominated in Euros,
Euro LIBOR determined pursuant to this definition shall instead be the rate determined by the
Administrative Agent as the all-in-cost of funds for the Administrative Agent (or such other
Lender) to fund a Borrowing of Loans denominated in Euros with maturities comparable to the
Interest Period applicable thereto.




          “Euro Rate” shall mean and include each of the Eurodollar Rate, Euro LIBOR and
Sterling LIBOR.




          “Euro Rate Loan” shall mean each Eurodollar Loan, each Euro Denominated Loan and each
Sterling Denominated Loan.




          “Eurodollar Loan” shall mean each Loan (other than a Swingline Loan) designated as
such by the Borrower at the time of the incurrence thereof or conversion thereto.




          “Eurodollar Rate” shall mean (a) the offered quotation to first-class banks in the New
York interbank Eurodollar market by the Administrative Agent for Dollar deposits of amounts in
immediately available funds comparable to the outstanding principal amount of the Eurodollar Loan
of the Administrative Agent (in its capacity as a Lender) (or, if the Administrative Agent is not a
Lender with respect thereto, taking the average principal amount of the Eurodollar Loan then being
made by the various Lenders pursuant thereto)) with maturities comparable to the Interest Period
applicable to such Eurodollar Loan commencing two Business Days thereafter at 10:00 A.M. (New York
City time) on the applicable Interest Determination Date, divided (and rounded upward to the
nearest 1/16 of 1%) by (b) a percentage equal to 100% minus the then stated maximum rate of
all reserve requirements (including, without limitation, any marginal, emergency, supplemental,
special or other reserves required by applicable law) applicable to any member bank of the Federal
Reserve System in respect of Eurocurrency funding or liabilities as defined in Regulation D (or any
successor category of liabilities under Regulation D).




          “European Commission Decision” means the €45.6 million fine imposed by the European Commission
on the Borrower and certain of its Subsidiaries as more particularly described in a press release
issued by the European Commission on October 15, 2008.




          “Event of Default” shall have the meaning provided in Section 11.




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          “Excess Cash Flow” shall mean, for any period, the remainder of (a) the sum of,
without duplication, (i) Adjusted Consolidated Net Income for such period and (ii) the decrease, if
any, in Adjusted Consolidated Working Capital from the first day to the last day of such period,
minus (b) the sum of, without duplication, (i) the aggregate amount of all Capital
Expenditures made by the Borrower and its Subsidiaries during such period (other than Capital
Expenditures to the extent financed with equity proceeds, Equity Interests, asset sale proceeds,
insurance proceeds or Indebtedness (other than with Loans, Swingline Loans, Original Revolving
Loans, or Original Swingline Loans)), (ii) the aggregate amount of permanent principal payments of
Indebtedness for borrowed money of the Borrower and its Subsidiaries and the permanent repayment of
the principal component of Capitalized Lease Obligations of the Borrower and its Subsidiaries
during such period (other than (A) repayments, to the extent made with asset sale proceeds, equity
proceeds, insurance proceeds or Indebtedness (other than with proceeds of Loans, Original Revolving
Loans or Original Swingline Loans), (B) repayments of Original Loans, unless same were required as
a result of a Scheduled Repayment (as defined in the Original Credit Agreement under Section
4.02(b) of the Original Credit Agreement, (C) repayments of the Loans or (D) a Scheduled Repayment
of the Term Loans under Section 4.02(b) of the Term Credit Agreement, as the case may be) and (iii)
the increase, if any, in Adjusted Consolidated Working Capital from the first day to the last day
of such period.




          “Excess Cash Flow Payment Period” shall mean, with respect to any Excess Cash Payment
Date, the immediately preceding Fiscal Year of Holdings.




          “Excess Cash Payment Date” shall mean the date occurring 3 Business Days after the
90th day following the last day of each Fiscal Year of Holdings.




          “Excluded Bermuda Insurance Companies” shall mean and include (i) Ashford Company
Limited, a limited liability corporation organized under laws of Bermuda, and (ii) Mendocino
Limited, a limited liability corporation organized under laws of Bermuda.




          “Excluded Collateral” shall mean and include (i) each Principal Property of the
Borrower and any of its Restricted Subsidiaries, (ii) all shares of capital stock or Indebtedness
(as defined in the Existing 2013 Senior Notes Indenture as in effect on the Initial Borrowing Date)
of any Restricted Subsidiary of the Borrower (which Indebtedness (as so defined) is then held by
the Borrower or any Restricted Subsidiary), (iii) Margin Stock owned or held by Holdings or any of
its Subsidiaries, except to the extent required to be pledged pursuant to Section 9.19 and (iv) the
Wellbeing Project Financing Interest Reserve Account; provided that the collateral
described in preceding clauses (i) and (ii) shall cease to constitute “Excluded Collateral” upon
the repayment in full of all Existing 2009 Senior Notes and all Existing 2013 Senior Notes.




          “Excluded Deposit Accounts” shall mean (i) Deposit Accounts with an aggregate monthly
balance of less than $500,000, provided that, with respect to this clause (i) only, the
aggregate amount in all such Deposit Accounts excluded pursuant to this clause (i) does not exceed
$5,000,000 at any time, (ii) deposit accounts specially and exclusively used for payroll, payroll
taxes and other employee wage and benefit payments to or for the benefit of the U.S. Dole Group’s
salaried employees and (iii) such other accounts used solely for disbursement





-24-









 







purposes, provided that the aggregate balance maintained in the accounts described in clauses (i),
(ii) and (iii) above shall not exceed $25,000,000 for more than consecutive five Business Days.




          “Excluded Domestic Subsidiary” shall mean County Line Mutual Water Company, a
Wholly-Owned Domestic Subsidiary of the Borrower.




          “Existing 2009 Senior Notes” shall mean the Borrower’s 8-5/8% Senior Notes due 2009,
issued pursuant to the Existing 2009 Senior Notes Indenture, as in effect on the Initial Borrowing
Date and as the same may be amended, modified or supplemented from time to time in accordance with
the terms hereof and thereof.




          “Existing 2009 Senior Notes Documents” shall mean the Existing 2009 Senior Notes, the
Existing 2009 Senior Notes Indenture and all other documents executed and delivered with respect to
the Existing 2009 Senior Notes or Existing 2009 Senior Notes Indenture, as in effect on the Initial
Borrowing Date and as the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.




          “Existing 2009 Senior Notes Indenture” shall mean the Indenture, dated as of July 15,
1993, among the Borrower, any Subsidiary Guarantors from time to time party thereto and the trustee
therefor, as in effect on the Initial Borrowing Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.




          “Existing 2010 Senior Notes” shall mean the Borrower’s 7-1/4% Senior Notes due 2010,
issued pursuant to the Existing 2010 Senior Notes Indenture, as in effect on the Initial
Borrowing Date and as the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.




          “Existing 2010 Senior Notes Documents” shall mean the Existing 2010 Senior Notes, the
Existing 2010 Senior Notes Indenture and all other documents executed and delivered with respect to
the Existing 2010 Senior Notes or Existing 2010 Senior Notes Indenture, as in effect on the Initial
Borrowing Date and as the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.




          “Existing 2010 Senior Notes Indenture” shall mean the Indenture, dated as of May 29,
2003, among the Borrower, any Subsidiary Guarantors from time to time party thereto and the trustee
therefor, as in effect on the Initial Borrowing Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.




          “Existing 2011 Senior Notes” shall mean the Borrower’s 8-7/8% Senior Notes due 2011,
issued pursuant to the Existing 2011 Senior Notes Indenture, as in effect on the Initial Borrowing
Date and as the same may be amended, modified or supplemented from time to time in accordance with
the terms hereof and thereof.




          “Existing 2011 Senior Notes Documents” shall mean the Existing 2011 Senior Notes, the
Existing 2011 Senior Notes Indenture and all other documents executed and delivered with respect to
the Existing 2011 Senior Notes or Existing 2011 Senior Notes Indenture, as in





-25-









 







effect on the Initial Borrowing Date and as the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.




          “Existing 2011 Senior Notes Indenture” shall mean the Indenture, dated as of March 28,
2003, among the Borrower, any Subsidiary Guarantors from time to time party thereto and the trustee
therefor, as in effect on the Initial Borrowing Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.




          “Existing 2013 Senior Notes” shall mean the Borrower’s 7-7/8% Senior Notes due 2013,
issued pursuant to the Existing 2013 Senior Notes Indenture, as in effect on the Initial Borrowing
Date and as the same may be amended, modified or supplemented from time to time in accordance with
the terms hereof and thereof.




          “Existing 2013 Senior Notes Documents” shall mean the Existing 2013 Senior Notes, the
Existing 2013 Senior Notes Indenture and all other documents executed and delivered with respect to
the Existing 2013 Senior Notes or Existing 2013 Senior Notes Indenture, as in effect on the Initial
Borrowing Date and as the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.




          “Existing 2013 Senior Notes Indenture” shall mean the Indenture, dated as of July 15,
1993, among the Borrower, any Subsidiary Guarantors from time to time party thereto and the trustee
therefor, as in effect on the Initial Borrowing Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.




          “Existing Credit Agreement” shall mean the Credit Agreement, dated as of March 28,
2003 and amended and restated as of April 18, 2005 as amended, among Holdings, Intermediate Holdco,
the Borrower, Solvest Ltd., Deutsche Bank AG New York Branch, as agent, and the other lenders party
thereto (as amended through and including the Initial Borrowing Date).




          “Existing Indebtedness” shall mean and include Scheduled Existing Indebtedness and the
Existing Senior Notes Documents.




          “Existing Indebtedness Agreements” shall have the meaning provided in Section 6.05.




          “Existing Letters of Credit” shall have the meaning provided in Section 3.01(c).




          “Existing Senior Notes” shall mean and include the Existing 2009 Senior Notes, the
Existing 2013 Senior Notes, the Existing 2011 Senior Notes and the Existing 2010 Senior Notes.




          “Existing Senior Notes Documents” shall mean and include (i) the Existing 2009 Senior
Notes Documents, (ii) the Existing 2013 Senior Notes Documents, (iii) the Existing 2011 Senior
Notes Documents and (iv) the Existing 2010 Senior Notes Documents.





-26-









 








          “Expenses” shall mean all present and future reasonable and invoiced expenses incurred
by or on behalf of the Administrative Agent or any Issuing Lender in connection with this
Agreement, any other Credit Document or otherwise in its capacity as the Administrative Agent under
this Agreement or as the Collateral Agent under any Security Document or as an Issuing Lender under
this Agreement, whether incurred heretofore or hereafter, which expenses shall include, without
limitation, the cost of record searches, the reasonable fees and expenses of attorneys and
paralegals, all reasonable and invoiced costs and expenses incurred by the Administrative Agent
(and the Collateral Agent) in opening bank accounts, depositing checks, electronically or otherwise
receiving and transferring funds, and any other charges imposed on the Administrative Agent (and
the Collateral Agent) due to insufficient funds of deposited checks and the standard fee of the
Administrative Agent (and the Collateral Agent) relating thereto, collateral examination fees and
expenses, reasonable fees and expenses of accountants, appraisers or other consultants, experts or
advisors employed or retained by the Administrative Agent (and the Collateral Agent), fees and
taxes related to the filing of financing statements, costs of preparing and recording any other
Credit Documents, all expenses, costs and fees set forth in this Agreement and the other Credit
Documents, all other fees and expenses required to be paid pursuant to any other letter agreement
and all fees and expenses incurred in connection with releasing Collateral and the amendment or
termination of any of the Credit Documents.




          “Exposure” shall mean, for any Lender, an amount equal to its RL Percentage of the
Aggregate Exposure.




          “Facing Fee” shall have the meaning provided in Section 4.01(c).




          “Fair Market Value” shall mean, with respect to any asset (including any Equity
Interests of any Person), the price at which a willing buyer, not an Affiliate of the seller, and a
willing seller who does not have to sell, would agree to purchase and sell such asset, as
determined in good faith by the board of directors or other governing body or, pursuant to a
specific delegation of authority by such board of directors or governing body, a designated senior
executive officer, of Holdings, or the Subsidiary of Holdings selling such asset.




          “Federal Funds Rate” shall mean, for any period, a fluctuating interest rate equal for
each day during such period to the weighted average of the rates on overnight Federal Funds
transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on such transactions received by the
Administrative Agent from three Federal Funds brokers of recognized standing selected by the
Administrative Agent.




          “Fees” shall mean all amounts payable pursuant to or referred to in Section 4.01.




          “First Priority” shall mean, with respect to any Lien purported to be created on any
Collateral pursuant to any Security Document, that such Lien is prior in right to any other Lien
thereon, other than any Permitted Liens (excluding Permitted Liens as described in clause (iii) of
Section 10.03) applicable to such Collateral which as a matter of law (and giving effect to




-27-









 







any actions taken pursuant to the last paragraph of Section 10.03) have priority over the respective
Liens on such Collateral created pursuant to the relevant Security Document.




          “Fiscal Month” shall mean each period of four calendar weeks commencing on the Sunday
following the last day of the Borrower’s immediately preceding Fiscal Year or the first day after
the last day of the preceding Fiscal Month and terminating four weeks after it commences except
that the last Fiscal Month of each Fiscal Year shall be extended as needed to coincide with the
last day of such Fiscal Year.




          “Fiscal Quarter” shall mean, for any Fiscal Year, each of (i) the first twelve weeks
of such Fiscal Year, (ii) the thirteenth week of such Fiscal Year through the twenty-fourth week of
such Fiscal Year, (iii) the twenty-fifth week of such Fiscal Year through the forty-first week of
such Fiscal Year and (iv) forty-second week of such Fiscal Year through the last day of such Fiscal
Year, as the case may be. For purposes of this Agreement, a reference to the 1st Fiscal Quarter of
any Fiscal Year shall be a reference to the period referred to in clause (i) above; a reference to
the 2nd Fiscal Quarter of any Fiscal Year shall be a reference to the period referred to in clause
(ii) above; a reference to the 3rd Fiscal Quarter of any Fiscal Year shall be a reference to the
period referred to in clause (iii) above; and a reference to the 4th Fiscal Quarter of any Fiscal
Year shall be a reference to the period referred to in clause (iv) above.




          “Fiscal Year” shall mean the fiscal year of Holdings and its Subsidiaries ending on
the Saturday nearest to December 31 of each calendar year. For purposes of this Agreement, any
particular Fiscal Year shall be designated by reference to the calendar year in which the majority
of such Fiscal Year falls.




          “Fixed Charge Coverage Ratio” shall mean the ratio as of the last day of any Fiscal
Quarter of (i) Consolidated EBITDA for the four consecutive Fiscal Quarters then ending to (ii)
Consolidated Fixed Charges for such four-Fiscal Quarter period.




          “Foreign Asset Transfer” shall mean, collectively, (i) the transfer by Bermuda
Partnership Partner #1 or the Bermuda Partnership of shares of Transtrading Overseas Limited, (ii)
the transfer by the Borrower of shares of Dole Pacific General Services Ltd. and (iii) the transfer
by the Borrower of shares of Castle & Cooke Worldwide Limited, in each case to Dole Foreign
Holdings II Ltd. (or such other Foreign Subsidiary as is acceptable to the Administrative Agent).




          “Foreign Credit Party” shall have the meaning provided in the Term Credit Agreement.




          “Foreign Pension Plan” shall mean any plan, fund (including, without limitation, any
superannuation fund) or other similar program established or maintained outside the United States
of America by Holdings or any one or more of its Subsidiaries primarily for the benefit of
employees of Holdings or any of its Subsidiaries residing outside the United States of America,
which plan, fund or other similar program provides, or results in, retirement income, a deferral of
income in contemplation of retirement or payments to be made upon termination of employment, and
which plan is not subject to ERISA or the Code.




-28-









 








          “Foreign Subsidiary” shall mean, as to any Person, any Subsidiary of such Person that
is not a Domestic Subsidiary of such Person.




          “Gaston Property” shall have the meaning provided in Section 10.02(xix).




          “General Intangibles” shall mean “general intangibles” (as such term is defined in
Article 9 of the UCC), including payment intangibles, contract rights, rights to payment, rights
arising under common law, statutes, or regulations, choses or things in action, goodwill, patents,
trade names, trade secrets, trademarks, servicemarks, copyrights, blueprints, drawings, purchase
orders, customer lists, monies due or recoverable from pension funds, route lists, rights to
payment and other rights under any royalty or licensing agreements, infringement claims, computer
programs, information contained on computer disks or tapes, software, literature, reports,
catalogs, insurance premium rebates, tax refunds, and tax refund claims, and any and all supporting
obligations in respect thereof, and any other personal property other than Accounts, Deposit
Accounts, goods, Investment Property, and Negotiable Collateral.




          “Governmental Authority” shall mean the government of the United States of America,
any other nation or any political subdivision thereof, whether state, provincial or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.




          “Guaranteed Creditors” shall mean and include each of the Agents, the Collateral
Agent, the Lenders and the Issuing Lenders.




          “Guaranteed Obligations” shall mean the full and prompt payment when due (whether at
the stated maturity, by acceleration or otherwise) of the principal and interest on each Note
issued by, and all Loans made to, the Borrower under this Agreement and all reimbursement
obligations and Unpaid Drawings with respect to Letters of Credit, together with all the other
obligations (including obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due), indebtedness and liabilities (including, without limitation,
indemnities, fees and interest (including any interest accruing after the commencement of any
bankruptcy, insolvency, receivership or similar proceeding at the rate provided for herein, whether
or not such interest is an allowed claim in any such proceeding) thereon) of the Borrower to the
Lenders, the Issuing Lenders, the Administrative Agent and the Collateral Agent now existing or
hereafter incurred under, arising out of or in connection with this Agreement and each other Credit
Document to which the Borrower is a party and the due performance and compliance by the Borrower
with all the terms, conditions and agreements contained in the Credit Agreement and in each such
other Credit Document.




          “Guarantor” shall mean each Credit Agreement Party (other than the Borrower) and each
Subsidiary Guarantor.




          “Guaranty” shall mean each of the Credit Agreement Party Guaranty and the Subsidiaries
Guaranty.




-29-









 








          “Hazardous Materials” shall mean (a) any petrochemical or petroleum products,
radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam
insulation, transformers or other equipment that contain dielectric fluid containing levels of
polychlorinated biphenyls, and radon gas; and (b) any chemicals, materials or substances defined as
or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,”
“restricted hazardous materials,” “extremely hazardous wastes,” “restrictive hazardous wastes,”
“toxic substances,” “toxic pollutants,” “contaminants” or “pollutants,” or words of similar meaning
and regulatory effect.




          “Highest Applicable Margins” shall have the meaning provided in the definition of
Applicable Margin.




          “Holdings” shall have the meaning provided in the first paragraph of this Agreement.




          “Holdings Common Stock” shall have the meaning provided in Section 8.13(a).




          “Incremental Commitment” shall mean, for any Lender, any commitment by such Lender to
increase its Revolving Loan Commitment (in the case of an Existing Lender) or become party to this
Agreement and provide a Revolving Loan Commitment, in each case, as set forth in the respective
Incremental Commitment Agreement delivered pursuant to Section 2.14; it being understood, however,
that on each date upon which an Incremental Commitment of any Lender becomes effective, such
Incremental Commitment of such Lender shall be added to (and thereafter become a part of) the
Revolving Loan Commitment of such Lender for all purposes of this Agreement as contemplated by
Section 2.14.




          “Incremental Commitment Agreement” shall mean each Incremental Commitment Agreement in
the form of Exhibit R (appropriately completed) executed and delivered in accordance with
Section 2.14.




          “Inbound Freight Reserve” shall mean reserves established by the Administrative Agent
from time to time in its Permitted Discretion for all inbound freight costs.




          “Incremental Commitment Date” shall mean each date upon which an Incremental
Commitment under an Incremental Commitment Agreement becomes effective as provided in Section
2.14(b).




          “Incremental Commitment Request Requirements” shall mean, with respect to any request
for an Incremental Commitment made pursuant to Section 2.14, the satisfaction of each of the
following conditions on the date of such request: (x) no Default or Event of Default then exists
or would result therefrom (for purposes of such determination, assuming the relevant Loans in an
aggregate principal amount equal to the full amount of Incremental Commitments then requested had
been incurred, and the proposed Permitted Acquisition (if any) to be financed with the proceeds of
such Loans had been consummated, on such date or request) and all of the representations and
warranties contained herein and in the other Credit Documents are true and correct in all material
respects at such time (unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material respects




-30-









 







as of such earlier date); and (y) the Credit Parties shall be in compliance with the covenant contained in
Section 10.08 determined as if a Compliance Period is then in existence, calculating the Fixed
Charge Coverage Ratio therein based on the four Fiscal Quarter period ended with the last Fiscal
Quarter for which financial statements have been delivered pursuant to Section 9.01(b) on or prior
to the date of the request for Incremental Commitments, on a Pro Forma Basis, as if the
relevant Loans to be made pursuant to such Incremental Commitments (assuming the full utilization
thereof) had been incurred, and the proposed Permitted Acquisition (if any) to be financed with the
proceeds of such Loans (as well as other Permitted Acquisition theretofore consummated after the
first day of such four Fiscal Quarter period) had occurred, on the first day of such four Fiscal
Quarter period.




          “Incremental Commitment Requirements” shall mean with respect to any provision of an
Incremental Commitment on a given Incremental Commitment Date, the satisfaction of each of the
following conditions on or prior to the effective date of the respective Incremental Commitment
Agreement: (s) no Default or Event of Default then exists or would result therefrom (for purposes
of such determination, assuming the relevant Loans in an aggregate principal amount equal to the
full amount of Incremental Commitments then provided had been incurred, and the proposed Permitted
Acquisition (if any) to be financed with the proceeds of such Loans had been consummated, on such
date of effectiveness) and all of the representations and warranties contained herein and in the
other Credit Documents are true and correct in all material respects at such time (unless stated to
relate to a specific earlier date, in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date); (t) the Borrower and its
Subsidiaries shall have delivered such amendments, modifications and/or supplements to the Security
Documents as are necessary, or in the reasonable opinion of the Administrative Agent desirable, to
insure that the additional obligations are secured by, and entitled to the benefits of, the
Security Documents; (u) calculations are made by Holdings demonstrating compliance with the covenant contained in
Section 10.08 (determined as if a Compliance Period is then in existence), calculating the Fixed
Charge Coverage Ratio therein based on the four Fiscal Quarter period ended with the last Fiscal
Quarter for which financial statements have been delivered pursuant to Section 9.01(b) on or prior
to the date of the request for Incremental Commitments on or prior to such date of effectiveness,
on a pro forma basis, as if the relevant Loans to be made pursuant to such Incremental Commitments
(assuming the full utilization thereof) had been incurred, and the proposed Permitted Acquisition
(if any) to be financed with the proceeds of such Loans (as well as other Permitted Acquisition
theretofore consummated after the first day of such four Fiscal Quarter period) had occurred, on
the first day of such four Fiscal Quarter period; (v) the delivery by Holdings to Administrative
Agent of an officer’s certificate executed by the chief financial officer of Holdings and
certifying as to compliance with preceding clauses (t) and (u) and containing the calculations (in
reasonable detail) required by preceding clause (u); (w) the delivery by Holdings to Administrative
Agent of an acknowledgement in form and substance reasonable satisfactory to Administrative Agent
and executed by each Guarantor, acknowledging that such Incremental Commitment and all Loans
subsequently incurred pursuant to such Incremental Commitment shall constitute (and be included in
the definition of) “Guaranteed Obligations”; (x) the delivery by Holdings to Administrative Agent
of an opinion or opinions, in form and substance reasonably satisfactory to Administrative Agent,
from counsel to the Credit Parties reasonably satisfactory to Administrative Agent and dated such
date, covering such of the




-31-









 







matters set forth in the opinions of counsel delivered to Administrative Agent on the Initial Borrowing Date pursuant to Section 6.03 as may be reasonably requested by
Administrative Agent, and such other matters incident to the transactions contemplated thereby as
Administrative Agent may reasonably request, (y) the delivery by each Credit Party to
Administrative Agent of such other officers’ certificates, board of director (or equivalent
governing body) resolutions and evidence of good standing (to the extent available under applicable
law) as Administrative Agent shall reasonably request, and (z) the completion by each Credit Party
of such other actions as Administrative Agent may reasonably request in connection with such
Incremental Loan Commitment.




          “Incremental Lender” shall have the meaning specified in Section 2.14(b).




          “Indebtedness” shall mean, as to any Person, without duplication, (i) all indebtedness
(including principal, interest, fees and charges) of such Person for borrowed money or for the
deferred purchase price of property or services, (ii) the maximum amount available to be drawn or
paid under all letters of credit, bankers’ acceptances, bank guaranties and similar obligations
issued for the account of such Person and all unpaid drawings and unreimbursed payments in respect
of such letters of credit, bankers’ acceptances, bank guaranties and similar obligations, (iii) all
indebtedness of the types described in clause (i), (ii), (iv), (v), (vi) or (vii) of this
definition secured by any Lien on any property owned by such Person, whether or not such
indebtedness has been assumed by such Person (provided that, if the Person has not assumed
or otherwise become liable in respect of such indebtedness, such indebtedness shall be deemed to be
in an amount equal to the fair market value of the property to which such Lien relates as
determined in good faith by such Person), (iv) the aggregate amount of all Capitalized Lease
Obligations of such Person, (v) all obligations of such Person to pay a specified purchase price
for goods or services, whether or not delivered or accepted, i.e., take-or-pay and similar
obligations, (vi) all Contingent Obligations of such Person, and (vii) all obligations under any
Interest Rate Protection Agreement, any Other Hedging Agreement, Commodity Agreements or under
any similar type of agreement and (viii) obligations arising under Synthetic Leases.
Notwithstanding the foregoing, Indebtedness shall not include trade payables, accrued expenses and
deferred tax and other credits incurred by any Person in accordance with customary practices and in
the ordinary course of business of such Person.




          “Initial Borrowing Date” shall mean the date occurring on or after the Effective Date
on which the initial Borrowing of Loans occurs.




          “Insolvency Proceeding” shall mean any proceeding commenced by or against any Person
under any provision of the Bankruptcy Code, the Bankruptcy and Insolvency Act (Canada), the
Companies’ Creditors Arrangement Act (Canada) or under any other state, provincial or federal
bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal
moratoria, compositions, extensions generally with creditors, or proceedings seeking
reorganization, arrangement, or other similar relief.




          “Intercompany Debt” shall mean any Indebtedness, payables or other obligations,
whether now existing or hereafter incurred, owed by Holdings or any Subsidiary of Holdings to
Holdings or any other Subsidiary of Holdings.





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          Intercompany Distribution Transactions” shall have the meaning provided in Section
5.09(b) of the Original Credit Agreement.




          “Intercompany Note” shall mean a promissory note evidencing Intercompany Loans, duly
executed and delivered substantially in the form of Exhibit N (or such other form as shall
be satisfactory to the Administrative Agent in its sole discretion), with blanks completed in
conformity herewith.




          “Intercompany Scheduled Existing Indebtedness” shall have the meaning provided in
Section 8.20.




          “Intercompany Subordination Agreement” shall mean the Intercompany Subordination
Agreement, dated as of April ___, 2006, made by Holdings and various of its Subsidiaries party
thereto in favor of the Administrative Agent, as the same may be amended, restated, modified and/or
supplemented from time to time in accordance with the terms thereof. A copy of the Intercompany
Subordination Agreement as in effect on the Effective Date is attached hereto as Exhibit H.




          “Intercreditor Agreement” shall mean an amended and restated intercreditor agreement
substantially in the form of Exhibit B to Amendment 1, by and among each Credit Party, the
Collateral Agent, the Term Collateral Agent and the collateral agent for any Permitted Refinancing
Senior Notes that are secured by a Lien on any Collateral, as the same may be amended, modified,
restated and/or supplemented from time to time; provided, that prior to the effectiveness of such
amended and restated intercreditor agreement, “Intercreditor Agreement” shall have the meaning set
forth in this Agreement prior to giving effect to this Amendment 1.




          “Interest Determination Date” shall mean, with respect to any Eurodollar Loan, the
second Business Day prior to the commencement of any Interest Period relating to such Eurodollar
Loan.




          “Interest Period” shall have the meaning provided in Section 2.09.




          “Interest Rate Protection Agreement” shall mean any interest rate swap agreement,
interest rate cap agreement, interest collar agreement, interest rate hedging agreement or other
similar agreement or arrangement.




          “Intermediate Holdco” shall have the meaning provided in the first paragraph of this
Agreement.




          “Intermediate Holdco Collateral” shall have the meaning provided in the Pledge
Agreement.




          “Intermediate Holdco Credit Agreement” shall mean that certain Second Lien Senior
Credit Agreement, dated as of July 22, 2004, among Intermediate Holdco, Corporate Holdco, the
Lenders from time to time party thereto, Deutsche Bank AG New York branch, as





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Agent (as defined therein) and Deutsche Bank Securities Inc., as Arranger (as defined therein), as the same may be
amended, modified or supplemented from time to time in accordance with the terms hereof and
thereof.




          “Intermediate Holdco Credit Documents” shall mean the “Credit Documents” as defined in
the Intermediate Holdco Credit Agreement, as the same may be amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof.




          “Intermediate Holdco Indebtedness” shall mean any Indebtedness of Intermediate Holdco
and Corporate Holdco (as co-issuers) pursuant to the Intermediate Holdco Credit Documents.




          “Intermediate Holdco Irrevocable Prepayment Notice” shall have the meaning provided in
Section 6.07.




          “Intermediate Holdco Paying Agent” shall have the meaning provided in Section 6.07.




          “Intermediate Holdco Prepayment Consummation” shall have the meaning provided in
Section 9.20.




          “Intermediate Holdco Prepayment Funds” shall have the meaning provided in Section
6.07.




          “Intermediate Holdco Senior Notes Prepayment Date” shall have the meaning provided in
Section 6.07.




          “Intermediate Holdco Senior Notes Refinancing” shall have the meaning provided in
Section 6.07.




          “Inventory” shall mean “inventory” (as such term is defined in Article 9 of
the UCC).




          “Investment Property” shall mean “investment property” (as such term is
defined in Article 9 of the UCC), and any and all supporting obligations in respect thereof.




          “Investments” shall have the meaning provided in Section 10.05.




          “Issuing Lender” shall mean (i) each of DBNY (except as otherwise provided in Section
12.09) and any other Lender reasonably acceptable to the Administrative Agent which agrees to issue
Letters of Credit hereunder. Any Issuing Lender may, in its discretion, arrange for one or more
Letters of Credit to be issued by one or more Affiliates of such Issuing Lender (and such Affiliate
shall be deemed to be an “Issuing Lender” for all purposes of the Credit Documents) and (ii) with
respect to the Existing Letters of Credit, the Lender designated as the Issuer thereof on Schedule
XIX shall be the Issuing Lender thereof.




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          “Landlord Personal Property Collateral Access Agreement” shall mean a Landlord Waiver
and Consent Agreement substantially in the form of Exhibit S, with such amendments,
modifications or supplements as may be approved by Collateral Agent.




          “L/C Supportable Obligations” shall mean (i) obligations of the Borrower or any of its
Subsidiaries with respect to insurance obligations and workers compensation, surety bonds and other
similar statutory obligations and (ii) such other obligations of the Borrower or any of its
Subsidiaries as are reasonably acceptable to the Administrative Agent and the respective Issuing
Lender and otherwise permitted to exist pursuant to the terms of this Agreement.




          “Lead Arranger” shall mean Deutsche Bank Securities Inc., in its capacity as Lead
Arranger, and any successor thereto.




          “Leaseholds” of any Person shall mean all the right, title and interest of such Person
as lessee or licensee in, to and under leases or licenses of land, improvements and/or fixtures.




          “Leasehold Property” shall mean each Real Property leased by the Borrower or any of
its Subsidiaries and for which Landlord Personal Property Collateral Access Agreements shall be
required pursuant to this Agreement.




          “Lender” shall mean each financial institution listed on Schedule I, as well as any
Person that becomes a “Lender” hereunder pursuant to Section 2.13 or 13.04(b).




          “Lender Default” shall mean (i) the wrongful refusal (which has not been retracted) or
the failure of a Lender to make available its portion of any Borrowing (including any Mandatory
Borrowing) or to fund its portion of any unreimbursed payment under Section 3.04(c) or (ii) a
Lender having notified in writing the Borrower and/or the Administrative Agent that such Lender
does not intend to comply with its obligations under Section 2.01(a), 2.01(b), 2.01(c) or 3.




          “Letter of Credit” shall have the meaning provided in Section 3.01(a).




          “Letter of Credit Fee” shall have the meaning provided in Section 4.01(b).




          “Letter of Credit Outstandings” shall mean, at any time, the sum of (i) the aggregate
Stated Amount of all outstanding Letters of Credit at such time which have not been terminated at
such time and (ii) the aggregate amount of all Unpaid Drawings in respect of all Letters of Credit
at such time.




          “Letter of Credit Request” shall have the meaning provided in Section 3.03(a).




          “Lien” shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority or other security
agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or
other title retention agreement, any financing or similar statement or notice filed under the





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UCC or any other similar recording or notice statute, and any lease having substantially the same
effect as any of the foregoing).




          “Loan” shall mean each Revolving Loan and each Swingline Loan.




          “Management Agreements” shall have the meaning provided in Section 6.05.




          “Mandatory Borrowing” shall have the meaning provided in Section 2.01(c).




          “Mandatory Cost” shall mean, in the case of a Euro Denominated Loans or Sterling
Denominated Loans, the cost imputed to each Lender of compliance with any reserve asset
requirements of the European Central Bank.




          “Margin Regulations” shall mean, collectively, Regulation T, Regulation U and
Regulation X.




          “Margin Stock” shall have the meaning provided in Regulation U.




          “Material Adverse Effect” shall mean (i) a material adverse effect on the business,
properties, assets, nature of assets, operations, liabilities, condition (financial or otherwise)
or prospects of (A) Holdings and its Subsidiaries taken as a whole or (B) the Borrower and its
Subsidiaries taken as a whole, or (ii) a material adverse effect (x) on the rights or remedies of
the Lenders or any Agent hereunder or under any other Credit Document or (y) on the ability of any
Credit Party to perform its obligations to the Lenders or any Agent hereunder or under any other
Credit Document.




          “Material Foreign Subsidiary” shall mean, at any time, any Foreign Subsidiary of
Holdings the net book value of the assets of which equals or exceeds $5,000,000 at such time;
provided that for purposes of (and only of) Section 9.01(j), the term “Material Foreign
Subsidiary” shall mean, at any time, any Foreign Subsidiary of Holdings the net book value of the
assets of which equals or exceeds $10,000,000 at such time.




          “Material Governmental Investigation” shall mean, at any time, any material
governmental investigation in a country in which the aggregate net book value of the assets
owned by Holdings and its Subsidiaries in such country (determined as of the last day of the
Fiscal Quarter then last ended) exceeds $25,000,000.




          “Maturity Date” shall mean, with respect to the relevant Tranche of Loans, the
Revolving Loan Maturity Date or the Swingline Expiry Date, as the case may be.




          “Maximum Euro Denominated Obligations Amount” shall mean $75,000,000.




          “Maximum Incremental Commitment Amount” shall mean $50,000,000.




          “Maximum Permitted Consideration” shall mean, with respect to any Permitted
Acquisition, the sum (without duplication) of (i) the fair market value of the Holdings Common
Stock (based on the average closing trading price of the Holdings Common Stock for the 20





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trading days immediately prior to the date of such Permitted Acquisition on the stock exchange on which
Holdings Common Stock is listed or, if Holdings Common Stock is not so listed, the good faith
determination of the senior management of Holdings) issued (or to be issued) as consideration in
connection with such Permitted Acquisition (including, without limitation, Holdings Common Stock
which may be required to be issued as earnout consideration upon the achievement of certain future
performance goals of the respective Acquired Entity or Business), (ii) the aggregate amount of all
cash paid (or to be paid) by Holdings or any of its Subsidiaries in connection with such Permitted
Acquisition (including, without limitation, payments of fees and costs and expenses in connection
therewith) and all contingent cash purchase price or other earnout obligations of Holdings and its
Subsidiaries incurred in connection therewith (as determined in good faith by Holdings), (iii) the
aggregate principal amount of all Indebtedness assumed, incurred and/or issued in connection with
such Permitted Acquisition to the extent permitted by Section 10.04 and (iv) the fair market value
(determined in good faith by senior management of Holdings) of all other consideration payable in
connection with such Permitted Acquisition.




          “Maximum Sterling Denominated Obligations Amount” shall mean $75,000,000.




          “Maximum Swingline Amount” shall mean $50,000,000.




          “Minimum Availability Amount” shall mean, at any time, the greater of (x) $35,000,000
and (y) 10% of the Total Commitment at such time.




          “Minimum Borrowing Amount” shall mean (i) for Revolving Loans, $5,000,000, and (ii)
for Swingline Loans, $1,000,000.




          “Moody’s” shall mean Moody’s Investors Service, Inc.




          “Mortgage” shall mean a mortgage, leasehold mortgage, deed of trust, leasehold deed of
trust, deed to secure debt, leasehold deed to secure debt or similar security instrument.




          “Mortgage Policy” shall mean a Lender’s title insurance policy (Form 1992).




          “Mortgaged Property” shall mean any Real Property owned or leased by any Credit Party
which is encumbered (or required to be encumbered) by a Mortgage pursuant to the terms hereof.




          “Multiemployer Plan” shall mean (i) any plan, as defined in Section 4001(a)(3) of
ERISA, which is maintained or contributed to (or to which there is an obligation to contribute to)
by Holdings or a Subsidiary of Holdings or an ERISA Affiliate and that is subject to Title IV of
ERISA, and (ii) each such plan for the five year period immediately following the latest date on
which Holdings, a Subsidiary of Holdings or an ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan.




          “NAIC” shall mean the National Association of Insurance Commissioners.




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          “Negotiable Collateral” shall mean letters of credit, letter of credit rights,
instruments, promissory notes, drafts, documents, and chattel paper (including electronic chattel
paper and tangible chattel paper), and any and all supporting obligations in respect thereof.




          “Net Cash Proceeds” shall mean for any event requiring a prepayment of the Loans
pursuant to Section 5.02, the gross cash proceeds (including any cash received by way of deferred
payment pursuant to a promissory note, receivable or otherwise, but only as and when received)
received from such event, net of reasonable transaction costs (including, as applicable, any
underwriting, brokerage or other customary commissions and reasonable legal, advisory and other
fees and expenses associated therewith) received from any such event.




          “Net Orderly Liquidation Value” shall mean (a) the “net orderly liquidation value”
determined by an unaffiliated valuation company acceptable to Administrative Agent after
performance of an inventory valuation to be done at Administrative Agent’s request and the
Borrower’s expense, less the amount estimated by such valuation company for marshalling,
reconditioning, carrying, and sales expenses designated to maximize the resale value of such
Inventory and assuming that the time required to dispose of such Inventory is customary with
respect to such Inventory; or (b) if no such inventory valuation has been requested by
Administrative Agent, the value customarily attributed to Inventory in the appraisal industry for
Inventory of similar quality and quantity, and similarly dispersed (under similar and relevant
circumstances under standard asset-based lending procedures), at the time of the valuation, less
the amount customarily estimated in the appraisal industry at the time of any determination for
marshalling, recondition, carrying, and sales expenses designed to maximize the resale value of
such Inventory and assuming that the time required to dispose of such Inventory is customary with
respect to such Inventory.




          “Net Sale Proceeds” shall mean for any sale or other disposition of assets, the gross
cash proceeds (including any cash received by way of deferred payment pursuant to a promissory
note, receivable or otherwise, but only as and when received) received from such sale or other
disposition of assets, net of (i) reasonable transaction costs (including, without limitation, any
underwriting, brokerage or other customary selling commissions, reasonable legal, advisory and
other fees and expenses (including title and recording expenses), associated therewith and sales,
VAT and transfer taxes arising therefrom), (ii) payments of unassumed liabilities relating to the
assets sold or otherwise disposed of at the time of, or within 30 days
after, the date of such sale or other disposition, (iii) the amount of such gross cash
proceeds required to be used to permanently repay any Indebtedness (other than Indebtedness of the
Lenders pursuant to this Agreement) which is secured by the respective assets which were sold or
otherwise disposed of, and (iv) the estimated net marginal increase in income taxes which will be
payable by Holdings’ consolidated group or any Subsidiary of Holdings with respect to the Fiscal
Year in which the sale or other disposition occurs as a result of such sale or other disposition;
provided, however, that such gross proceeds shall not include any portion of such
gross cash proceeds which Holdings determines in good faith should be reserved for post-closing
adjustments (to the extent Holdings delivers to the Lenders a certificate signed by its chief
financial officer or treasurer, controller or chief accounting officer as to such determination),
it being understood and agreed that on the day that all such post-closing adjustments have been
determined (which shall not be later than six months following the date of the respective asset





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sale), the amount (if any)
by which the reserved amount in respect of such sale or disposition exceeds the actual post-closing
adjustments payable by Holdings or any of its Subsidiaries shall constitute Net Sale Proceeds on
such date received by Holdings and/or any of its Subsidiaries from such sale or other disposition.




          “Non-Defaulting Lender” shall mean and include each Lender, other than a Defaulting
Lender.




          “Non-Dollar Currencies” shall mean and include Euros and Sterling.




          “Non-Dollar Denominated Loans” shall mean and include Euro Denominated Loans and
Sterling Denominated Loans.




          “Non-Guarantor Subsidiaries” shall mean (i) on the Effective Date, each Subsidiary of
Holdings listed on Part A of Schedule XIII and (ii) after the Effective Date, any Subsidiary of the
Borrower that is not at such time a Subsidiary Guarantor.




          “Non-Qualified Jurisdiction” at any time shall mean each jurisdiction that is not at
such time a Qualified Jurisdiction.




          “Non-U.S. Dole Group” shall mean the Consolidated Subsidiaries of the Borrower which
are not members of the U.S. Dole Group.




          “Non-Wholly Owned Subsidiary” shall mean, as to any Person, each Subsidiary of such
Person which is not a Wholly-Owned Subsidiary of such Person.




          “Note” shall mean each Revolving Note and the Swingline Note.




          “Notice of Borrowing” shall have the meaning provided in Section 2.03(a).




          “Notice of Conversion/Continuation” shall have the meaning provided in Section 2.06.




          “Notice Office” shall mean the office of the Administrative Agent located at 60 Wall
Street, New York, New York 10005, or such other office or person as the Administrative Agent may
hereafter designate in writing as such to the other parties hereto.




          “Obligations” shall mean all amounts owing to the Administrative Agent, the Collateral
Agent, any Issuing Lender, the Swingline Lender or any Lender pursuant to the terms of this
Agreement or any other Credit Document.




          “Original Credit Agreement” shall have the meaning provided in the Existing Credit
Agreement.




          “Original Loans” shall have the meaning provided in the Existing Credit Agreement.




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          “Original Revolving Loan” shall have the meaning provided in the Existing Credit
Agreement.




          “Original Swingline Loan” shall have the meaning provided in the Existing Credit
Agreement.




          “Other Hedging Agreements” shall mean any foreign exchange contracts, currency swap
agreements, commodity agreements or other similar arrangements, or arrangements designed to protect
against fluctuations in currency values or commodity prices.




          “Overnight Euro Rate” on any date shall mean the offered quotation to first-class
banks in the Euro-Zone interbank market by the Issuing Lender for Euro overnight deposits of
amounts in immediately available funds comparable to the outstanding principal amount of any Unpaid
Drawings denominated in Euros as of 11:00 A.M. (Brussels time) on such date; provided, that
in the event the Administrative Agent has made any determination pursuant to Section 2.10(a)(i) in
respect of Unpaid Drawings denominated in Euros, or in the circumstances described in clause (i) to
the proviso to Section 2.10(b) in respect of Unpaid Drawings denominated in Euros, the Overnight
Euro Rate determined pursuant to this definition shall instead be the rate determined by the
Issuing Lender as the all-in-cost of funds for the Issuing Lender to fund such Unpaid Drawing.




          “PACA Reserves” shall mean Reserves established by the Administrative Agent in its
Permitted Discretion in respect of Inventory subject to the provisions and regulations of the
Perishable Agriculture Commodities Act of 1930 (7 U.S.C. 499a-499t).




          “Parent Business Condition” shall mean, for any quarterly accounting period or Fiscal
Year, (A) Holdings having at all times during such period (i) owned no significant assets (other
than (w) the proceeds of the Wellbeing Project Financing, (x) the Equity Interests of Intermediate
Holdco, (y) Intercompany Notes evidencing intercompany loans permitted to be made by it pursuant to
Section 10.05 and (z) the Equity Interests of the Unrestricted Wellbeing Joint Ventures, Westlake
Wellbeing Company LLC and The California Wellbeing Institute, LLC) and (ii) had no liabilities or
Indebtedness (other than those liabilities and Indebtedness permitted by Section 10.01(b)) and
(iii) otherwise complied with the requirements of Section 10.01(b), (B) Intermediate Holdco having
at all times during such period (i) owned no significant assets (other than the capital stock of
the Borrower and Corporate Holdco, Intercompany Notes evidencing intercompany loans permitted to be
made by it pursuant to Section 10.05) and had no liabilities or Indebtedness (other than those
liabilities and Indebtedness permitted by Section 10.01(j)) and (ii) otherwise complied with the
requirements of Section 10.01(j) and (C) Corporate Holdco having at all times during such period
(i) owned no significant assets and had no liabilities or Indebtedness (other than those
liabilities and Indebtedness permitted by Section 10.01(k)) and (ii) otherwise complied with the
requirements of Section 10.01(k).




          “Participant” shall have the meaning provided in Section 3.04(a).




          “Payment Office” shall mean the office of the Administrative Agent located at 60 Wall
Street, New York, New York 10005 or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.




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          “PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to
Section 4002 of ERISA, or any successor thereto.




          “Permitted Acquired Debt” shall have the meaning set forth in Section 10.04(b)(vi).




          “Permitted Acquisition” shall mean the acquisition by the Borrower or any of its
Wholly-Owned Subsidiaries of assets constituting a business, division or product line of any
Person, not already a Subsidiary of the Borrower or any of its Wholly-Owned Subsidiaries, or of
100% of the capital stock or other Equity Interests of any such Person, which Person shall, as a
result of such acquisition, become a Wholly-Owned Subsidiary of the Borrower or such Wholly-Owned
Subsidiary, provided that (A) the consideration paid by the Borrower or such Wholly-Owned
Subsidiary consists solely of cash (including proceeds of Revolving Loans), the issuance of
Holdings Common Stock, the issuance of Qualified Preferred Stock, the incurrence of Indebtedness
otherwise permitted pursuant to Section 10.04 and the assumption/acquisition of any Permitted
Acquired Debt relating to such business, division, product line or Person which is permitted to
remain outstanding in accordance with the requirements of Section 10.04, (B) in the case of the
acquisition of 100% of the capital stock or other Equity Interests of any Acquired Entity or
Business, such Acquired Entity or Business shall own no capital stock or other Equity Interests of
any other Person unless either (x) the Acquired Entity or Business owns 100% of the
capital stock or other Equity Interests of such other Person or (y) if the Acquired Entity or
Business owns capital stock or Equity Interests in any other Person which is a Non-Wholly Owned
Subsidiary of the Acquired Entity or Business, (1) the Acquired Entity or Business shall not have
been created or established in contemplation of, or for purposes of, the respective Permitted
Acquisition, (2) such Non-Wholly Owned Subsidiary of the Acquired Entity or Business shall have
been a Non-Wholly Owned Subsidiary of the Acquired Entity or Business prior to the date of the
respective Permitted Acquisition and not created or established in contemplation thereof and (3)
the Acquired Entity or Business and/or its Wholly-Owned Subsidiaries own at least 80% of the total
value of all the assets owned by such Acquired Entity or Business and its subsidiaries (for
purposes of such determination, excluding the value of the Equity Interests of Non-Wholly Owned
Subsidiaries held by such Acquired Entity or Business and its Wholly-Owned Subsidiaries), (C) the
Acquired Entity or Business shall be a Permitted Business and (D) all applicable requirements of
Sections 9.11, 9.14 and 10.02 applicable to Permitted Acquisitions are satisfied. Notwithstanding
anything to the contrary contained in the immediately preceding sentence, an acquisition which does
not otherwise meet the requirements set forth above in the definition of “Permitted Acquisition”
shall constitute a Permitted Acquisition if, and to the extent, the Required Lenders agree in
writing that such acquisition shall constitute a Permitted Acquisition for purposes of this
Agreement.




          “Permitted Business” shall mean any business which (i) is the same, similar, ancillary
or reasonably related to the business in which Holdings or any of its Subsidiaries is engaged on
the Effective Date or (ii) is conducted by an Acquired Entity or Business acquired pursuant to a
Permitted Acquisition and which does not qualify as a “Permitted Business” pursuant to preceding
clause (i), so long as (x) such business represents an immaterial portion of the businesses
acquired pursuant to such Permitted Acquisition and (y) such business is sold or



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otherwise disposed
of as soon as reasonably practicable following the consummation of such Permitted Acquisition (but,
in any event, within one year following such Permitted Acquisition).




          “Permitted Discretion” shall mean the reasonable exercise of Administrative Agent’s
good faith judgment in consideration of any factor which is reasonably likely to (i) adversely
affect the value of any Collateral, the enforceability or priority of the Liens thereon or the
amount that Administrative Agent and Lenders would be likely to receive (after giving consideration
to delays in payment and costs of enforcement) in the liquidation thereof, (ii) suggest that any
collateral report or financial information delivered to Administrative Agent, Collateral Agent or
Lenders by any Person on behalf of the Borrower or any Guarantor is incomplete, inaccurate or
misleading in any material respect, or (iii) materially increase the likelihood that the Lenders
would not receive payment in full in cash for all of the Obligations. In exercising such judgment,
Administrative Agent may consider such factors already included in or tested by the definition of
Eligible Accounts or Eligible Inventory, as well as any of the following: (i) the changes in
collection history and dilution or collectibility with respect to the Accounts; (ii) changes in
demand for, pricing of, or product mix of Inventory; (iii) changes in any concentration of risk
with respect to the Borrower’s and Wholly-Owned Subsidiary Guarantor’s Accounts or Inventory; and
(iv) any other factors that change the credit risk of lending to the Borrower or any Wholly-Owned
Subsidiary Guarantor on the security of the Borrower’s or any Wholly-Owned Subsidiary Guarantor’s
Accounts or Inventory. The burden
of establishing lack of good faith hereunder shall be on the Borrower and its Wholly-Owned
Subsidiary Guarantor.




          “Permitted Encumbrance” shall mean, with respect to any Mortgaged Property, such
exceptions to title as are set forth in the Mortgage Policy delivered with respect thereto, all of
which exceptions must be acceptable to the Administrative Agent in its reasonable discretion.




          “Permitted Holders” shall mean David H. Murdock, a Qualified Trust and any
majority-owned and controlled Affiliate of David H. Murdock or a Qualified Trust.




          “Permitted Indebtedness” shall have the meaning provided in Section 10.04(b).




          “Permitted Installment Note” shall mean a promissory note issued as consideration to
the Borrower or any of its Subsidiaries in connection with a Contemplated Asset Sale, which note
(i) shall be secured by the assets subject to the respective Contemplated Asset Sale and (ii) in
the case of a Contemplated Asset Sale made by a Credit Party, shall be pledged to the Collateral
Agent pursuant to the relevant Security Documents; provided that no such note may be issued
in connection with a Contemplated Asset Sale if the aggregate principal amount of such note, when
added to the aggregate outstanding principal amount of all other Permitted Installment Notes
theretofore issued (without regard to any write-downs or write-offs thereof), would exceed
$35,000,000.




          “Permitted Liens” shall have the meaning provided in Section 10.03.




          “Permitted Refinancing Indebtedness” shall mean any Indebtedness of the Borrower and
its Subsidiaries issued or given in exchange for, or the proceeds of which are used to, extend,
refinance, renew, replace or refund any Scheduled Existing Indebtedness, Permitted



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Acquired Debt or
any Indebtedness issued to so extend, refinance, renew, replace, substitute or refund any such
Indebtedness, so long as (a) such Indebtedness has a weighted average life to maturity greater than
or equal to the weighted average life to maturity of the Indebtedness being extended, refinanced,
renewed, replaced or refunded, (b) such extension, refinancing, renewal, replacement or refunding
does not (i) increase the amount of such Indebtedness outstanding immediately prior to such
extension, refinancing, renewal, replacement or refunding (except to the extent of reasonable fees,
premiums, commissions and expenses actually paid in connection with such extension, refinancing,
renewal, replacement or refunding) or (ii) add guarantors, obligors or security from that which
applied to such Indebtedness being extended, refinanced, renewed, replacement or refunding, (c)
such Indebtedness has the same (or, from the perspective of the Lenders, more favorable)
subordination provisions, if any, as applied to the Indebtedness being extended, renewed,
refinanced, replaced or refunded, and (d) all other terms of such extension, refinancing, renewal,
replacement or refunding (including, without limitation, with respect to the amortization
schedules, redemption provisions, maturities, covenants, defaults and remedies, but excluding
interest rates so long as on market terms at the time of issuance thereof) are not less favorable
in any material respect to the respective borrower than those previously existing with respect to
the Indebtedness being extended, refinanced, renewed, replaced or refunded, provided,
however, that any Intercompany Scheduled Existing Indebtedness (and subsequent extensions,
refinancings, renewals, replacements and refundings thereof as provided above in this definition)
may only be extended, refinanced, renewed, replaced or refunded as
provided above in this definition if the Indebtedness so extended, refinanced, renewed,
replaced or refunded has the same obligors(s) and obligee(s) as the Indebtedness being extended,
refinanced, renewed, replaced or refunded.




          “Permitted Refinancing Senior Notes” shall mean any Indebtedness of the Borrower
evidenced by senior notes issued or given in exchange for, or the proceeds of which are used to,
refinance, renew, replace or refund any Existing Senior Notes, any Permitted Senior Notes or any
Indebtedness issued to so refinance, renew, replace or refund any such Indebtedness, so long as (a)
such Indebtedness has a final maturity no earlier than July 15, 2013 and no required amortization
prior to such date, (b) such Indebtedness does not (i) increase the amount of such Indebtedness
outstanding immediately prior to such refinancing or renewal (except to the extent of reasonable
fees, premiums, commissions and expenses actually paid in connection with such refinancing,
renewal, replacement or refunding) or (ii) add guarantors, obligors or security from that which
applies to the Indebtedness being refinanced, renewed, replaced or refunded (except that up to
$500,000,000 principal amount (or, if greater, the principal amount that would not cause the Senior
Secured Leverage Ratio on such date to exceed 3.75 to 1.0 on a pro forma basis) of Permitted
Refinancing Senior Notes issued or given in exchange for, or the proceeds of which are used to
refinance, renew, replace or refund any of the Existing 2009 Senior Notes and the Existing 2010
Senior Notes may be guaranteed by the Subsidiary Guarantors and may be secured by a Lien on
Collateral of the Borrower and the Subsidiary Guarantors on the basis applicable to Notes
Obligations (as defined in the Intercreditor Agreement) so long as the Intercreditor Agreement
attached as Exhibit B to Amendment 1 has been entered into and the collateral agent for such
Permitted Refinancing Senior Notes is a party thereto on behalf of the holders of such Permitted
Refinancing Senior Notes), (c) the guaranties of such senior notes shall be subject to the same
(or, from the



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perspective of the Lenders, more favorable) subordination provisions as applied to
the guaranties of the Existing 2011 Senior Notes, (d) if the Borrower elects to provide for the
subordination of the obligations of the Borrower under such senior notes to the prior payment in
full of “senior debt” (or, the Indebtedness being refinanced, renewed, replaced or refunded
includes subordination provisions applicable to the Borrower), such senior notes shall be subject
to the same subordination provisions as are applicable to the guaranties of such senior notes
(subject only to appropriate conforming changes), (e) all other terms of such Indebtedness are on
market terms at the time of the issuance as determined in good faith by the Borrower, and (f) the
documentation governing such Indebtedness is in form and substance reasonably satisfactory to the
Administrative Agent, as such Indebtedness is in effect on the date of incurrence thereof and as
the same may be amended, modified and/or supplemented from time to time in accordance with the
terms hereof and thereof.




          “Permitted Refinancing Senior Notes Documents” shall mean any indenture entered into
in connection with any issuance of Permitted Refinancing Senior Notes and each mortgage, security
agreement or other agreement, document or instrument relating to any issuance of Permitted
Refinancing Senior Notes, as the same may be amended, modified and/or supplemented from time to
time in accordance with the terms hereof and thereof.




          “Permitted Senior Notes” shall mean any Indebtedness of the Borrower evidenced by
senior notes 100% of the Net Cash Proceeds of which are promptly applied to finance a
Permitted Acquisition effected in accordance with the requirements of Section 9.14 and the
fees and expenses incurred in connection therewith, so long as (a) such Indebtedness has a final
maturity no earlier than the date occurring 180 days following the Revolving Loan Maturity Date and
no required amortizations prior to such date, (b) such Indebtedness does not add guarantors,
obligors or security from that which applies to the Existing 2011 Senior Notes, (c) the guaranties
of such senior notes shall be subject to the same (or, from the perspective of the Lenders, more
favorable) subordination provisions as applied to the guaranties of the Existing 2011 Senior Notes,
(d) if the Borrower elects to provide for the subordination of the obligations of the Borrower
under such senior notes to the prior payment in full of “senior debt”, such senior notes shall be
subject to the same subordination provisions as are applicable to the guaranties of such senior
notes (subject only to appropriate conforming changes), (e) all other terms of such Indebtedness
(including, without limitation, with respect to amortization, redemption provisions, maturities,
covenants, defaults and remedies (but excluding interest rates so long as on market terms at the
time of issuance thereof)), are not, taken as a whole, less favorable in any material respect to
the Borrower and its Subsidiaries than those previously existing with respect to the Existing 2011
Senior Notes, (f) on the date of issuance of any such Indebtedness, the Borrower and its
Subsidiaries shall have complied with the requirements of Section 9.14 with respect to the
Permitted Acquisition to be financed with the proceeds of such Indebtedness (including the delivery
of the officers’ certificate required by Section 9.14(a)(ix) and (g) the documentation governing
such Indebtedness is in form and substance reasonably satisfactory to the



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Administrative Agent, as
such Indebtedness may be amended, modified and/or supplemented from time to time in accordance with
the terms hereof and thereof.




          “Permitted Senior Notes Documents” shall mean any Permitted Senior Note, any Permitted
Senior Notes Indenture and all other documents executed and delivered with respect to an issuance
of Permitted Senior Notes or a Permitted Senior Notes Indenture, as the same may be amended,
modified and/or supplemented from time to time in accordance with the terms hereof and thereof.




          “Permitted Senior Notes Indenture” shall mean any indenture entered into in connection
with any issuance of Permitted Senior Notes, as the same may be amended, modified and/or
supplemented from time to time in accordance with the terms hereof and thereof.




          “Person” shall mean any individual, partnership, joint venture, firm, corporation,
association, limited liability company, trust or other enterprise or any Governmental Authority.




          “Plan” shall mean any pension plan as defined in Section 3(2) of ERISA (other than a
Multiemployer Plan), which is maintained or contributed to by (or to which there is an obligation
to contribute of) Holdings or a Subsidiary of Holdings or an ERISA Affiliate, and each such plan
for the five year period immediately following the latest date on which Holdings, or a Subsidiary
of Holdings or an ERISA Affiliate maintained, contributed to or had an obligation to contribute to
such plan.




          “Pledgee” shall have the meaning provided in the Pledge Agreement.




          “Pledge Agreement” shall have the meaning provided in Section 6.11.




          “Pledge Agreement Collateral” shall mean all “Collateral” as defined in the Pledge
Agreement.




          “Post-Closing Period” shall have the meaning provided in Section 9.14(a).




          “Preferred Equity”, as applied to the Equity Interests of any Person, shall mean
Equity Interests of such Person (other than common Equity Interests of such Person) of any class or
classes (however designed) that ranks prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of
such Person, to shares of Equity Interests of any other class of such Person.




          “Prime Lending Rate” shall mean the rate which the Administrative Agent announces from
time to time as its prime lending rate, the Prime Lending Rate to change when and as such prime
lending rate changes. The Prime Lending Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer by the Administrative Agent,
which may make commercial loans or other loans at rates of interest at, above or below the Prime
Lending Rate.



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          “Principal Property” shall mean “Principal Property”, as defined in the Existing 2011
Senior Notes Indenture (as in effect (and as each component definition used therein is in effect)
on the Initial Borrowing Date, without giving effect to any termination thereof).




          “Pro Forma Basis” shall mean, in connection with any calculation of the Total Leverage
Ratio, Senior Secured Leverage Ratio or Fixed Charge Coverage Ratio, the calculation of
Consolidated EBITDA as used therein after giving effect on a pro forma basis to any
Permitted Acquisition or Significant Asset Sale then being consummated as well as any other
Permitted Acquisition or Significant Asset Sale consummated after the first day of the relevant
Test Period or Calculation Period, as the case may be, and on or prior to the date of the required
determination of the Total Leverage Ratio, Senior Secured Leverage Ratio and/or Fixed Charge
Coverage Ratio, as the case may be, as if same had occurred on the first day of the respective Test
Period or Calculation Period, as the case may be, taking into account, in the case of any Permitted
Acquisition, factually supportable and identifiable cost savings and expenses which would otherwise
be accounted for as an adjustment pursuant to Article 11 of Regulation S-X under the Securities
Act, as if such cost savings or expenses were realized on the first day of the respective period.




          “Projections” shall mean the projections that are contained in the Confidential
Information Memorandum dated March 23, 2006 and that were prepared by or on behalf of the Borrower
in connection with the Transaction and delivered to the Administrative Agent and the Lenders prior
to the Initial Borrowing Date.




          “Property” of a Person shall mean any and all property, whether real, personal,
tangible, intangible or mixed, of such Person, or other assets owned, leased, or operated by such
Person.




          “Qualified Jurisdictions” shall mean and include the United States, Bermuda and each
other jurisdiction identified on Schedule XVII hereto, in each case including any states,
provinces or other similar local units therein. Furthermore, from time to time after the
Restatement Effective Date, Holdings may request (by written notice to, and following consultation
with, the Administrative Agent) that one or more additional jurisdictions be added to the list of
Qualified Jurisdictions. In such event, such jurisdictions shall be added to (and thereafter form
part of) the list of Qualified Jurisdictions so long as, in each case, the respective jurisdiction
to be added is added as a Qualified Jurisdiction under the Term Credit Agreement.




          “Qualified Non-U.S. Jurisdictions” shall mean and include each Qualified Jurisdiction
other than the United States (and the States thereof).




          “Qualified Obligors” shall mean and include Holdings and each other Credit Party which
is a Wholly-Owned Subsidiary of Holdings, provided that any Qualified Obligor that is (or
was) a Subsidiary of Holdings shall cease to constitute a Qualified Obligor at such time, if any,
as such Subsidiary ceases to be a Wholly-Owned Subsidiary of Holdings.




          “Qualified Preferred Stock” shall mean any Preferred Equity of Holdings, the express
terms of which shall provide that dividends thereon shall not be required to be paid at any time
(and to the extent) that such payment would be prohibited by the terms of this




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Agreement or any
other agreement of Holdings or any of its Subsidiaries relating to outstanding indebtedness and
which, by its terms (or by the terms of any security into which it is convertible or for which it
is exchangeable), or upon the happening of any event (including any change of control event),
cannot mature (excluding any maturity as the result of an optional redemption by the issuer
thereof) and is not mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, and
is not redeemable, or required to be repurchased, at the sole option of the holder thereof
(including, without limitation, upon the occurrence of an change of control event), in whole or in
part, on or prior to 3 months following the maturity date of the Existing 2013 Senior Notes.




          “Qualified Trust” shall mean the David H. Murdock Living Trust, dated May 28, 1986, as
amended, or another trust established by Mr. Murdock to hold and control the capital stock of
Holdings and the remainder of his estate in the event of his death, so long as any such trust
described above (i) is at all times controlled by David H. Murdock or by a majority of experienced
business persons and is not controlled by members of Mr. Murdock’s family and (ii) holds all or
substantially all of the assets of Mr. Murdock.




          “Quarterly Payment Date” shall mean the last Business Day of each March, June,
September and December occurring after the Initial Borrowing Date.




          “Real Property” of any Person shall mean all the right, title and interest of such
Person in and to land, improvements and fixtures, including Leaseholds.




          “Recovery Event” shall mean the receipt by Holdings or any of its Subsidiaries of any
cash insurance proceeds or condemnation awards payable (i) by reason of theft, loss, physical
destruction, damage, taking or any other similar event with respect to any property or assets of
Holdings or any of its Subsidiaries and (ii) under any policy of insurance required to be
maintained under Section 9.03.




          “Refinancing” shall mean the Intermediate Holdco Refinancing and the other refinancing
transactions referred to in Section 6.07.




          “Refinancing Documents” shall mean the documents, instruments and agreements entered
into in connection with the Refinancing.




          “Register” shall have the meaning provided in Section 13.15.




          “Regulation D” shall mean Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a portion thereof
establishing reserve requirements.




          “Regulation T” shall mean Regulation T of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a portion thereof.




          “Regulation U” shall mean Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a portion thereof.




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          “Regulation X” shall mean Regulation X of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a portion thereof.




          “Release” shall mean disposing, discharging, injecting, spilling, pumping, leaking,
leaching, dumping, emitting, escaping, emptying, pouring, seeping, or the like, into or upon any
land or water or air, or otherwise entering into the environment.




          “Relevant Separate Tax Liability” shall have the meaning provided in Section 10.06(v).




          “Rent Reserve” shall mean, a reserve established by the Administrative Agent in
respect of rent payments made by the Borrower or any Wholly-Owned Subsidiary Guarantor for each
location at which Inventory of the Borrower and/or its Subsidiaries is located that is not subject
to a Landlord Personal Property Collateral Access Agreement (as reported to the Administrative
Agent by the Borrower from time to time as requested by the Administrative Agent), as adjusted from
time to time by the Administrative Agent in its Permitted Discretion.




          “Replaced Lender” shall have the meaning provided in Section 2.13.




          “Replacement Lender” shall have the meaning provided in Section 2.13.




          “Reportable Event” shall mean an event described in Section 4043(c) of ERISA with
respect to a Plan that is subject to Title IV of ERISA other than those events as to which the
30-day notice period is waived under subsection .22, .23, .25, .27 or .28 of PBGC Regulation
Section 4043.




          “Required Appraisal” shall have the meaning provided in Section 9.11(i).




          “Required Lenders” shall mean, at any time, Non-Defaulting Lenders the sum of whose
Revolving Loan Commitments at such time (or, after the termination thereof, outstanding Revolving
Loans and RL Percentages of (x) outstanding Swingline Loans at such time and (y) Letter of Credit
Outstandings at such time) represents at least a majority of the Total Commitment in effect at such
time less the Revolving Loan Commitments of all Defaulting Lenders at such time (or, after
the termination thereof, the sum of then total outstanding Revolving Loans of Non-Defaulting
Lenders and the aggregate RL Percentages of all Non-Defaulting Lenders of the total outstanding
Swingline Loans and Letter of Credit Outstandings at such time).




          “Reserves” shall mean (a) reserves reasonably established by Administrative Agent from
time to time against Eligible Inventory pursuant to Section 2.01(d), (b) reserves established by
Administrative Agent from time to time against Eligible Inventory, in the full amount necessary to
cover all shipping and other charges for items shipped by boat, (c) reserves established by
Administrative Agent pursuant to specific terms of Credit Documents other than this Agreement, and
(d) such other reserves against Eligible Accounts or Eligible Inventory of the Borrower or any
Subsidiary Guarantor, that Administrative Agent may, in its Permitted Discretion, establish from
time to time, including, without limitation, (i) reserves established on




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account of any Liens which
may be prior in right to the First Priority Lien of Collateral Agent for the benefit of the ABL
Secured Parties, including, without limitation, any Liens which may be permitted under Section
10.03, (ii) Dilution Reserves (iii) PACA Reserves, (iv) Inbound Freight Reserves and (v) Rent
Reserves.




          “Restricted” shall mean, when referring to cash or Cash Equivalents of Holdings or any
of its Subsidiaries, that such cash or Cash Equivalents (i) appears (or would be required to
appear) as “restricted” on a consolidated balance sheet of Holdings or of any such Subsidiary
(unless such appearance is related to the Credit Documents or Liens created thereunder), (ii) are
subject to any Lien in favor of any Person other than the Collateral Agent for the benefit of the
Secured Creditors or (iii) are not otherwise generally available for use by Holdings or such
Subsidiary.




          “Restricted Subsidiary” of any Person shall mean any Subsidiary (as defined in the
Existing 2011 Senior Notes Indenture as in effect on the Initial Borrowing Date (without giving
effect to any termination thereof)) of such Person other than any Subsidiary (as so defined) of
such Person that is engaged primarily in the management, development and sale or financing of real
property.




          “Retained Excess Cash Flow Amount” shall initially be $0, which amount shall be (A)
increased on each Excess Cash Payment Date so long as any repayment required pursuant to
Section 5.02(f) has been made, by an amount equal to the Adjusted Excess Cash Flow for the
immediately preceding Excess Cash Flow Payment Period multiplied by a percentage equal to 100%
minus the Applicable Prepayment Percentage, and (B) reduced (i) on each Excess Cash
Payment Date where Adjusted Excess Cash Flow for the immediately preceding Excess Cash Flow Payment
Period is a negative number, by such amount, and (ii) at the time any cash is used to redeem,
repurchase and/or otherwise make payments in respect of Existing Senior Notes, Permitted Senior
Notes and/or Permitted Refinancing Senior Notes in reliance on the proviso
appearing in Section 10.09(a)(i)(z), by the amount of the cash so used (it being understood
that the Retained Excess Cash Flow Amount may be reduced to an amount below zero after giving
effect to the reductions enumerated in clause (B) above).




          “Returns” shall have the meaning provided in Section 8.20.




          “Revolving Loan” shall have the meaning provided in Section 2.01(a).




          “Revolving Loan Commitment” shall mean, for each Lender, the amount set forth opposite
such Lender’s name in Schedule I directly below the column entitled “Revolving Loan Commitment,” as
same may be (x) reduced from time to time or terminated pursuant to Sections 4.02, 4.03 and/or 11,
as applicable, (y) increased from time to time pursuant to Section 2.14 or (z) adjusted from time
to time as a result of assignments to or from such Lender pursuant to Section 2.13 or 13.04(b).




          “Revolving Loan Maturity Date” shall mean April 12, 2011.




          “Revolving Note” shall have the meaning provided in Section 2.05(a).




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          “RL Percentage” of any Lender at any time shall mean a fraction (expressed as a
percentage) the numerator of which is the Revolving Loan Commitment of such Lender at such time and
the denominator of which is the Total Commitment at such time, provided that if the RL
Percentage of any Lender is to be determined after the Total Commitment has been terminated, then
the RL Percentages of such Lender shall be determined immediately prior (and without giving effect)
to such termination.




          “S&P” shall mean Standard & Poor’s Ratings Services, a division of McGraw Hill, Inc.




          “Sale-Leaseback Transaction” shall mean the sale and leaseback of the corporate
aircraft named “Global Express” on the Initial Borrowing Date in connection with the Transaction
under, and as defined in, the Original Credit Agreement.




          “Scheduled Existing Indebtedness” shall mean Third Party Scheduled Existing
Indebtedness and Intercompany Scheduled Existing Indebtedness.




          “SEC” shall have the meaning provided in Section 9.01.




          “Second Priority” shall mean, with respect to any Lien purported to be created on any
Collateral pursuant to the Security Documents, that such Lien is prior in right to any other Lien
thereon, other than (x) Liens permitted pursuant to clause (y) of Section 10.03(iii) and (y)
Permitted Liens permitted to be prior to the Liens on the Collateral in accordance with the
definition “First Priority” contained herein; provided that in no event shall any such
Permitted Lien be permitted (on a consensual basis) to be junior and subordinate to any Permitted
Liens as described in clause (x) above and senior in priority to the relevant Liens created
pursuant to the Security Documents.




          “Second-Tier Material Real Property” of any Person, shall mean any fee-owned (or
equivalent) Real Property acquired by such Person after the Initial Borrowing Date with a value
(determined using the initial purchase price paid by such Person for such Real Property) of greater
than $2,500,000 but less than or equal to $10,000,000.




          “Section 5.04(b)(ii) Certificate” shall have the meaning provided in Section
5.04(b)(ii).




          “Secured Creditors” shall have the meaning assigned that term in the respective
Security Documents.




          “Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.




          “Security Agreement” shall have the meaning provided in Section 6.12.




          “Security Agreement Collateral” shall mean all “Collateral” as defined in the Security
Agreement.




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          “Security Document” shall mean and include each of the Intercreditor Agreement, the
Security Agreement, the Pledge Agreement, each Mortgage and, after the execution and delivery
thereof, each Additional Security Document.




          “Senior Secured Leverage Ratio” shall mean, on any date of determination, the ratio of
(i) Consolidated Senior Secured Net Debt on such date to (ii) Consolidated EBITDA for the Test
Period most recently ended on or prior to such date; provided that for all purposes of this
Agreement, Consolidated EBITDA for purposes of the Senior Secured Leverage Ratio shall be
determined on a Pro Forma Basis.




          “Settlement Date” shall have the meaning provided in Section 2.04(b)(i).




          “Shareholder Subordinated Note” shall mean an unsecured junior subordinated note
issued by Holdings and not guaranteed by any Subsidiary of Holdings in the form of Exhibit
O, as the same may be modified, amended or supplemented from time to time pursuant to the terms
hereof and thereof.




          “Shareholders’ Agreements” shall have the meaning provided in Section 6.05.




          “Shell Corporation” shall mean any Person created or established by the Borrower or
any of its Wholly-Owned Subsidiaries, so long as (i) the aggregate amount of assets at any time
held by any such Person does not exceed $10,000 and (ii) the aggregate amount of assets at any time
held by all Shell Corporations at any time in existence does not exceed $100,000, it being
understood that at such time as the assets of any Person which was a “Shell Corporation” exceed
$10,000 or the assets of all Persons which were “Shell Corporations” exceeds $100,000, all such
Persons shall cease to be Shell Corporations for purposes of this definition.




          “Significant Asset Sale” shall mean each Asset Sale which generates Net Sale Proceeds
of at least $10,000,000.




          “Specified Default” shall mean any Default under either of Sections 11.01 or 11.05.




          “Specified Existing Ship Leases” shall mean the leases with respect to the vessels
named “Dole Chile” and “Dole Colombia”, as in effect on the Initial Borrowing Date.




          “Start Date” shall have the meaning provided in the definition of Applicable Margin.




          “Stated Amount” of each Letter of Credit shall mean, at any time, the maximum amount
available to be drawn thereunder (in each case determined without regard to whether any conditions
to drawing could then be met, but after giving effect to all previous drawings made thereunder),
provided that except as such term is used in Section 3.03(c) of the Stated Amount of each
Euro Denominated Letter of Credit and each Sterling Denominated Letter of Credit shall be, on any
date of calculation, the Dollar Equivalent of the maximum amount available to be drawn in Euros or
Sterling, as the case may be, thereunder (determined without regard to




-51-









 







whether any conditions to
drawing could then be met but after giving effect to all previous drawings made thereunder).




          “Sterling” and “£” shall mean freely transferable lawful money of the United
Kingdom (expressed in pounds sterling).




          “Sterling Denominated Letter of Credit” shall mean each Letter of Credit denominated
in Sterling.




          “Sterling Denominated Loan” shall mean each Loan denominated in Sterling.




          “Sterling Denominated Obligations” shall mean the principal aggregate amount of all
Sterling Denominated Loans and the Stated Amount of all Sterling Denominated Letters of Credit.




          “Sterling LIBOR” shall mean shall mean, with respect to each Interest Period
applicable to any Sterling Denominated Loan, the British Bankers Association Interest Settlement
Rate that appears on page 3750 (or other appropriate page if the relevant Primary Alternate
Currency does not appear on such page) of the Dow Jones Telerate Screen (or any successor page) for
deposits in Sterling with maturities comparable to such Interest Period as of 11:00 A.M. (London
time) on the date which is the same day as the commencement of such Interest Period or, if such
rate does not appear on the Dow Jones Telerate Screen (or any successor page), the offered
quotations to prime banks in the London interbank market by the Administrative Agent for deposits
in Sterling of amounts in same day funds comparable to the outstanding principal amount of such
Sterling Denominated Loan with maturities comparable to such Interest Period determined as of 11:00
A.M. (London time) on the date which is two Business Days prior to the commencement of such
Interest Period; provided that in the event the Administrative Agent has made any
determination pursuant to Section 2.10(a)(i) in respect of
Sterling Denominated Loans, or in the circumstances described in clause (i) to the proviso to
Section 2.10(b) in respect of Sterling Loans, Sterling LIBOR determined pursuant to this definition
shall instead be the rate determined by the Administrative Agent as the all-in-cost of funds for
the Administrative Agent to fund the respective Sterling Denominated Loan with maturities
comparable to the Interest Period applicable thereto.




          “Subsidiary” of any Person shall mean and include (i) any corporation more than 50% of
whose stock of any class or classes having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of whether or not at the time stock of
any class or classes of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or indirectly through
one or more Subsidiaries of such Person and (ii) any partnership, association, limited liability
company, joint venture or other entity (other than a corporation) in which such Person directly or
indirectly through one or more Subsidiaries of such Person, has more than a 50% Equity Interest at
the time. Notwithstanding the foregoing (and except for purposes of Sections 8.01, 8.03, 8.04,
8.11, 8.15, 8.16, 8.19, 9.01(f), 9.01(h), 9.04, 9.05, 9.06, 9.07, 9.08, 9.15, 11.03(b), 11.04,
11.05, 11.06, 11.09 and 13.01), an Unrestricted Wellbeing Joint Venture shall be deemed not to be a
Subsidiary of Holdings or any of its other Subsidiaries for purposes of this Agreement.




-52-









 








          “Subsidiary Guarantor” shall mean each Domestic Subsidiary of the Borrower (whether
existing on the Initial Borrowing Date or established, created or acquired after the Initial
Borrowing Date and, in any event, other than the Excluded Domestic Subsidiary), unless and until
such time as the respective Subsidiary is released from all of its obligations under the
Subsidiaries Guaranty in accordance with the terms and provisions thereof.




          “Subsidiaries Guaranty” shall have the meaning provided in Section 6.10.




          “Swingline Expiry Date” shall mean that date which is five Business Days prior to the
Revolving Loan Maturity Date.




          “Swingline Lender” shall mean the Administrative Agent, in its capacity as Swingline
Lender hereunder.




          “Swingline Loan” shall have the meaning provided in Section 2.01(b).




          “Swingline Note” shall have the meaning provided in Section 2.05(a).




          “Synthetic Lease” shall mean a lease transaction under which the parties intend that
(i) the lease will be treated as an “operating lease” by the lessee and (ii) the lessee will be
entitled to various tax and other benefits ordinarily available to owners (as opposed to lessees)
of like property.




          “Tax Allocation Agreements” shall have the meaning provided in Section 6.05.




          “Taxes” shall have the meaning provided in Section 5.04(a).




          “Term Collateral Agent” shall mean the “Collateral Agent” as defined in the Term
Credit Agreement or any collateral agent under any Permitted Refinancing Indebtedness of the Term
Credit Agreement.




          “Term Credit Agreement” shall mean the Credit Agreement, dated as of the date hereof,
by and among Holdings, Intermediate Holdco, the Borrower, the Bermuda Company, various lending
institutions party thereto, DBNY, as Administrative Agent and as Deposit Bank, Banc of America
Securities LLC, as Syndication Agent, the Bank of Nova Scotia, as Documentation Agent and DBSI, as
lead arranger and sole book running manager, as it may be amended, supplemented or otherwise
modified from time to time in accordance with the terms herewith and therewith.




          “Term Credit Documents” shall mean the Credit Documents under (and as defined in) the
Term Credit Agreement.




          “Term Loans” shall mean the Term Loans under (and as defined in) the Term Credit
Agreement, and includes any Permitted Refinancing Indebtedness thereof.




          “Term Pledge Agreement” shall mean the U.S. Pledge Agreement as defined in the Term
Credit Agreement.




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          “Term Secured Parties” shall mean the Secured Creditors as defined in the Term Credit
Agreement, or in any credit agreement or comparable document in respect of a Permitted Refinancing
of the Term Loan.




          “Term Security Documents” shall mean the Security Documents as defined in the Term
Credit Agreement, or in any credit agreement or comparable document in respect of a Permitted
Refinancing of the Term Loan.




          “Test Period” shall mean each period of four consecutive Fiscal Quarters then last
ended, in each case taken as one accounting period.




          “Third Party Location” shall have the meaning provided in the definition of Eligible
Inventory.




          “Third Party Scheduled Existing Indebtedness” shall have the meaning provided in
Section 8.20.




          “TL Priority Collateral” shall have the meaning assigned to such term in the
Intercreditor Agreement.




          “Total Commitment” shall mean, at any time, the sum of the Revolving Loan Commitments
of each of the Lenders at such time.




          “Total Leverage Ratio” shall mean, on any date of determination, the ratio of (i)
Consolidated Net Debt on such date to (ii) Consolidated EBITDA for the Test Period most recently
ended on or prior to such date; provided that for all purposes of this Agreement,
Consolidated EBITDA for purposes of the Total Leverage Ratio shall be determined on a
Pro Forma Basis.




          “Total Unutilized Revolving Loan Commitment” shall mean, at any time, an amount equal
to the remainder of (x) the Total Commitment in effect at such time less (y) the sum of (i)
the aggregate principal amount of all Revolving Loans and Swingline Loans outstanding at such time
plus (ii) the aggregate amount of all Letter of Credit Outstandings at such time.




          “Tranche” shall mean the respective facility and commitments utilized in making Loans
hereunder, with there being two Tranches, i.e., Revolving Loans and Swingline Loans.




          “Transaction” shall mean, collectively, (i) the amendment and restatement of the
Original Credit Agreement in the form of the Term Credit Agreement as provided herein, (ii) the
entering into of the Term Credit Documents and the initial borrowing thereunder, (iii) the
occurrence of the Effective Date and the Credit Events occurring on such date, (iv) the
consummation of the Refinancing, and (v) the payment of fees and expenses in connection with the
foregoing.




          “Type” shall mean the type of Loan determined with regard to the interest option
applicable thereto, i.e., whether a Base Rate Loan or a Euro Rate Loan.




-54-









 








          “UCC” shall mean the Uniform Commercial Code as from time to time in effect in the
relevant jurisdiction.




          “Unfunded Current Liability” shall mean the amount, if any, by which the actuarial
present value of accumulated benefits of any Plan subject to Title IV of ERISA as of the close of
its most recent plan year, determined using actuarial assumptions at such time consistent with
those prescribed by Financial Account Standards No. 87, exceeds the fair market value of the assets
allocable to such liabilities.




          “United States” and “U.S.” shall each mean the United States of America.




          “Unpaid Drawing” shall have the meaning provided in Section 3.05(a).




          “Unrestricted” shall mean, when referring to cash or Cash Equivalents of Holdings or
any of its Subsidiaries, that such cash or Cash Equivalents are not Restricted.




          “Unrestricted Subsidiary” of any Person shall mean (i) at any time prior to the
repayment in full of both the Existing 2009 Senior Notes and the Existing 2013 Senior Notes, any
Subsidiary of such Person that is not a Restricted Subsidiary and (ii) thereafter, any Subsidiary
of such Person.




          “Unrestricted Wellbeing Joint Venture” shall mean Westlake Wellbeing Company,
Wellbeing IP Holdco and Wellbeing Edco.




          “Unutilized Revolving Loan Commitment” shall mean, with respect to any Lender at any
time, such Lender’s Revolving Loan Commitment at such time less the sum of (i) the
aggregate outstanding principal amount of all Revolving Loans, (taking the Dollar Equivalent of any
such Loans denominated in Euros or Sterling) made by such Lender at such time and (ii) such
Lender’s RL Percentage of the Letter of Credit Outstandings at such time.




          “U.S. Dole Group” shall mean the Borrower and the Subsidiary Guarantors.




          “U.S. Dollars,” “Dollars” and the sign “$” shall each mean freely
transferable lawful money of the United States of America.




          “U.S. GAAP” shall mean generally accepted accounting principles in the United States
of America as in effect from time to time; provided that determinations in accordance with
U.S. GAAP for purposes of Sections 5.02, 9.14 and 10, including defined terms as used therein, and
for all purposes of determining the Senior Secured Leverage Ratio, the Total Leverage Ratio and the
Fixed Charge Coverage Ratio, are subject (to the extent provided therein) to Section 13.07(a).




          “U.S. Mortgaged Property” shall mean each Real Property located in the United States
or any State or territory thereof with respect to which a Mortgage is required to be delivered
pursuant to the terms of this Agreement.




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          “Wellbeing Edco” shall mean a Delaware corporation or limited liability company formed
(or to be formed) by Holdings to promote nutritional and wellbeing education.




          “Wellbeing IP Holdco” shall mean a Delaware corporation or limited liability company
formed (or to be formed) by Holdings to hold the intellectual property rights related to the
Wellbeing Project.




          “Wellbeing Project” shall mean the start-up, construction and operation by Westlake
Wellbeing Company of a well-being center/hotel/spa/conference center/studio on the Westlake Village
Property.




          “Wellbeing Project Financing” shall mean Indebtedness incurred by Holdings, so long as
(a) the proceeds thereof are used (or, in the case of sub-clause (iv) below, deemed used) solely to
(i) finance the construction, start-up and operational deficits of the Wellbeing Project (including
any “cost overruns” on the construction of the Wellbeing Project), (ii) make an Investment in,
and/or repay an intercompany loan owing to, Intermediate Holdco, the proceeds of which are, in
turn, used by Intermediate Holdco to make an Investment in, and/or repay an intercompany loan owing
to the Borrower, (iii) “finance” customary expenses which are (x) incurred by lenders providing
such Indebtedness and treated as “protective advances” under the documentation governing such
Indebtedness (e.g., advances for the payment of real estate taxes, insurance premiums,
ground rent and maintenance and repair costs) and (y) deemed added as additional Indebtedness of
Holdings under such documentation (it being understood, however, that Indebtedness incurred by
Holdings under this clause (iii) may be in the form of a guarantee by Holdings of additional
Indebtedness incurred by the Unrestricted Wellbeing Joint Venture for the purposes described above
in this clause (iii) rather than in the form of direct incurrence by
Holdings), (iv) pay accrued but unpaid interest on the principal of Indebtedness described in
this definition, together with reasonable transaction fees incurred in connection with the
incurrence thereof and/or (v) extend, renew and/or refinance any Indebtedness theretofore incurred
pursuant to this definition, (b) such Indebtedness does not require any scheduled principal
repayments prior to the final stated maturity thereof, (c) such Indebtedness does not require any
mandatory repayments prior to the final stated maturity thereof other than in connection with (x) a
“change of control” (which “change of control” shall not include triggers any tighter than those
contained in the definition of “Change of Control” in this Agreement) or (y) issuances of equity
by, or capital contributions to, Holdings, (d) such Indebtedness does not provide for guaranties or
security from, or require any representation, warranty, event of default or covenant to be
applicable to, any Subsidiary of Holdings, (e) such Indebtedness provides for an “interest reserve”
covering all interest which will accrue on such Indebtedness over the term thereof, which interest
may be in the form of a committed but initially unfunded portion of such Indebtedness specifically
reserved for the payment of accrued but unpaid interest on such Indebtedness, (f) such Indebtedness
expressly permits the pledge of the Equity Interests of the Unrestricted Wellbeing Joint Ventures
pursuant to the Pledge Agreement, (g) in the case of any Indebtedness incurred to extend, renew
and/or refinance any Indebtedness theretofore incurred in reliance on this definition, the
requirements of clauses (b) through (f), inclusive, above and clause (h) below are satisfied at the
time of the incurrence thereof and (h) all other terms of such Indebtedness (including, without
limitation, with respect to prepayment provisions, covenants and defaults) are reasonably
acceptable to the Administrative Agent, as such Indebtedness may




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be amended, modified,
supplemented, extended, renewed and/or refinanced from time to time in accordance with the terms
hereof and thereof. The incurrence of the Wellbeing Project Financing shall be deemed to be a
representation and warranty by Holdings that all conditions thereto have been satisfied in all
material respects and that same is permitted in accordance with the terms of this Agreement, which
representation and warranty shall be deemed to be a representation and warranty for all purposes
hereunder, including, without limitation, Sections 7 and 11.




          “Wellbeing Project Financing Debt Cap Amount” shall mean, at any time, $150,000,000
(as such amount may be reduced by any repayments of principal of the Wellbeing Project Financing,
except to the extent such repayment is made in connection with a refinancing of such Wellbeing
Project Financing consummated in accordance with the definition of “Wellbeing Project Financing”);
provided, however, that (i) the “Wellbeing Project Financing Debt Cap Amount” may
exceed the amount otherwise set forth above at any time, if (but only if) any excess over such
amount is (I) used by Holdings to finance cost overruns and/or operational deficits of the
Wellbeing Project and/or (II) incurred by Holdings for the purposes described in clause (a)(iii) of
the definition of “Wellbeing Project Financing”, and (ii) any such excess permitted by preceding
clause (i) shall also (but without duplication) be reduced by any repayments of principal of the
Wellbeing Project Financing, except to the extent such repayment is made in connection with a
refinancing of such Wellbeing Project Financing consummated in accordance with the definition of
“Wellbeing Project Financing.”




          “Wellbeing Project Financing Documents” shall mean any indenture, credit agreement or
similar agreement entered into in connection with the incurrence or issuance of the Wellbeing
Project Financing and each other agreement, document or instrument relating to the
incurrence or issuance of the Wellbeing Project Financing, as the same may be amended,
modified, supplemented, extended, renewed and/or refinanced from time to time in accordance with
the terms hereof and thereof.




          “Wellbeing Project Financing Interest Reserve Account” shall mean the deposit account
established in connection with the Wellbeing Project Financing into which cash in amount equal to
the interest reserve requirements for the Wellbeing Project Financing and other proceeds from the
Wellbeing Project Financing will be deposited pending application.




          “Westlake Village Property” shall mean that certain property identified to the
Administrative Agent of twenty (20) acres (more or less) that is adjacent to the parcel on which
the Borrower’s Corporate Headquarters is located in the City of Westlake Village, Ventura County,
California.




          “Westlake Wellbeing Company” shall mean Westlake Wellbeing Properties LLC, a Delaware
limited liability company formed by Holdings to construct and operate the Wellbeing Project and/or
promote nutritional and wellbeing education.




          “Wholly-Owned Domestic Subsidiary” shall mean, as to any Person, any Wholly-Owned
Subsidiary of such Person which is a Domestic Subsidiary.




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          “Wholly-Owned Foreign Subsidiary” shall mean, as to any Person, any Wholly-Owned
Subsidiary of such Person which is a Foreign Subsidiary.




          “Wholly-Owned Subsidiary” shall mean, as to any Person, (i) any corporation 100% of
whose capital stock is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, limited liability company, association, joint
venture or other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such
Person has a 100% equity interest at such time (other than, in the case of a Foreign Subsidiary of
the Borrower with respect to the preceding clauses (i) and (ii), director’s qualifying shares
and/or other nominal amount of shares required to be held by Persons other than the Borrower and
its Subsidiaries under applicable law).




          “Wholly-Owned Subsidiary Guarantor” shall mean each Subsidiary Guarantor which is a
Wholly-Owned Subsidiary.




          SECTION 2. Amount and Terms of Credit.




          2.01. The Commitments. (a) Subject to and upon the terms and conditions set forth
herein, each Lender severally agrees to make, at any time and from time to time on or after the
Initial Borrowing Date and prior to the Revolving Loan Maturity Date, a revolving loan or revolving
loans (each, a “Revolving Loan” and, collectively, the “Revolving Loans”) to the
Borrower, which Revolving Loans (i) shall be denominated in the respective Available Currency
elected by the Borrower, (ii) shall, at the option of Borrower, be incurred and maintained as, and/or converted into, Base
Rate Loans, Eurodollar Loans, Euro Denominated Loans or Sterling Denominated Loans,
provided that except as otherwise specifically provided in Section 2.10(b), all Revolving
Loans comprising the same Borrowing shall at all times be of the same Type, (iii) may be repaid and
reborrowed in accordance with the provisions hereof, (iv) shall not be made (and shall not be
required to be made) by any Lender in any instance where the incurrence thereof (after giving
effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any
amounts theretofore outstanding pursuant to this Agreement) would cause the Aggregate Exposure to
exceed the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) and
(v) in the case of any Borrowing of (A) Euro Denominated Loans shall not be made (and shall not be
required to be made) by any Lender in any instance where the incurrence thereof would cause the
Euro Denominated Obligations to exceed the Maximum Euro Denominated Obligations Amount or (B)
Sterling Denominated Loans shall not be made (and shall not be required to be made) by any Lender
in any instance where the incurrence thereof would cause the Sterling Denominated Obligations to
exceed the Maximum Sterling Denominated Loan Amount.




          (b) Subject to and upon the terms and conditions set forth herein, the Swingline Lender agrees
to make, at any time and from time to time on or after the Initial Borrowing Date and prior to the
Swingline Expiry Date, a revolving loan or revolving loans (each, a “Swingline Loan” and,
collectively, the “Swingline Loans”) to the Borrower, which Swingline Loans (i) shall be
incurred and maintained as Base Rate Loans, (ii) shall be denominated in Dollars, (iii) may be
repaid and reborrowed in accordance with the provisions hereof, (iv) shall not exceed in aggregate
principal amount at any time outstanding, when




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combined with the aggregate principal amount of all
Revolving Loans then outstanding and the aggregate amount of all Letter of Credit Outstandings at
such time, an amount equal to the Total Commitment at such time, (v) shall not be made (and shall
not be required to be made) by any Lender in any instance where the incurrence thereof (after
giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any
amounts theretofore outstanding pursuant to this Agreement) would cause the Aggregate Exposure to
exceed the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) and
(vi) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline
Amount. Notwithstanding anything to the contrary contained in this Section 2.01(b), (i) the
Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default
exists with respect to an Lender unless the Swingline Lender has entered into arrangements
satisfactory to it and the Borrower to eliminate the Swingline Lender’s risk with respect to the
Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline Loans, including by cash
collateralizing such Defaulting Lender’s or Defaulting Lenders’ RL Percentage of the outstanding
Swingline Loans, and (ii) the Swingline Lender shall not make any Swingline Loan after it has
received written notice from the Borrower, any other Credit Party or the Required Lenders stating
that a Default or an Event of Default exists and is continuing until such time as the Swingline
Lender shall have received written notice (A) of rescission of all such notices from the party or
parties originally delivering such notice or notices or (B) of the waiver of such Default or Event
of Default by the Required Lenders.




          (c) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the
Lenders that the Swingline Lender’s outstanding Swingline Loans shall be funded with one or more
Borrowings of Revolving Loans (provided that such notice shall be deemed to have been
automatically given upon the occurrence of a Default or an Event of Default under Section 11.05 or
upon the exercise of any of the remedies provided in the last paragraph of Section 11), in which
case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a
“Mandatory Borrowing”) shall be made on the immediately succeeding Business Day by all
Lenders pro rata based on each such Lender’s RL Percentage (determined before
giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph
of Section 11) and the proceeds thereof shall be applied directly by the Swingline Lender to repay
the Swingline Lender for such outstanding Swingline Loans. Each Lender hereby irrevocably agrees
to make Revolving Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing in the
amount and in the manner specified in the preceding sentence and on the date specified in writing
by the Swingline Lender notwithstanding (i) the amount of the Mandatory Borrowing may not comply
with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any conditions
specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default then
exists, (iv) the date of such Mandatory Borrowing, and (v) the amount of the Borrowing Base or
Total Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be
made on the date otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to the Borrower), then each
Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would
otherwise have occurred, but adjusted for any payments received from the Borrower on or after such
date and prior to such purchase) from the Swingline Lender such participations in the outstanding
Swingline Loans as shall be necessary to cause the Lenders to




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share in such Swingline Loans ratably
based upon their respective RL Percentages (determined before giving effect to any termination of
the Revolving Loan Commitments pursuant to the last paragraph of Section 11), provided that
(x) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender
until the date as of which the respective participation is required to be purchased and, to the
extent attributable to the purchased participation, shall be payable to the participant from and
after such date and (y) at the time any purchase of participations pursuant to this sentence is
actually made, the purchasing Lender shall be required to pay the Swingline Lender interest on the
principal amount of participation purchased for each day from and including the day upon which the
Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such
participation, at the overnight Federal Funds Rate for the first three days and at the interest
rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day
thereafter.




          (d) Notwithstanding anything to the contrary in Section 2.01(a) or elsewhere in this
Agreement, the Administrative Agent shall have the right to establish reserves in such amounts, and
with respect to such matters, as the Administrative Agent in its Permitted Discretion shall deem
necessary or appropriate, against the Borrowing Base, including, without limitation, reserves with
respect to (i) sums that the Borrower is or will be required to pay (such as taxes, assessments,
insurance premiums, or, in the case of leased assets, rents or other amounts payable under such
leases) and have not yet paid (including, without limitation, a Rent Reserve against Eligible
Inventory included in the Borrowing Base) and (ii) amounts owing by the
Borrower or its Subsidiaries to any Person to the extent secured by a Lien on, or trust over,
any of the Collateral, which Lien or trust, in the Permitted Discretion of the Administrative Agent
is capable of ranking senior in priority to or pari passu with one or more of the Liens granted in
the Security Documents (such as Liens or trusts in favor of landlords, warehousemen, carriers,
mechanics, materialmen, laborers, or suppliers, or Liens or trusts for ad valorem, excise, sales,
or other taxes where given priority under applicable law) in and to such item of the Collateral.
In addition to the foregoing, the Administrative Agent shall have the right to have the Borrower’s
and each Wholly-Owned Subsidiary Guarantor’s Inventory reappraised by a qualified appraisal company
selected by the Administrative Agent in accordance with Section 9.01(p) after the Initial Borrowing
Date for the purpose of re-determining the Net Orderly Liquidation Value of the Eligible Inventory,
and, as a result, re-determining the Borrowing Base.




          (e) In the event the Borrower is unable to comply with (i) the Borrowing Base limitations set
forth in Sections 2.01(a) or (ii) the conditions precedent to the making of Revolving Loans or the
issuance of Letters of Credit set forth in Section 7, (x) the Lenders authorize the Administrative
Agent, for the account of the Lenders, to make Revolving Loans to the Borrower, which, in each
case, may only be made as Base Rate Loans (each, an “Agent Advance”) for a period
commencing on the date the Administrative Agent first receives a Notice of Borrowing requesting an
Agent Advance until the earlier of (i) the twentieth Business Day after such date, (ii) the date
the Borrower is again able to comply with the Borrowing Base limitations and the conditions
precedent to the making of Revolving Loans and issuance of Letters of Credit, or obtains an
amendment or waiver with respect thereto or (iii) the date the Required Lenders instruct the
Administrative Agent to cease making Agent Advances (in each case, the “Agent Advance
Period”). The Administrative Agent shall not make any Agent Advance to the extent that at such
time the amount of such Agent Advance, either (I) when




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added to the aggregate outstanding amount of
all other Agent Advances made to the Borrower at such time, would exceed 10% of the Borrowing Base
at such time (based on the Borrowing Base Certificate last delivered) or (II) which are incurred as
Revolving Loans, when added to the Aggregate Exposure as then in effect (immediately prior to the
incurrence of such Agent Advance), would exceed the Total Commitment at such time. It is
understood and agreed that, subject to the requirements set forth above, Agent Advances may be made
by the Administrative Agent in its sole discretion and that the Borrower shall have no right to
require that any Agent Advances be made. Agent Advances will be subject to periodic settlement
with the Lenders pursuant to Section 2.04.




          2.02. Minimum Amount of Each Borrowing. The aggregate principal amount of each
Borrowing of Loans shall not be less than the Minimum Borrowing Amount. More than one
Borrowing may occur on the same date, but at no time shall there be outstanding more than 15
Borrowings of Euro Rate Loans.




          2.03. Notice of Borrowing. (a) Whenever the Borrower desires to incur (x) Eurodollar
Loans hereunder, the Borrower shall give the Administrative Agent at the Notice Office at least
three Business Days’ prior notice of each Eurodollar Loan to be incurred hereunder and (y) Base
Rate Loans hereunder (excluding Swingline Loans and Revolving Loans made pursuant to a Mandatory
Borrowing), the Borrower shall give the Administrative Agent at the Notice Office at least one
Business Day’s prior notice of each Base Rate Loan to be incurred hereunder, provided that
(in each case) any such notice shall be deemed to have been given on a certain day only if given
before 2:00 P.M. (New York City time) on such day. Each such notice (each, a “Notice of
Borrowing”), except as otherwise expressly provided in Section 2.10, shall be irrevocable and
shall be in writing, or by telephone promptly confirmed in writing, in the form of Exhibit
A-1, appropriately completed to specify: (i) the aggregate principal amount of the Loans to be
incurred pursuant to such Borrowing (stated in the relevant currency), (ii) the date of such
Borrowing (which shall be a Business Day), (iii) whether the Loans being incurred pursuant to such
Borrowing are to be initially maintained as Base Rate Loans or, to the extent permitted hereunder,
Euro Rate Loans and, if Euro Rate Loans, the initial Interest Period to be applicable thereto, and
(v) in the case of a Borrowing of Revolving Loans the proceeds of which are to be utilized to
finance, in whole or in part, a Permitted Acquisition (or to pay any fees and expenses incurred in
connection therewith), the amount of the Borrowing Availability after giving effect to such
Borrowing. The Administrative Agent shall promptly give each Lender which is required to make
Loans specified in the respective Notice of Borrowing, notice of such proposed Borrowing, of such
Lender’s proportionate share thereof and of the other matters required by the immediately preceding
sentence to be specified in the Notice of Borrowing.




          (b) (i) Whenever the Borrower desires to incur Swingline Loans hereunder, the Borrower shall
give the Swingline Lender no later than 1:00 P.M. (New York City time) on the date that a Swingline
Loan is to be incurred, written notice or telephonic notice promptly confirmed in writing of each
Swingline Loan to be incurred hereunder. Each such notice shall be irrevocable and specify in each
case (A) the date of Borrowing (which shall be a Business Day), (B) the aggregate principal amount
of the Swingline Loans to be incurred pursuant to such Borrowing, and (C) in the case of a
Borrowing of Swingline Loans the proceeds of which are to be utilized to finance, in whole or in
part, a Permitted Acquisition (or to pay any fees and




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expenses incurred in connection therewith),
the amount of the Borrowing Availability after giving effect to such Borrowing.




          (ii) Mandatory Borrowings shall be made upon the notice specified in Section 2.01(c), with the
Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to the making of the
Mandatory Borrowings as set forth in Section 2.01(c).




          (c) Without in any way limiting the obligation of the Borrower to confirm in writing any
telephonic notice of any Borrowing or prepayment of Loans, the Administrative Agent or the
Swingline Lender, as the case may be, may act without liability upon the basis of telephonic notice
of such Borrowing or prepayment, as the case may be, believed by the Administrative Agent or the
Swingline Lender, as the case may be, in good faith to be from an Authorized Officer of the
Borrower, prior to receipt of written confirmation. In each such case, the Borrower hereby waives
the right to dispute the Administrative Agent’s or the Swingline Lender’s record of the terms of
such telephonic notice of such Borrowing or prepayment of Loans, as the case may be, absent
manifest error.




          2.04. Disbursement of Funds. (a) No later than 1:00 P.M. (New York City time) on the date specified in each Notice of
Borrowing (or (x) in the case of Swingline Loans, no later than 3:00 P.M. (New York City time) on
the date specified pursuant to Section 2.03(b)(i) or (y) in the case of Mandatory Borrowings, no
later than 10:00 A.M. (New York City time) on the date specified in Section 2.01(c)), each Lender
with a Revolving Loan Commitment of the respective Tranche will make available its pro
rata portion (determined in accordance with Section 2.07) of each such Borrowing requested
to be made on such date (or in the case of Swingline Loans, the Swingline Lender will make
available the full amount thereof). All such amounts will be made available in Dollars (in the
case of Dollar Denominated Loans), in Euros (in the case of Euro Denominated Loans) or in Sterling
(in the case of Sterling Denominated Loans) and in immediately available funds at the Payment
Office, and the Administrative Agent will, except in the case of Revolving Loans made pursuant to a
Mandatory Borrowing, make available to the Borrower at the Payment Office the aggregate of the
amounts so made available by the Lenders. Unless the Administrative Agent shall have been notified
by any Lender prior to the date of Borrowing that such Lender does not intend to make available to
the Administrative Agent such Lender’s portion of any Borrowing to be made on such date, the
Administrative Agent may assume that such Lender has made such amount available to the
Administrative Agent on such date of Borrowing and the Administrative Agent may (but shall not be
obligated to), in reliance upon such assumption, make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the Administrative Agent by
such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender. If such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower
and the Borrower shall immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent also shall be entitled to recover on demand from such Lender or the Borrower,
as the case may be, interest on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to the Borrower until the date
such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to
(i) if recovered from such Lender, the




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overnight Federal Funds Rate for the first three days and at
the interest rate otherwise applicable to such Loans for each day thereafter and (ii) if recovered
from the Borrower, the rate of interest applicable to the respective Borrowing, as determined
pursuant to Section 2.08. Nothing in this Section 2.04 shall be deemed to relieve any Lender from
its obligation to make Loans hereunder or to prejudice any rights which the Borrower may have
against any Lender as a result of any failure by such Lender to make Loans hereunder.




          (b) Unless the Required Lenders have instructed the Administrative Agent to the contrary, the
Administrative Agent on behalf of the Lenders may, but shall not be obligated to, make Revolving
Loans to the Borrower that are maintained as Base Rate Loans under Section 2.01 without prior
notice of the proposed Borrowing to the Lenders as follows:





     (i) The amount of each Lender’s RL Percentage of Revolving Loans shall be computed
weekly (or more frequently in the Administrative Agent’s sole discretion) and shall be
adjusted upward or downward on the basis of the amount of outstanding Revolving Loans as of
5:00 P.M. (New York time) on the last Business Day of each week, or such other period
specified by the Administrative Agent (each such date, a “Settlement Date”). The Lenders
shall transfer to the Administrative Agent, or
the Administrative Agent shall transfer to the Lenders such amounts as are necessary so that
(after giving effect to all such transfers) the amount of Revolving Loans made by each
Lender shall be equal to such Lender’s RL Percentage of the aggregate amount of Revolving
Loans outstanding as of such Settlement Date. If a notice from the Administrative Agent of
any such necessary transfer is received by a Lender on or prior to 12:00 Noon (New York
time) on any Business Day, then such Lender shall make transfers described above in
immediately available funds no later than 3:00 P.M. (New York time) on the day such notice
was received; and if such notice is received by a Lender after 12:00 Noon (New York time) on
any Business Day, such Lender shall make such transfers no later than 1:00 P.M. (New York
time) on the next succeeding Business Day. The obligation of each of the Lenders to
transfer such funds shall be irrevocable and unconditional and without recourse to, or
without representation or warranty by, the Administrative Agent. Each of the Administrative
Agent and each Lender agrees and the Lenders agree to mark their respective books and
records on each Settlement Date to show at all times the dollar amount of their respective
RL Percentage of the outstanding Revolving Loans on such date.




     (ii) To the extent that the settlement described in preceding clause (i) shall not yet
have occurred with respect to any particular Settlement Date, upon any repayment of
Revolving Loans by the Borrower prior to such settlement, the Administrative Agent may apply
such amounts repaid directly to the amounts that would otherwise be made available by the
Administrative Agent pursuant to this Section 2.04(b).




     (iii) Because the Administrative Agent on behalf of the Lenders may be advancing and/or
may be repaid Revolving Loans prior to the time when the Lenders will actually advance
and/or be repaid Revolving Loans, interest with respect to Revolving Loans shall be
allocated by the Administrative Agent to each Lender and the Administrative Agent in
accordance with the amount of Revolving Loans actually



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advanced by and repaid to each Lender
and the Administrative Agent and shall accrue from and including the date such Revolving
Loans are so advanced to but excluding the date such Revolving Loans are either repaid by
the Borrower in accordance with the terms of this Agreement or actually settled by the
Administrative Agent or the applicable Lender as described in this Section 2.04(b).



          2.05. Notes. (a) The Borrower’s obligation to pay the principal of, and interest on,
the Loans made by each Lender shall be evidenced in the Register maintained by the Administrative
Agent pursuant to Section 13.15 and shall, if requested by such Lender, also be evidenced (i) in
the case of Revolving Loans, by a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit B-1, with blanks appropriately completed in conformity
herewith (each, a “Revolving Note” and, collectively, the “Revolving Notes”), and
(ii) in the case of Swingline Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-2, with blanks appropriately completed in
conformity herewith (the “Swingline Note”).




          (b) The Revolving Note issued to each Lender shall (i) be executed by the Borrower, (ii) be
payable to the order of such Lender (or an affiliate designated by such Lender) or its registered
assigns and be dated the Initial Borrowing Date (or, if issued thereafter, the date of issuance
thereof), (iii) be in a stated principal amount (expressed in Dollars) equal to the Revolving Loan
Commitment of such Lender on the date of issuance thereof (or, if issued after the termination of
such Revolving Loan Commitment, in an amount equal to the Exposure of the respective Lender),
provided that if, because of fluctuations in exchange rates after the date of issuance
thereof, the Revolving Note of any Lender would not be at least as great as the outstanding
principal amount (taking the Dollar Equivalent of all Euro Denominated Loans and Sterling
Denominated Loans evidenced thereby) of the Revolving Loans made by such Lender at any time
outstanding, the respective Lender may request (and in such case the Borrower shall promptly
execute and deliver) a new Revolving Note in an amount equal to the aggregate principal amount
(taking the Dollar Equivalent of all Euro Denominated Loans and Sterling Denominated Loans
evidenced thereby) of the Revolving Loans of such Lender outstanding on the date of the issuance of
such new Revolving Note, (iv) with respect to each Revolving Loan evidenced thereby, be payable in
the respective Available Currency in which such Revolving Loan was made, (v) mature on the
Revolving Loan Maturity Date, (vi) bear interest as provided in the appropriate clauses of Section
2.08 in respect of the Revolving Loans evidenced thereby from time to time, (vii) be subject to
voluntary prepayment as provided in Section 5.01 and mandatory repayment as provided in Section
5.02 and (viii) be entitled to the benefits of this Agreement and the other Credit Documents.




          (c) The Swingline Note issued to the Swingline Lender shall (i) be executed by the Borrower,
(ii) be payable to the order of the Swingline Lender or its registered assigns and be dated the
Initial Borrowing Date, (iii) be in a stated principal amount (expressed in Dollars) equal to the
Maximum Swingline Amount and be payable in Dollars in the principal amount of the outstanding
Swingline Loans evidenced thereby from time to time, (iv) mature on the Swingline Expiry Date, (v)
bear interest as provided in the appropriate clause of Section 2.08 in respect of the Base Rate
Loans evidenced thereby, (vi) be subject to voluntary prepayment as




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provided in Section 5.01 and
mandatory repayment as provided in Section 5.02 and (vii) be entitled to the benefits of this
Agreement and the other Credit Documents.




          (d) Each Lender will note on its internal records the amount of each Loan made by it and each
payment in respect thereof and prior to any transfer of any of its Notes will endorse on the
reverse side thereof the outstanding principal amount of Loans evidenced thereby. Failure to make
any such notation or any error in such notation shall not affect the Borrower’s obligations in
respect of such Loans.




          (e) Notwithstanding anything to the contrary contained above in this Section 2.05 or elsewhere
in this Agreement, Notes shall only be delivered to Lenders which at any time specifically request
the delivery of such Notes. No failure of any Lender to request or obtain a Note evidencing its
Loans to the Borrower shall affect or in any manner impair the obligations of the Borrower to pay
the Loans (and all related Obligations) incurred by the Borrower which would otherwise be evidenced
thereby in accordance with the requirements of this Agreement, and shall not in any way affect the
security or guaranties therefor provided pursuant to the various Credit Documents. Any Lender
which does not have a Note evidencing its outstanding
Loans shall in no event be required to make the notations otherwise described in preceding
clause (b). At any time when any Lender requests the delivery of a Note to evidence any of its
Loans, the Borrower shall promptly execute and deliver to the respective Lender the requested Note
in the appropriate amount or amounts to evidence such Loans.




          2.06. Conversions. The Borrower shall have the option to convert, on any Business Day
beginning three Business Days following the Initial Borrowing Date, all or a portion equal to at
least the Minimum Borrowing Amount of the outstanding principal amount of Loans (other than
Swingline Loans which may not be converted pursuant to this Section 2.06) made pursuant to one or
more Borrowings of one or more Types of Loans into a Borrowing of another Type of Loan,
provided that, (i) except as otherwise provided in Section 2.10(b), Eurodollar Loans may be
converted into Base Rate Loans only on the last day of an Interest Period applicable to the Loans
being converted and no such partial conversion of Eurodollar Loans shall reduce the outstanding
principal amount of such Eurodollar Loans made pursuant to a single Borrowing to less than
the Minimum Borrowing Amount applicable thereto, (ii) unless the Required Lenders otherwise agree,
Base Rate Loans may only be converted into Eurodollar Loans if no Default or Event of Default is in
existence on the date of the conversion, and (iii) no conversion pursuant to this Section 2.06
shall result in a greater number of Borrowings of Eurodollar Loans than is permitted under Section
2.02. Each such conversion shall be effected by the Borrower by giving the Administrative Agent at
the Notice Office prior to 2:00 P.M. (New York City time) at least (x) in the case of conversions
of Base Rate Loans into Eurodollar Loans, three Business Days’ prior notice and (y) in the case of
conversions of Eurodollar Loans into Base Rate Loans, one Business Day’s prior notice (each, a
“Notice of Conversion/Continuation”), in each case in the form of Exhibit A-2,
appropriately completed to specify the Loans to be so converted, the Borrowing or Borrowings
pursuant to which such Loans were incurred and, if to be converted into Euro Rate Loans, the
Interest Period to be initially applicable thereto. The Administrative Agent shall give each
Lender prompt notice of any such proposed conversion affecting any of its Loans.




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          2.07. Pro Rata Borrowings. All Borrowings of Revolving Loans under this Agreement
shall be incurred from the Lenders pro rata on the basis of their Revolving Loan
Commitments, provided that all Mandatory Borrowings shall be incurred from the Lenders
pro rata on the basis of their RL Percentages. It is understood that no Lender
shall be responsible for any default by any other Lender of its obligation to make Loans hereunder
and that each Lender shall be obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to make its Loans hereunder.




          2.08. Interest. (a) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Base Rate Loan from the date of Borrowing thereof until the earlier of (i)
the maturity thereof (whether by acceleration or otherwise) and (ii) the conversion of such Base
Rate Loan to a Eurodollar Loan pursuant to Section 2.06 or 2.09, as applicable, at a rate per annum
which shall be equal to the sum of the relevant Applicable Margin plus the Base Rate,
each as in effect from time to time.




          (b) The Borrower agrees to pay interest in respect of the unpaid principal amount of each
Eurodollar Loan from the date of Borrowing thereof until the earlier of (i) the maturity thereof
(whether by acceleration or otherwise) and (ii) the conversion of such Eurodollar Loan to a Base
Rate Loan pursuant to Section 2.06, 2.09 or 2.10, as applicable, at a rate per annum which shall,
during each Interest Period applicable thereto, be equal to the sum of the relevant Applicable
Margin as in effect from time to time during such Interest Period plus the Eurodollar Rate
for such Interest Period.




          (c) The Borrower hereby agrees to pay interest in respect of the unpaid principal amount of
each Euro Denominated Loan made to it from the date of the Borrowing thereof until the maturity
thereof (whether by acceleration, prepayment or otherwise) at a rate per annum which shall, during
each Interest Period applicable thereto, be equal to the sum of the relevant Applicable Margin as
in effect from time to time plus Euro LIBOR for such Interest Period plus any
Mandatory Costs.




          (d) The Borrower hereby agrees to pay interest in respect of the unpaid principal amount of
each Sterling Denominated Loan made to it from the date of the Borrowing thereof until the maturity
thereof (whether by acceleration, prepayment or otherwise) at a rate per annum which shall, during
each Interest Period applicable thereto, be equal to the sum of the relevant Applicable Margin as
in effect from time to time plus Sterling LIBOR for such Interest Period plus any
Mandatory Costs.




          (e) Overdue principal and, to the extent permitted by law, overdue interest in respect of (1)
in the case of overdue principal of, and interest or other overdue amounts owing with respect to,
Euro Denominated Loans, equal to 2% per annum in excess of the relevant Applicable Margin as in
effect from time to time plus Euro LIBOR for such successive periods not exceeding three
months as the Administrative Agent may determine from time to time in respect of amounts comparable
to the amount not paid plus any Mandatory Costs, (2) in the case of overdue principal of,
and interest or other amounts owing with respect to, Sterling Denominated Loans, equal to 2% per
annum in excess of the Applicable Margin for Sterling Denominated Loans as in effect from time to
time plus Sterling LIBOR for such successive




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periods not exceeding three months as the
Administrative Agent may determine from time to time in respect of amounts comparable to the amount
not paid plus any Mandatory Costs, and (3) for each other Loan, each Loan shall, in each
case, bear interest at a rate per annum equal to the greater of (x) the rate which is 2% in excess
of the rate then borne by such Loans and (y) the rate which is 2% in excess of the rate otherwise
applicable to Base Rate Loans, and all other overdue amounts payable hereunder and under any other
Credit Document shall bear interest at a rate per annum equal to the rate which is 2% in excess of
the rate applicable to Revolving Loans that are maintained at Base Rate Loans from time to time.
Interest that accrues under this Section 2.08(c) shall be payable on demand.




          (f) Accrued (and theretofore unpaid) interest shall be payable (i) in respect of each
Swingline Loan and Base Rate Loan, (x) quarterly in arrears on each Quarterly Payment
Date, (y) on the date of any repayment or prepayment in full of all outstanding Base Rate
Loans of any Tranche or Swingline Loans, and (z) at maturity (whether by acceleration or otherwise)
and, after such maturity, on demand, and (ii) in respect of each Euro Rate Loan, (x) on the last
day of each Interest Period applicable thereto and, in the case of an Interest Period in excess of
three months, on each date occurring at three month intervals after the first day of such Interest
Period, and (y) on the date of any repayment or prepayment (on the amount repaid or prepaid), at
maturity (whether by acceleration or otherwise) and, after such maturity, on demand.




          (g) Upon each Interest Determination Date, the Administrative Agent shall determine the Euro
Rate for each Interest Period applicable to the respective Euro Rate Loans and shall promptly
notify the Borrower and the Lenders thereof. Each such determination shall, absent manifest error,
be final and conclusive and binding on all parties hereto.




          2.09. Interest Periods. At the time the Borrower gives any Notice of Borrowing or
Notice of Conversion/Continuation in respect of the making of, or conversion into, any Euro Rate
Loan (in the case of the initial Interest Period applicable thereto) or prior to 11:00 A.M. (New
York City time) on the third Business Day prior to the expiration of an Interest Period applicable
to such Euro Rate Loan (in the case of any subsequent Interest Period), the Borrower shall have the
right to elect the interest period (each, an “Interest Period”) applicable to such Euro
Rate Loan, which Interest Period shall, at the option of the Borrower be a one, two, three, six or,
to the extent approved by each Lender with Loans and/or Revolving Loan Commitments, any other
period, provided that (in each case):





     (i) all Euro Rate Loans comprising a Borrowing shall at all times have the same
Interest Period;




     (ii) the initial Interest Period for any Euro Rate Loan shall commence on the date of
Borrowing of such Euro Rate Loan (including the date of any conversion thereto from a Base
Rate Loan) and each Interest Period occurring thereafter in respect of such Euro Rate Loan
shall commence on the day on which the next preceding Interest Period applicable thereto
expires;




     (iii) if any Interest Period for a Euro Rate Loan begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest Period, such
Interest Period shall end on the last Business Day of such calendar month;



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     (iv) if any Interest Period for a Euro Rate Loan would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on the next succeeding Business
Day; provided, however, that if any Interest Period for a Euro Rate Loan
would otherwise expire on a day which is not a Business Day but is a day of the month after
which no further Business Day occurs in such month, such Interest Period shall expire on the
next preceding Business Day;




     (v) unless the Required Lenders otherwise agree, no Interest Period may be selected at
any time when a Default or an Event of Default is then in existence;




     (vi) no Interest Period in respect of any Borrowing shall be selected which extends
beyond the Revolving Loan Maturity Date; and


With respect to any Non-Dollar Denominated Loans, at the end of any Interest Period applicable to a
Borrowing thereof, the Borrower, may elect to split the respective Borrowing into two or more
Borrowings of the same Type or combine two or more Borrowings of the same Type into a single
Borrowing, in each case, by having an Authorized Officer of the Borrower give notice thereof
together with its election of one or more Interest Periods, in each case so long as each resulting
Borrowing (x) has an Interest Period which complies with the foregoing requirements of this Section
2.09, (y) has a principal amount which is not less than the Minimum Borrowing Amount applicable to
Borrowings of the respective Type and Tranche, and (z) does not cause a violation of the
requirements of Section 2.02. If upon the expiration of any Interest Period applicable to a
Borrowing of Euro Rate Loans, the Borrower has failed to elect, or are not permitted to elect, a
new Interest Period to be applicable to such Euro Rate Loans as provided above, the Borrower shall
be deemed to have elected (x) if Eurodollar Loans, to convert such Eurodollar Loans into Base Rate
Loans and (y) if Non-Dollar Denominated Loans, to select a one-month Interest Period for such
Non-Dollar Denominated Loans, in any such case effective as of the expiration date of such current
Interest Period.




          2.10. Increased Costs, Illegality, etc. (a) In the event that any Lender shall have
determined in good faith (which determination shall, absent manifest error, be final and conclusive
and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the
Administrative Agent):





     (i) on any Interest Determination Date that, by reason of any changes arising after the
date of this Agreement affecting the applicable interbank market, adequate and fair means do
not exist for ascertaining the applicable interest rate on the basis provided for in the
definition of Euro Rate; or




     (ii) at any time, that such Lender shall incur increased costs or reductions in the
amounts received or receivable hereunder with respect to any Euro Rate Loan because of (x)
any change since the Effective Date in any applicable law or governmental rule, regulation,
order, guideline or request (whether or not having the force of law) or in the
interpretation or administration thereof and including the introduction of any new law or
governmental rule, regulation, order, guideline or request, such as, for example, but not
limited to: (A) a change in the basis of taxation of payment to any Lender of the principal
of or interest on the Loans or the Notes or any other amounts payable hereunder




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(except for changes in the rate of tax on, or determined by reference to, the net income or
net profits of such Lender imposed by the jurisdiction in which its principal office or
applicable lending office is located) or (B) a change in official reserve requirements, but,
in all events, excluding reserves required under Regulation D to the extent included in the
computation of the Eurodollar Rate and/or (y) other circumstances arising since the
Effective Date affecting such Lender, the interbank market or the position of such Lender in
such market (whether or not such Lender was a Lender at the time of such occurrence);




     (iii) at any time, that the making or continuance of any Euro Rate Loan has been made
unlawful by any law or governmental rule, regulation or order (or would conflict with any
governmental rule, regulation, guideline, request or order not having the force of law but
with which such Lender customarily complies even though the failure to comply therewith
would not be unlawful), or impracticable as a result of a contingency occurring after the
Effective Date which materially and adversely affects the applicable interbank market; or




     (iv) at any time that a Non-Dollar Currency is not available in sufficient amounts, as
determined in good faith by the Administrative Agent, to fund any Borrowing of Non-Dollar
Denominated Loans requested pursuant to Section 2.01;


then, and in any such event, such Lender (or the Administrative Agent, in the case of clause (i)
above) shall promptly give notice (by telephone confirmed in writing) to the Borrower and, except
in the case of clause (i) above, to the Administrative Agent of such determination (which notice
the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (w) in
the case of clause (i) above, (A) in the event Eurodollar Loans are so affected, Eurodollar Loans
shall no longer be available until such time as the Administrative Agent notifies Holdings, the
Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative
Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by
the Borrower with respect to Eurodollar Loans which have not yet been incurred (including by way of
conversion) shall be deemed rescinded by the Borrower and (B) in the event that any Non-Dollar
Denominated Loan is so affected, the relevant Euro Rate shall be determined on the basis provided
in the proviso to the definition of the relevant Euro Rate, (x) in the case of clause (ii) above,
the Borrower agrees to pay to such Lender, upon written demand therefor, such additional amounts
(in the form of an increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its sole discretion shall determine) as shall be required to compensate such
Lender for such increased costs or reductions in amounts received or receivable hereunder (with the
written notice as to the additional amounts owed to such Lender, submitted to the Borrower by such
Lender in accordance with the foregoing to be, absent manifest error, final and conclusive and
binding on all the parties hereto, although the failure to give any such notice shall not release
or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section
2.10(a) upon the subsequent receipt of such notice), (y) in the case of clause (iii) above, the
Borrower or shall take one of the actions specified in Section 2.10(b) as promptly as possible and,
in any event, within the time period required by law and (z) in the case of clause (iv) above,
Non-Dollar Denominated Loans denominated in the affected Non-Dollar Currency (exclusive of any such
Non-Dollar Denominated Loans which have theretofore been funded) shall no longer be




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available until
such time as the Administrative Agent notifies the Borrower and the Lenders that
the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any
Notice of Borrowing or notice pursuant to Section 2.03(b)(i) given by the Borrower with respect to
such Non-Dollar Denominated Loans which have not been incurred shall be deemed rescinded by the
Borrower. Each of the Administrative Agent and each Lender agrees that if it gives notice to the
Borrower of any of the events described in clause (i), (ii), (iii) or (iv) above, it shall promptly
notify the Borrower and, in the case of any such Lender, the Administrative Agent, if such event
ceases to exist.




          (b) At any time that any Euro Rate Loan is affected by the circumstances described in Section
2.10(a)(ii) or (iii), the Borrower may (and in the case of a Euro Rate Loan affected by the
circumstances described in Section 2.10(a)(iii) shall) either (x) if the affected Euro Rate Loan is
then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving
the Administrative Agent telephonic notice (confirmed in writing) on the same date that the
Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section
2.10(a)(ii) or (iii) or (y) if the affected Euro Rate Loan is then outstanding, upon at least three
Business Days’ written notice to the Administrative Agent, (A) in the case of a Eurodollar Loan,
require the affected Lender to convert such Eurodollar Loan into a Base Rate Loan (which
conversion, in the case of the circumstance described in Section 2.10(a)(iii), shall occur no later
than the last day of the Interest Period then applicable to such Eurodollar Loan or such earlier
day as shall be required by applicable law) and (B) in the case of any Euro Rate Loan (other than a
Eurodollar Loan), repay all outstanding Borrowings which include such affected Euro Rate Loans in
full in accordance with the applicable requirements of Section 5.01; provided that, (i) if
the circumstances described in Section 2.10(a)(iii) apply to any Non-Dollar Denominated Loan, the
Borrower, may, in lieu of taking the actions described above, maintain such Non-Dollar Denominated
Loan outstanding, in which case, (x) in the case of Euro Denominated Loans, the applicable Euro
Rate shall be determined on the basis provided in the proviso to the definition of Euro LIBOR or
(y) in the case of Sterling Denominated Term Loans, the applicable Euro Rate shall be determined on
the basis provided in the proviso to the definition of Sterling LIBOR, as the case may be, unless
the maintenance of such Non-Dollar Denominated Loan outstanding on such basis would not stop the
conditions described in Section 2.10(a)(iii) from existing (in which case the actions described
above, without giving effect to the proviso, shall be required to be taken) and (ii) if more than
one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to
this Section 2.10(b).




          (c) If any Lender determines that after the Effective Date the introduction of or any change
in any applicable law or governmental rule, regulation, order, guideline, directive or request
(whether or not having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by the NAIC or any Governmental Authority, central bank or
comparable agency, will have the effect of increasing the amount of capital required or expected to
be maintained by such Lender or any corporation controlling such Lender based on the existence of
such Lender’s Revolving Loan Commitments hereunder or its obligations hereunder, then the Borrower
agrees to pay to such Lender, upon its written demand therefor, such additional amounts as shall be
required to compensate such Lender or such other corporation for the increased cost to such Lender
or such other corporation or the reduction in the rate of return to such Lender or such other
corporation as a result of such increase of capital. In




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determining such additional amounts, each
Lender will act reasonably and in good faith and will use averaging and attribution methods which
are reasonable, provided that such Lender’s
determination of compensation owing under this Section 2.10(c) shall, absent manifest error,
be final and conclusive and binding on all the parties hereto. Each Lender, upon determining in
good faith that any additional amounts will be payable pursuant to this Section 2.10(c), will give
prompt written notice thereof to the Borrower, which notice shall set forth such Lender’s basis for
asserting its rights under this Section 2.10(c) and the calculation, in reasonable detail, of such
additional amounts claimed hereunder, although the failure to give any such notice shall not
release or diminish the Borrower’s obligations to pay additional amounts pursuant to this Section
2.10(c) upon the subsequent receipt of such notice. A Lender’s good faith determination of
compensation owing under this Section 2.10(c) shall, absent manifest error, be final and conclusive
and binding on all the parties hereto.



In the event that any Lender shall in good faith determine (which determination shall, absent
manifest error, be final and conclusive and binding on all parties hereto) at any time that such
Lender is required to maintain reserves (including, without limitation, any marginal, emergency,
supplemental, special or other reserves required by applicable law) which have been established by
any Federal, state, local or foreign court or governmental agency, authority, instrumentality or
regulatory body with jurisdiction over such Lender (including any branch, Affiliate or funding
office thereof) in respect of any Non-Dollar Denominated Loans or any category of liabilities which
includes deposits by reference to which the interest rate on any Non-Dollar Denominated Loan is
determined or any category of extensions of credit or other assets which includes loans by a
non-United States office of any Lender to non-United States residents, then, unless such reserves
are included in the calculation of the interest rate applicable to such Non-Dollar Denominated
Loans or in Section 2.10(a)(ii), such Lender shall promptly notify Holdings and the Borrower in
writing specifying the additional amounts required to indemnify such Lender against the cost of
maintaining such reserves (such written notice to provide in reasonable detail a computation of
such additional amounts) and the Borrower shall pay to such Lender such specified amounts as
additional interest at the time that the Borrower is otherwise required to pay interest in respect
of such Non-Dollar Denominated Loan or, if later, on written demand therefor by such Lender.




          2.11. Compensation. The Borrower agrees to compensate each Lender, upon its written request (which request
shall set forth in reasonable detail the basis for requesting such compensation), for all losses,
expenses and liabilities (including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required by such Lender to
fund its Eurodollar Loans but excluding loss of anticipated profits) which such Lender may sustain:
(i) if for any reason (other than a default by such Lender or the Administrative Agent) a
Borrowing of, or conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn by
the Borrower or deemed withdrawn pursuant to Section 2.10(a)); (ii) if any prepayment or repayment
(including any prepayment or repayment made pursuant to Section 5.01, Section 5.02 or as a result
of an acceleration of the Loans pursuant to Section 11) or conversion of any of its Eurodollar
Loans occurs on a date which is not the last day of an Interest Period with respect thereto; (iii)
if any prepayment of any of its Eurodollar Loans is not made on any date specified in a notice of
prepayment given by the




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Borrower; or (iv) as a consequence of (x) any other default by the Borrower
to repay Eurodollar
Loans when required by the terms of this Agreement or any Note held by such Lender or (y) any
election made pursuant to Section 2.10(b). Each Lender’s calculation of the amount of compensation
owing pursuant to this Section 2.11(a) shall be made in good faith. A Lender’s basis for
requesting compensation pursuant to this Section 2.11(a) and a Lender’s calculation of the amount
thereof, shall, absent manifest error, be final and conclusive and binding on all parties hereto.




          2.12. Change of Lending Office. Each Lender agrees that on the occurrence of any event giving rise to the operation of
Section 2.10(a)(ii) or (iii), Section 2.10(c), Section 3.06 or Section 5.04 with respect to such
Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any Loans or Letters of
Credit affected by such event, provided that such designation is made on such terms that
such Lender and its lending office suffer no economic, legal or regulatory disadvantage, with the
object of avoiding the consequence of the event giving rise to the operation of such Section.
Nothing in this Section 2.12 shall affect or postpone any of the obligations of Borrower or the
right of any Lender provided in Sections 2.10, 3.06 and 5.04.




          2.13. Replacement of Lenders. (x) If any Lender becomes a Defaulting Lender, (y) upon the occurrence of any event giving
rise to the operation of Section 2.10(a)(ii) or (iii), Section 2.10(c), Section 3.06 or Section
5.04 with respect to any Lender which results in such Lender charging to the Borrower increased
costs materially in excess of the average costs being charged by the other Lenders or (z) in the
case of a refusal by a Lender to consent to a proposed change, waiver, discharge or termination
with respect to this Agreement which has been approved by the Required Lenders as (and to the
extent) provided in Section 13.12(b), the Borrower shall have the right, in accordance with Section
13.04(b), if no Event of Default then exists or would exist after giving effect to such
replacement, to replace such Lender (the “Replaced Lender”) with one or more other Eligible
Transferees, none of whom shall constitute a Defaulting Lender at the time of such replacement
(collectively, the “Replacement Lender”) and each of which shall be reasonably acceptable
to the Administrative Agent with identical Revolving Loan Commitments and/or Loans of the
respective Tranche provided by the Replacement Lender; provided that:





     (a) at the time of any replacement pursuant to this Section 2.13, the Replacement
Lender shall enter into one or more Assignment and Assumption Agreements pursuant to Section
13.04(b) (and with all fees payable pursuant to said Section 13.04(b) to be paid by the
Replacement Lender and/or the Replaced Lender (as may be agreed to at such time by and among
the Borrower, the Replacement Lender and the Replaced Lender)) pursuant to which the
Replacement Lender shall acquire all of the Revolving Loan Commitments and outstanding Loans
(or, in the case of the replacement of only the Revolving Loan Commitment, the Revolving
Loan Commitment and outstanding Revolving Loans and participations in Letter of Credit
Outstandings) of, and in each case all participations in Letters of Credit by, the Replaced
Lender and, in connection therewith, shall pay to (x) the Replaced Lender in respect thereof
an amount equal to the sum of (A) an amount equal to the principal of, and all accrued
interest on,
all outstanding Loans of the Replaced Lender with respect to which such Replaced



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Lender is being replaced, (B) an amount equal to all Unpaid Drawings (unless there are no Unpaid
Drawings with respect to the Tranche being replaced) that have been funded by (and not
reimbursed to) such Replaced Lender, together with all then unpaid interest with respect
thereto at such time and (C) an amount equal to all accrued, but theretofore unpaid, Fees
owing to the Replaced Lender pursuant to Section 4.01, (y) each Issuing Lender an amount
equal to such Replaced Lender’s RL Percentage of any Unpaid Drawing relating to Letters of
Credit issued by such Letter of Credit Issuer (which at such time remains an Unpaid Drawing)
to the extent such amount was not theretofore funded by such Replaced Lender and (z) in the
case of any replacement of Revolving Loan Commitments, the Swingline Lender an amount equal
to such Replaced Lender’s RL Percentage of any Mandatory Borrowing to the extent such amount
was not theretofore funded by such Replaced Lender to the Swingline Lender; and




     (b) all obligations of the Borrower then due and owing to the Replaced Lender (other
than those (a) specifically described in clause (a) above in respect of which the assignment
purchase price has been, or is concurrently being, paid, but including all amounts, if any,
owing under Section 2.11 or (b) relating to any Loans and/or Revolving Loan Commitments of
the respective Replaced Lender which will remain outstanding after giving effect to the
respective replacement) shall be paid in full to such Replaced Lender concurrently with such
replacement.


Upon receipt by the Replaced Lender of all amounts required to be paid to it pursuant to this
Section 2.13, the Administrative Agent shall be entitled (but not obligated) and authorized to
execute an Assignment and Assumption Agreement on behalf of such Replaced Lender, and any such
Assignment and Assumption Agreement so executed by the Administrative Agent and the Replacement
Lender shall be effective for purposes of this Section 2.13 and Section 13.04. Upon the execution
of the respective Assignment and Assumption Agreement, the payment of amounts referred to in
clauses (a) and (b) above, recordation of the assignment on the Register by the Administrative
Agent pursuant to Section 13.15 and, if so requested by the Replacement Lender, delivery to the
Replacement Lender of the appropriate Note or Notes executed by the Borrower, the Replacement
Lender shall become a Lender hereunder and, unless the respective Replaced Lender continues to have
outstanding a Revolving Loan Commitment hereunder, the Replaced Lender shall cease to constitute a
Lender hereunder, except with respect to indemnification provisions under this Agreement
(including, without limitation, Sections 2.10, 2.11, 3.06, 5.04, 12.06, 13.01 and 13.06), which
shall survive as to such Replaced Lender, the RL Percentages of the Lenders shall be automatically
adjusted at such time to give effect to such replacement.




          2.14. Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time
of the delivery of the request referred to below, the Borrower shall have the right, in
consultation and coordination with, Administrative Agent as to all of the matters set forth below
in this Section 2.14, but without requiring the consent of any of the Lenders, to request at any
time and from time to time after the Initial Borrowing Date and prior to the date which is three
months prior to the Revolving Loan Maturity Date, that one or more Lenders (and/or one or
more other Persons which are Eligible Transferees and which will become Lenders as provided
below) provide Incremental Commitments, it being understood and




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agreed, however, that (i) no Lender
shall be obligated to provide an Incremental Commitment as a result of any such request by the
Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide
an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental
Commitment Agreement in respect thereof as provided in clause (b) of this Section 2.14, such Lender
shall not be obligated to fund any Revolving Loans or participate in Swingline Loans or Letters of
Credit in excess of its Commitment as in effect prior to giving effect to such Incremental
Commitment provided pursuant to this Section 2.14, (ii) any Lender (including any Eligible
Transferee who will become a Lender) may so provide an Incremental Commitment without the consent
of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to
this Section 2.14 shall be in a minimum aggregate amount (for all Lenders (including any Eligible
Transferee who will become a lender)) of at least $10,000,000 and in integral multiples of
$5,000,000 in excess thereof, and (iv) the aggregate amount of all Incremental Commitments provided
pursuant to this Section 2.14 shall not exceed the Maximum Incremental Commitment Amount.




          (b) At the time of the provision of Incremental Commitments pursuant to this Section 2.14, the
Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees
to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and
deliver to Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such
Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental
Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all
fees required to be paid in connection therewith at the time of such effectiveness shall have been
paid (including, without limitation, any agreed upon up-front or arrangement fees owing to
Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are
satisfied, (y) all other conditions set forth in this Section 2.14 shall have been satisfied, and
(z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement
shall have been satisfied. Administrative Agent shall promptly notify each Lender as to the
effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Commitment
under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such
Incremental Commitments, (ii) Appendix A shall be deemed modified to reflect the revised Revolving
Loan Commitments of the affected Lenders and (iii) to the extent requested by any Incremental
Lender, Revolving Loan Notes will be issued, at the expense of the Borrower, to such Incremental
Lender in conformity with the requirements of Section 2.05.




          (c) At the time of any provision of Incremental Commitments pursuant to this Section 2.14, the
Borrower shall, in coordination with Administrative Agent, repay outstanding Revolving Loans of
certain of the Lenders, and incur additional Revolving Loans from certain other Lenders (including
the Incremental Lenders), in each case to the extent necessary so that all of the Lenders
participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their
respective Revolving Loan Commitments (after giving effect to any increase in the Total Commitment
pursuant to this Section 2.14) and with the Borrower being obligated to pay to the respective
Lenders any costs of the type referred to in Section 2.10 in connection with any such repayment
and/or incurrence.




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          SECTION 3. Letters of Credit.




          3.01. Letters of Credit. (a) Subject to and upon the terms and conditions set forth herein, a Borrower may request
that an Issuing Lender issue, at any time and from time to time on and after the Initial Borrowing
Date and prior to the fifth Business Day (or the 30th day in the case of trade Letters of Credit
described in clause (y) below (each a “Trade Letter of Credit”)) prior to the Revolving
Loan Maturity Date, for the account of the Borrower and for the benefit of (x) any holder (or any
trustee, agent or other similar representative for any such holders) of L/C Supportable
Obligations, an irrevocable standby letter of credit, in a form customarily used by such Issuing
Lender or in such other form as is reasonably acceptable to such Issuing Lender, and (y) sellers of
goods to the Borrower or any of its Subsidiaries, an irrevocable trade letter of credit, in a form
customarily used by such Issuing Lender or in such other form as has been approved by such Issuing
Lender (each such letter of credit, a “Letter of Credit” and, collectively, the
“Letters of Credit”). All Letters of Credit shall be denominated in Dollars, Euros or
Sterling and shall be issued on a sight basis only.




          (b) Subject to and upon the terms and conditions set forth herein, each Issuing Lender agrees
that it will, at any time and from time to time on and after the Initial Borrowing Date and prior
to the fifth Business Day (or the 30th day in the case of Trade Letter of Credit) prior to the
Revolving Loan Maturity Date, following its receipt of the respective Letter of Credit Request,
issue for account of the Borrower, one or more Letters of Credit in support of such obligations as
are permitted to remain outstanding hereunder without giving rise to a Default or an Event of
Default, provided that no Issuing Lender shall be under any obligation to issue any Letter
of Credit of the types described above if at the time of such issuance:





     (i) any order, judgment or decree of any Governmental Authority or arbitrator shall
purport by its terms to enjoin or restrain such Issuing Lender from issuing such Letter of
Credit or any requirement of law applicable to such Issuing Lender or any request or
directive (whether or not having the force of law) from any Governmental Authority with
jurisdiction over such Issuing Lender shall prohibit, or request that such Issuing Lender
refrain from, the issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon such Issuing Lender with respect to such Letter of Credit
any restriction or reserve or capital requirement (for which such Issuing Lender is not
otherwise compensated hereunder) not in effect with respect to such Issuing Lender on the
date hereof, or any unreimbursed loss, cost or expense which was not applicable or in effect
with respect to such Issuing Lender as of the date hereof and which such Issuing Lender
reasonably and in good faith deems material to it; or




     (ii) such Issuing Lender shall have received from the respective Borrower, any other
Credit Party or the Required Lenders prior to the issuance of such Letter of Credit notice
of the type described in the second sentence of Section 3.03(b).



          (c) Part A of Schedule XIX hereto contains a description of certain letters of credit issued
and outstanding on the Initial Borrowing Date (and setting forth, with respect to each such letter
of credit, (i) the name of the issuing lender, (ii) the letter of credit number, (iii) the name(s)
of the account party or account parties, (iv) the stated amount (including the




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currency in which
such letter of credit is denominated, which shall be Dollars or an Alternative Currency), (v) the
name of the beneficiary, (vi) the expiry date and (vii) whether such letter of credit constitutes a
standby letter of credit or a trade letter of credit). Each such letter of credit, including any
extension or renewal thereof (each, as amended from time to time in accordance with the terms
thereof and hereof, an “Existing Letter of Credit”) shall constitute a “Letter of Credit”
for all purposes of this Agreement and issued, for purposes of Section 3.04(a), on the Initial
Borrowing Date. Any Lender hereunder (and any of such Lender’s Affiliates and/or branches) which
has issued an Existing Letter of Credit shall constitute an “Issuing Lender” for all purposes of
this Agreement.




          3.02. Maximum Letter of Credit Outstandings; Final Maturities. (a) Notwithstanding anything to the contrary contained in this Agreement, (i) no Letter of
Credit shall be issued the Stated Amount of which, when added to the Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid on the date of, and prior to the issuance of, the
respective Letter of Credit) at such time would exceed either (x) $100,000,000, (y) when added to
the sum of (I) the aggregate principal amount of all Revolving Loans then outstanding and (II) the
aggregate principal amount of all Swingline Loans then outstanding, an amount equal to the Total
Commitment at such time or (z) cause the Aggregate Exposure to exceed the Borrowing Base at such
time (based on the Borrowing Base Certificate last delivered), and (ii) each Letter of Credit shall
by its terms terminate (x) in the case of standby Letters of Credit, on or before the earlier of
(A) the date which occurs 12 months after the date of the issuance thereof (although any such
standby Letter of Credit may be extendible for successive periods of up to 12 months, but, in each
case, not beyond the fifth Business Day prior to the Revolving Loan Maturity Date, on terms
acceptable to the Issuing Lender) and (B) five Business Days prior to the Revolving Loan Maturity
Date; provided that a standby Letter of Credit issued to support obligations under any
Specified Existing Ship Lease may terminate by its terms on or prior to the earlier to occur of (1)
the date which occurs 24 months after the date of the issuance thereof and (2) the fifth Business
Day preceding the Revolving Loan Maturity Date, and (y) in the case of trade Letters of Credit, on
or before the earlier of (A) the date which occurs 180 days after the date of issuance thereof and
(B) 30 days prior to the Revolving Loan Maturity Date.




          (b) Notwithstanding the foregoing, (i) no Euro Denominated Letter of Credit shall be issued
the Stated Amount of which when added to the Euro Denominated Obligations (exclusive of Unpaid
Drawings which are repaid on the date of, and prior to the issuance of, the respective Letter of
Credit) would exceed the Maximum Euro Denominated Loan Amount and (ii) no Sterling Denominated
Letter of Credit shall be issued the Stated Amount of which when added to the Sterling Denominated
Obligations (exclusive of Unpaid Drawings which are repaid on the date of, and prior to the
issuance of, the respective Letter of Credit) would exceed the Maximum Sterling Denominated Loan
Amount.




          3.03. Letter of Credit Requests; Minimum Stated Amount . (a) Whenever the Borrower desires that a Letter of Credit be issued for its account, the
Borrower shall give the Administrative Agent and the respective Issuing Lender at least three
Business Days’ (or such shorter period as is acceptable to such Issuing Lender) written notice
thereof (including by way of facsimile) including without limitation by specifying the Available
Currency such Letter of




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Credit is to be denominated. Each notice shall be in the form of
Exhibit C, appropriately completed (each, a “Letter of Credit Request”).




          (b) The making of each Letter of Credit Request shall be deemed to be a representation and
warranty by the Borrower to the Lenders that such Letter of Credit may be issued in accordance
with, and will not violate the requirements of, Section 3.02. Unless the respective Issuing Lender
has received notice from the Borrower, any other Credit Party or the Required Lenders before it
issues a Letter of Credit that one or more of the conditions specified in Section 6 or 7 are not
then satisfied, or that the issuance of such Letter of Credit would violate Section 3.02, then such
Issuing Lender shall, subject to the terms and conditions of this Agreement, issue the requested
Letter of Credit for the account of the Borrower in accordance with such Issuing Lender’s usual and
customary practices. Upon the issuance of or modification or amendment to any standby Letter of
Credit, each Issuing Lender shall promptly notify the Borrower and the Administrative Agent, in
writing of such issuance, modification or amendment and such notice shall be accompanied by a copy
of such Letter of Credit or the respective modification or amendment thereto, as the case may be.
Promptly after receipt of such notice the Administrative Agent shall notify the Participants, in
writing, of such issuance, modification or amendment. On the first Business Day of each week, each
Issuing Lender shall furnish the Administrative Agent with a written (including via facsimile)
report of the daily aggregate outstandings of trade Letters of Credit issued by such Issuing Lender
for the immediately preceding week. Notwithstanding anything to the contrary contained in this
Agreement, in the event that a Lender Default exists with respect to a Lender, no Issuing Lender
shall be required to issue any Letter of Credit unless such Issuing Lender has entered into
arrangements satisfactory to it and the Borrower to eliminate such Issuing Lender’s risk with
respect to the participation in Letters of Credit by the Defaulting Lender or Lenders, including by
cash collateralizing such Defaulting Lender’s or Lenders’ RL Percentage of the Letter of Credit
Outstandings.




          (c) The Stated Amount of each Letter of Credit upon issuance shall be not less than (x) in the
case of a Dollar Denominated Letter of Credit, $250,000, (y) in the case of a Euro Denominated
Letter of Credit, €150,000 and (z) in the case of a Sterling Denominated Letter of Credit,
£150,000, or in each case such lesser amount as is reasonably acceptable to the respective Issuing
Lender.




          3.04. Letter of Credit Participations. (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such
Issuing Lender shall be deemed to have sold and transferred to each Lender, and each such Lender
(in its capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuing Lender, without recourse or
warranty, an undivided interest and participation, to the extent of such Participant’s RL
Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations
of the Borrower under this Agreement with respect thereto, and any security therefor
or guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments or RL
Percentages of the Lenders pursuant to Section 2.13 or 13.04(b), it is hereby agreed that, with
respect to all outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be
an automatic adjustment to the participations pursuant to




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this Section 3.04 to reflect the new RL
Percentages of the assignor and assignee Lender, as the case may be.




          (b) In determining whether to pay under any Letter of Credit, no Issuing Lender shall have any
obligation relative to the other Lenders other than to confirm that any documents required to be
delivered under such Letter of Credit appear to have been delivered and that they appear to
substantially comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by an Issuing Lender under or in connection with any Letter of Credit
issued by it shall not create for such Issuing Lender any resulting liability to the Borrower, any
other Credit Party, any Lender or any other Person unless such action is taken or omitted to be
taken with gross negligence or willful misconduct on the part of such Issuing Lender (as determined
by a court of competent jurisdiction in a final and non-appealable decision).




          (c) In the event that an Issuing Lender makes any payment under any Letter of Credit issued by
it and the Borrower shall not have reimbursed such amount in full to such Issuing Lender pursuant
to Section 3.05(a), such Issuing Lender shall promptly notify the Administrative Agent, which shall
promptly notify each Participant of such failure, and each Participant shall promptly and
unconditionally pay to such Issuing Lender the amount of such Participant’s RL Percentage of such
unreimbursed payment in the currency of the respective Unpaid Drawing and in same day funds. If
the Administrative Agent so notifies, prior to 12:00 Noon (New York City time) on any Business Day,
any Participant required to fund a payment under a Letter of Credit, such Participant shall make
available to the respective Issuing Lender in Dollars or such other currency, as applicable, such
Participant’s RL Percentage of the amount of such payment on such Business Day in same day funds.
If and to the extent such Participant shall not have so made its RL Percentage of the amount of
such payment available to respective Issuing Lender, such Participant agrees to pay to such Issuing
Lender, forthwith on demand such amount, together with interest thereon, for each day from such
date until the date such amount is paid to such Issuing Lender at the overnight Federal Funds Rate
(or in the case of amounts owed in Euros, at the Overnight Euro Rate) for the first three days and
at the interest rate applicable to Revolving Loans that are maintained as Base Rate Loans for each
day thereafter. The failure of any Participant to make available to an Issuing Lender its RL
Percentage of any payment under any Letter of Credit issued by such Issuing Lender shall not
relieve any other Participant of its obligation hereunder to make available to such Issuing Lender
its RL Percentage of any payment under any Letter of Credit on the date required, as specified
above, but no Participant shall be responsible for the failure of any other Participant to make
available to such Issuing Lender such other Participant’s RL Percentage of any such payment.




          (d) Whenever an Issuing Lender receives a payment of a reimbursement obligation as to which it
has received any payments from the Participants pursuant to clause (c) above, such Issuing Lender
shall pay to each such Participant which has paid its RL Percentage thereof, in Dollars (or in
Euros or Sterling in the case of payments to be made in Euros or Sterling pursuant to Section
3.04(c)) and in same day funds, an amount equal to such Participant’s share (based upon the
proportionate aggregate amount originally funded by such
Participant to the aggregate amount funded by all Participants) of the principal amount of
such




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reimbursement obligation and interest thereon accruing after the purchase of the respective
participations.




          (e) Upon the request of any Participant, each Issuing Lender shall furnish to such Participant
copies of any standby Letter of Credit issued by it and such other documentation as may reasonably
be requested by such Participant.




          (f) The obligations of the Participants to make payments to each Issuing Lender with respect
to Letters of Credit shall be irrevocable and not subject to any qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this Agreement under
all circumstances, including, without limitation, any of the following circumstances:





     (i) any lack of validity or enforceability of this Agreement or any of the other Credit
Documents;




     (ii) the existence of any claim, setoff, defense or other right which Holdings or any
of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit,
any transferee of any Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, any Participant, or any other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions contemplated herein
or any unrelated transactions (including any underlying transaction between Holdings or any
Subsidiary of Holdings and the beneficiary named in any such Letter of Credit);




     (iii) any draft, certificate or any other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;




     (iv) the surrender or impairment of any security for the performance or observance of
any of the terms of any of the Credit Documents; or




     (v) the occurrence of any Default or Event of Default.



          3.05. Agreement to Repay Letter of Credit Drawings. (a) The Borrower agrees to reimburse each Issuing Lender, by making payment to the
Administrative Agent in immediately available funds at the Payment Office, for any payment or
disbursement made by such Issuing Lender under any Letter of Credit issued by it (each such amount,
so paid until reimbursed by the Borrower, an “Unpaid Drawing”), by making payment in
Dollars (in the case of all Dollar Denominated Letters of Credit), Euros (in the case of Euro
Denominated Letters of Credit) or Sterling (in the case of Sterling Denominated Letters of Credit)
not later than one Business Day following receipt by the Borrower of notice of such payment or
disbursement (provided that no such notice shall be required to be given if a Default or an
Event of Default under Section 11.05 shall have occurred and be continuing, in which case the
Unpaid Drawing shall be due and payable immediately without presentment, demand, protest or notice
of any kind (all of which are hereby waived by the Borrower)), with interest on the
amount so paid or disbursed by such Issuing Lender, to the extent not reimbursed prior to 1:00
P.M. (New York




          
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City time) on the date of such payment or disbursement, from and including the date
paid or disbursed to but excluding the date such Issuing Lender was reimbursed by the Borrower
therefor at a rate per annum equal to the Base Rate as in effect from time to time plus the
Applicable Margin as in effect from time to time for Revolving Loans that are maintained as Base
Rate Loans; provided, however, to the extent such amounts are not reimbursed prior
to 1:00 P.M. (New York time) on the third Business Day following notice to the Borrower by the
Administrative Agent or the respective Issuing Lender of such payment or disbursement, interest
shall thereafter accrue on the amounts so paid or disbursed by such Issuing Lender (and until
reimbursed by the respective Account Party) at a rate per annum which shall be (x) in the case of
Dollar Denominated Letters of Credit, Sterling Denominated Letters of Credit, the Base Rate in
effect from time to time plus the Applicable Margin for Revolving Loans in each case
maintained as Base Rate Loans, as in effect from time to time plus 2% and (y) in the case
of Euro Denominated Letters of Credit, the Overnight Euro Rate in effect from time to time
plus the Applicable Margin for Euro Denominated Loans as in effect from time to time
plus any Mandatory Costs plus 2%, in each such case, with interest to be payable on
demand, provided further, that it is understood and agreed, however, that the
notices referred to above in this clause (a) and in the immediately preceding proviso shall not be
required to be given if a Default or an Event of Default under Section 11.05 shall have occurred
and be continuing (in which case the Unpaid Drawings shall be due and payable immediately without
presentment, demand, protest or notice of any kind (all of which are hereby waived by each Credit
Party) and shall bear interest at the rate provided in the foregoing proviso on and after the third
Business Day following the respective Drawing). The respective Issuing Lender shall give the
Borrower prompt notice of each Drawing under any Letter of Credit, provided that the
failure to give, or any delay in giving, any such notice shall in no way affect, impair or diminish
the Borrower’s obligations under this Agreement.




          (b) The obligations of the Borrower under this Section 3.05 to reimburse each Issuing Lender
with respect to drafts, demands and other presentations for payment under Letters of Credit issued
by it (each, a “Drawing”) (including, in each case, interest thereon) shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which Holdings or any Subsidiary of Holdings may have or have had against any
Lender (including in its capacity as an Issuing Lender or as a Participant), including, without
limitation, any defense based upon the failure of any drawing under a Letter of Credit to conform
to the terms of the Letter of Credit or any nonapplication or misapplication by the beneficiary of
the proceeds of such Drawing; provided, however, that the Borrower shall not be
obligated to reimburse any Issuing Lender for any wrongful payment made by such Issuing Lender
under a Letter of Credit issued by it as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of
competent jurisdiction in a final and non-appealable decision).




          3.06. Increased Costs. If at any time after the Effective Date, the introduction of or any change in any
applicable law, rule, regulation, order, guideline or request or in the interpretation or
administration thereof by the NAIC or any Governmental Authority charged with the interpretation or
administration thereof, or compliance by any Issuing Lender or any Participant
with any request or directive by the NAIC or by any such Governmental Authority (whether or
not having the force of law), shall either (i) impose, modify or make applicable any




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reserve,
deposit, capital adequacy or similar requirement against letters of credit issued by any Issuing
Lender or participated in by any Participant, or (ii) impose on any Issuing Lender or any
Participant any other conditions relating, directly or indirectly, to this Agreement or any Letter
of Credit; and the result of any of the foregoing is to increase the cost to any Issuing Lender or
any Participant of issuing, maintaining or participating in any Letter of Credit, or reduce the
amount of any sum received or receivable by any Issuing Lender or any Participant hereunder or
reduce the rate of return on its capital with respect to Letters of Credit (except for changes in
the rate of tax on, or determined by reference to, the net income or net profits of such Issuing
Lender or such Participant pursuant to the laws of the jurisdiction in which it is organized or in
which its principal office or applicable lending office is located or any subdivision thereof or
therein), then, upon the delivery of the certificate referred to below to the Borrower by any
Issuing Lender or any Participant (a copy of which certificate shall be sent by such Issuing Lender
or such Participant to the Administrative Agent), the Borrower agrees to pay to such Issuing Lender
or such Participant such additional amount or amounts as will compensate such Issuing Lender or
such Participant for such increased cost or reduction in the amount receivable or reduction on the
rate of return on its capital. Any Issuing Lender or any Participant, upon determining that any
additional amounts will be payable to it pursuant to this Section 3.06, will give prompt written
notice thereof to the Borrower, which notice shall include a certificate submitted to the Borrower
by such Issuing Lender or such Participant (a copy of which certificate shall be sent by such
Issuing Lender or such Participant to the Administrative Agent), setting forth in reasonable detail
the basis for the calculation of such additional amount or amounts necessary to compensate such
Issuing Lender or such Participant. The certificate required to be delivered pursuant to this
Section 3.06 shall, absent manifest error, be final and conclusive and binding on the Borrower.




          SECTION 4. Commitment Commission; Fees; Reductions of Commitment.




          4.01. Fees. (a) The Borrower agrees to pay to the Administrative Agent for distribution to each
Non-Defaulting Lender a commitment commission (the “Commitment Commission”) for the period
from and including the Effective Date to and including the Revolving Loan Maturity Date (or such
earlier date on which the Total Commitment has been terminated) computed at a rate per annum equal
to the Applicable Commitment Commission Percentage of the Unutilized Revolving Loan Commitment of
such Non-Defaulting Lender as in effect from time to time. Accrued Commitment Commission shall be
due and payable quarterly in arrears on each Quarterly Payment Date and on the date upon which the
Total Commitment is terminated.




          (b) The Borrower agrees to pay to the Administrative Agent for distribution to each Lender
(based on each such Lender’s respective RL Percentage) a fee in respect of each Letter of Credit
(the “Letter of Credit Fee”) for the period from and including the date of issuance of such
Letter of Credit to and including the date of termination or expiration of such Letter of Credit,
computed at a rate per annum equal to the Applicable Margin as in effect from time to time during
such period with respect to Revolving Loans that are maintained as
Eurodollar Loans on the daily Stated Amount of each such Letter of Credit. Accrued Letter of
Credit Fees shall be due and payable quarterly in arrears on each Quarterly Payment Date and on the
first day on or after the termination of the Total Commitment upon which no Letters of Credit
remain outstanding.





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          (c) The Borrower agrees to pay to each Issuing Lender, for its own account, a facing fee in
respect of each Letter of Credit issued by it (the “Facing Fee”) for the period from and
including the date of issuance of such Letter of Credit to and including the date of termination or
expiration of such Letter of Credit, computed at a rate per annum equal to 1/8 of 1% on the daily
Stated Amount of such Letter of Credit, provided that in any event the minimum amount of
Facing Fees payable in any twelve-month period for each Letter of Credit shall be not less
than $500, it being agreed that, on the day of issuance of any Letter of Credit and on each
anniversary thereof prior to the termination or expiration of such Letter of Credit, if $500 will
exceed the amount of Facing Fees that will accrue with respect to such Letter of Credit for the
immediately succeeding twelve-month period, the full $500 shall be payable on the date of issuance
of such Letter of Credit and on each such anniversary thereof. Except as otherwise provided in the
proviso to the immediately preceding sentence, accrued Facing Fees shall be due and payable
quarterly in arrears on each Quarterly Payment Date and upon the first day on or after the
termination of the Total Commitment upon which no Letters of Credit remain outstanding.




          (d) The Borrower agrees to pay to each Issuing Lender, for its own account, upon each payment
under, issuance of, or amendment to, any Letter of Credit issued by it, such amount as shall at the
time of such event be the administrative charge and the reasonable expenses which such Issuing
Lender is generally imposing in connection with such occurrence with respect to letters of credit.




          (e) The Borrower agrees to pay to the Administrative Agent such fees as may be agreed to in
writing from time to time by Holdings or any of its Subsidiaries and the Administrative Agent.




          4.02. Voluntary Termination of Unutilized Revolving Loan Commitments. (a) Upon at least three Business Days’ prior written notice to the Administrative Agent at
the Notice Office (which notice the Administrative Agent shall promptly transmit to each of the
Lenders), the Borrower shall have the right, at any time or from time to time, without premium or
penalty to terminate the Total Unutilized Revolving Loan Commitment in whole, or reduce it in part,
pursuant to this Section 4.02(a), in an integral multiple of $5,000,000 in the case of partial
reductions to the Total Unutilized Revolving Loan Commitment, provided that each such
reduction shall apply proportionately to permanently reduce the Revolving Loan Commitment of each
Lender.




          (b) In the event of certain refusals by a Lender to consent to certain proposed changes,
waivers, discharges or terminations with respect to this Agreement which have been approved by the
Required Lenders as (and to the extent) provided in Section 13.12(b), the Borrower shall have the
right, subject to obtaining the consents required by Section 13.12(b),
upon five Business Days’ prior written notice to the Administrative Agent at the Notice Office
(which notice the Administrative Agent shall promptly transmit to each of the Lenders), to
terminate the entire Revolving Loan Commitment of such Lender, so long as all Loans, together with
accrued and unpaid interest, Fees and all other amounts, owing to such Lender (including all
amounts, if any, owing pursuant to Section 2.11 are repaid concurrently with the effectiveness of
such termination (at which time Schedule I shall be deemed modified to reflect such changed




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amounts) and such Lender’s RL Percentage of all outstanding Letters of Credit is cash
collateralized in a manner satisfactory to the Administrative Agent and the respective Issuing
Lenders, and at such time, such Lender shall no longer constitute a “Lender” for purposes of this
Agreement, except with respect to indemnifications under this Agreement (including, without
limitation, Sections 2.10, 2.11, 3.06, 5.04, 12.06, 13.01 and 13.06), which shall survive as to
such repaid Lender.




          4.03. Mandatory Reduction of Commitments. (a) The Total Commitment (and the Revolving Loan Commitment of each Lender) shall
terminate in its entirety on April 30, 2006, unless the Initial Borrowing Date has occurred on or
prior to such date.




          (b) In addition to any other mandatory commitment reductions pursuant to this Section 4.03,
the Total Commitment shall terminate in its entirety upon the earlier of (i) the Revolving Loan
Maturity Date and (ii) unless the Required Lenders otherwise agree in writing, the date on which a
Change of Control occurs.




          (c) Each reduction to, or termination of, the Total Commitment pursuant to this Section 4.03
shall be applied to proportionately reduce or terminate, as the case may be, the Revolving Loan
Commitment of each Lender with a Revolving Loan Commitment.




          SECTION 5. Prepayments; Payments; Taxes.




          5.01. Voluntary Prepayments. (a) The Borrower shall have the right to prepay the Loans, without premium or penalty, in
whole or in part at any time and from time to time on the following terms and conditions: (i) the
Borrower shall give the Administrative Agent prior to 12:00 Noon (New York City time) at the Notice
Office (x) at least one Business Day’s prior written notice (or telephonic notice promptly
confirmed in writing) of its intent to prepay Base Rate Loans (or same day notice in the case of a
prepayment of Swingline Loans) and (y) at least three Business Days’ prior written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay Euro Rate Loans, which
notice (in each case) shall specify whether Revolving Loans or Swingline Loans shall be prepaid,
the amount of such prepayment and the Types of Loans to be prepaid and, in the case of Euro Rate
Loans, the specific Borrowing or Borrowings pursuant to which such Euro Rate Loans were made, and
which notice the Administrative Agent shall, except in the case of a prepayment of Swingline Loans,
promptly transmit to each of the Lenders; (ii) (x) each partial prepayment of Revolving Loans
pursuant to this Section 5.01(a) shall be in an aggregate principal amount of at least $5,000,000
(or such lesser amount as is
acceptable to the Administrative Agent) and (z) each partial prepayment of Swingline Loans
pursuant to this Section 5.01(a) shall be in an aggregate principal amount of at least $1,000,000
(or such lesser amount as is acceptable to the Administrative Agent in any given case),
provided that if any partial prepayment of Euro Rate Loans made pursuant to any Borrowing
shall reduce the outstanding principal amount of Euro Rate Loans made pursuant to such Borrowing to
an amount less than the Minimum Borrowing Amount applicable thereto, then such Borrowing
may not be continued as a Borrowing of Euro Rate Loans (and same shall automatically be converted
into a Borrowing of Base Rate Loans) and any election of an Interest Period with respect thereto
given by the Borrower or Borrower shall have no force or effect; (iii) each prepayment pursuant to
this Section 5.01(a) in respect of any Loans made pursuant to a Borrowing shall be applied
pro




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rata among such Loans, provided that at the Borrower’s election in
connection with any prepayment of Revolving Loans pursuant to this Section 5.01(a), such prepayment
shall not, so long as no Default or Event of Default then exists, be applied to any Revolving Loan
of a Defaulting Lender;




          (b) In the event of certain refusals by a Lender to consent to certain proposed changes,
waivers, discharges or terminations with respect to this Agreement which have been approved by the
Required Lenders as (and to the extent) provided in Section 13.12(b), the Borrower may, upon three
Business Days’ prior written notice to the Administrative Agent at the Notice Office (which notice
the Administrative Agent shall promptly transmit to each of the Lenders), repay all Loans of such
Lender (including all amounts, if any, owing pursuant to Section 2.11), together with accrued and
unpaid interest, Fees and all other amounts then owing to such Lender in accordance with, and
subject to the requirements of, said Section 13.12(b), so long as (A) in the case of the repayment
of Revolving Loans of any Lender pursuant to this clause (b), (x) the Revolving Loan Commitment of
such Lender is terminated concurrently with such repayment pursuant to Section 4.02(b) (at which
time Schedule I shall be deemed modified to reflect the changed Revolving Loan Commitments) and (y)
such Lender’s RL Percentage of all outstanding Letters of Credit is cash collateralized in a manner
satisfactory to the Administrative Agent and the respective Issuing Lenders and (B) the consents,
if any, required by Section 13.12(b) in connection with the repayment pursuant to this clause (b)
shall have been obtained.




          5.02. Mandatory Repayments and Commitment Reductions. (a) (i) On any day on which the (other than during an Agent Advance Period) Aggregate
Exposure exceeds the lesser of (x) the Total Commitment at such time and (y) the Borrowing Base at
such time (based on the Borrowing Base Certificate last delivered), the Borrower shall prepay on
such day the principal of Swingline Loans and, after all Swingline Loans have been repaid in full
or if no Swingline Loans are outstanding, Revolving Loans in an amount equal to such excess. If,
after giving effect to the prepayment of all outstanding Swingline Loans and Revolving Loans, the
aggregate amount of the Letter of Credit Outstandings exceeds the lesser of (A) the Total
Commitment at such time, and (B) the Borrowing Base at such time (based on the Borrowing Base
Certificate (as delivered)), the Borrower shall pay to the Administrative Agent at the Payment
Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up
to a maximum amount equal to the Letter of Credit Outstandings at such time), such cash and/or Cash
Equivalents to be
held as security for all Obligations of the Borrower to the Issuing Lenders and the Lenders
hereunder in a cash collateral account to be established by the Administrative Agent.




          (ii) On any day on which the Dollar Equivalent of the aggregate outstanding principal amount of
all Euro Denominated Obligations exceeds the Maximum Euro Denominated Loan Amount, the Borrower
shall prepay on such day the principal of outstanding Euro Denominated Loans in an amount (taking
the Dollar Equivalent of the amounts paid in the respective currency in which payments on such Euro
Denominated Loans are owing) equal to such excess. If, after giving effect to the prepayment of
all outstanding Euro Denominated Loans, the aggregate amount of the Letter of Credit Outstandings
of Euro Letters of Credit exceeds the Maximum Euro Denominated Loan Amount, the Borrower shall pay
to the




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Administrative Agent at the Payment Office on such day an amount of cash and/or Cash
Equivalents equal to the amount of such excess (up to a maximum amount equal to the Letter of
Credit Outstandings at such time), such cash and/or Cash Equivalents to be held as security for all
Obligations of the Borrower to the Issuing Lenders and the Lenders hereunder in a cash collateral
account to be established by the Administrative Agent.




          (iii) On any day on which the Dollar Equivalent of the aggregate outstanding principal amount
of all Sterling Denominated Loans exceeds the Maximum Sterling Denominated Loan Amount, the
Borrower shall prepay on such day the principal of outstanding Sterling Denominated Loans in an
amount (taking the Dollar Equivalent of the amounts paid in the respective currency in which
payments on such Sterling Denominated Loans are owing) equal to such excess. If, after giving
effect to the prepayment of all outstanding Sterling Denominated Loans, the aggregate amount of the
Letter of Credit Outstandings of Sterling Letters of Credit exceeds the Maximum Sterling
Denominated Loan Amount, the Borrower shall pay to the Administrative Agent at the Payment Office
on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a
maximum amount equal to the Letter of Credit Outstandings at such time), such cash and/or Cash
Equivalents to be held as security for all Obligations of the Borrower to the Issuing Lenders and
the Lenders hereunder in a cash collateral account to be established by the Administrative Agent.




          (b) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date
upon which Holdings or any of the its Subsidiaries receives Net Sale Proceeds from any Asset Sale
(other than the California Disposition, to the extent the Net Sale Proceeds therefrom received by a
Subsidiary of the Borrower (exclusive of any portion thereof which is distributed to a minority
shareholder of such Subsidiary in accordance with the requirements of Section 10.06) are promptly
on-loaned to an Affiliate of the Borrower in accordance with the requirements of Section 10.05 and
10.07), an amount equal to 100% of the Net Sale Proceeds from such Asset Sale shall be applied as a
mandatory repayment and/or commitment reduction in accordance with the requirements of Section
5.02(f); provided that (I) Net Sale Proceeds from any Asset Sale (other than (w) Net Sale
Proceeds from any Contemplated Asset Sale consummated in accordance with the requirements of
Section 10.02(xviii), (x) any Net Sale Proceeds from the sale of any Principal Property pursuant to
Section 10.02(xix), (y) Net Sale Proceeds from the sale or other disposition of the Equity
Interests of the Unrestricted Wellbeing Joint Venture pledged pursuant to the Pledge Agreement and
(z) Net Sale Proceeds in excess of $100,000,000 in the aggregate in any fiscal year of the Borrower
received from Asset Sales made in reliance on Section 10.02(v)) shall not give rise to a mandatory
repayment and/or commitment
reduction on such date as otherwise required above, so long as no Specified Default and no
Event of Default exists at the time such Net Sale Proceeds are received and an Authorized Officer
of Holdings or the Borrower has delivered a certificate to the Administrative Agent on or prior to
such date stating that such Net Sale Proceeds shall be used (or contractually committed to be used)
to purchase capital assets used or to be used in a Permitted Business (other than inventory) within
360 days following the date of receipt of such Net Sale Proceeds from such Asset Sale (which
certificate shall set forth (in reasonable detail) the estimates of the proceeds to be so expended)
and (II) Net Sale Proceeds from one (but not more than one) sale of a Principal Property
consummated after the Effective Date in reliance on Section 10.02(xix) and notified in writing to
the Administrative Agent shall not give rise to a mandatory repayment and/or




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commitment reduction
on such date as otherwise required above, so long as no Specified Default and no Event of Default
exists at the time such Net Sale Proceeds are received and an Authorized Officer of Holdings or the
Borrower has delivered a certificate to the Administrative Agent on or prior to such date stating
that such Net Sale Proceeds shall be used (or contractually committed to be used) to purchase,
construct and/or make investments in a new Principal Property (or assets and properties that upon
completion of such purchase, construction and/or investments will become a Principal Property)
within 360 days following the date of receipt of such Net Sale Proceeds from such sale of such
Principal Property (which certificate shall set forth the estimates of the proceeds to be so
expended); provided, however, that (I) if all or any portion of such Net Sale
Proceeds are not so used within such 360-day period (or contractually committed within such period
to be used), such remaining portion shall be applied on the last day of such period as a mandatory
repayment as provided above (without giving effect to the immediately preceding proviso) and (II)
if all or any portion of such Net Sale Proceeds are not required to be applied on the last day of
such 360-day period referred to in clause (I) of this proviso because such amount is contractually
committed within such period to be used and then either (A) subsequent to such date such contract
is terminated or expires without such portion being so used or (B) such contractually committed
portion is not so used within six months after the last day of such 360-day period referred to in
clause (I) of this proviso, such remaining portion, in the case of either of the preceding clauses
(A) or (B), shall be applied as a mandatory repayment as provided above (without giving effect to
the immediately preceding proviso). Notwithstanding anything to the contrary contained in this
Section 5.02(b), (x) if any Permitted Senior Notes Document (after the execution and delivery
thereof), any Permitted Refinancing Senior Notes Document (after the execution and delivery
thereof), the Intermediate Holdings Credit Documents or the Existing Senior Notes Documents permit
a lesser amount to be retained or reinvested, or have a shorter reinvestment period, than is
provided above with respect to any Asset Sales, then such lesser permitted retained or reinvestment
amount, and/or shorter reinvestment period, as the case may be, shall be applicable for purposes of
this Section 5.02(b) so long as such Permitted Senior Notes, Permitted Refinancing Senior Notes,
Intermediate Holdco Indebtedness or Existing Senior Notes, as the case may be, remain outstanding,
and (y) in no event shall Holdings or any of its Subsidiaries use any proceeds from any Asset Sale
to make any voluntary or mandatory repayment or prepayment of Permitted Senior Notes, Permitted
Refinancing Senior Notes, Holdings Senior Notes, Intermediate Holdco Indebtedness or Existing
Senior Notes and, before any such obligation to use such proceeds to make such repayment shall
arise, Holdings or the respective Subsidiary shall reinvest the respective amounts as permitted
above in this Section 5.02(b) or apply such proceeds as a mandatory prepayment in accordance with
requirements of Section 5.02(f).




          (c) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date
on or after the Initial Borrowing Date on which Holdings or any of its Subsidiaries receives any
cash proceeds from any incurrence of Indebtedness which is not permitted to be incurred by this
Agreement, an amount equal to 100% of the Net Cash Proceeds of the respective incurrence of
Indebtedness shall be applied as a mandatory repayment in accordance with the requirements of
Section 5.02(f).





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          (d) In addition to any other mandatory repayments pursuant to this Section 5.02, within 10
days following each date on or after the Initial Borrowing Date on which Holdings or any of its
Subsidiaries receives any proceeds from any Recovery Event (other than proceeds from Recovery
Events in an amount less than $5,000,000 per Recovery Event), an amount equal to 100% of the
proceeds of such Recovery Event (net of reasonable costs (including, without limitation, legal
costs and expenses) and taxes incurred in connection with such Recovery Event and the amount of
such proceeds required to be used to repay any Indebtedness (other than Indebtedness of the Lenders
pursuant to this Agreement) which is secured by the respective assets subject to such Recovery
Event) shall be applied as a mandatory repayment and/or commitment reduction in accordance with the
requirements of Section 5.02(f); provided that so long as no Specified Default and no Event
of Default then exists, such proceeds shall not be required to be so applied on such date to the
extent that an Authorized Officer of Holdings or the Borrower has delivered a certificate to the
Administrative Agent on or prior to such date stating that such proceeds shall be used (or
contractually committed to be used) within 360 days following the date of receipt of such proceeds
from such Recovery Event to replace or restore any properties or assets in respect of which such
proceeds were paid (which certificate shall set forth the estimates of the proceeds to be so
expended), and provided further, that (I) if all or any portion of such proceeds
are not so used (or contractually committed to be used) within such 360-day period, such remaining
portion shall be applied as a mandatory repayment and/or commitment reduction as provided above
(without giving effect to the immediately preceding proviso) and (II) if all or any portion of such
proceeds are not required to be applied on the last day of such 360-day period referred to in
clause (I) of this proviso because such amount is contractually committed to be used and then
either (A) subsequent to such date such contract is terminated or expires without such portion
being so used or (B) such contractually committed portion is not so used within six months after
the last day of such 360-day period referred to in clause (I) of this proviso, such remaining
portion, in the case of either of the preceding clauses (A) or (B), shall be applied as a mandatory
repayment and/or commitment reduction as provided above (without giving effect to the immediately
preceding proviso).




          (e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each
Excess Cash Payment Date, an amount equal to the remainder (if positive) of (x) the Applicable
Prepayment Percentage of the Excess Cash Flow for the relevant Excess Cash Flow Payment Period
minus (y) the aggregate amount of principal repayments of Term Loans (and Original Loans to
the extent (and only to the extent) that such repayments were made with internally generated funds
as a voluntary prepayment pursuant to Section 4.01 of the Term Credit Agreement (or the Original
Credit Agreement, as applicable) during the relevant Excess Cash Flow Payment Period, shall be
applied as a mandatory repayment and/or commitment reduction in accordance with the requirements of
Section 5.02(f).




          (f) Each amount required to be applied pursuant to Sections 5.02(b), (c), (d), and (e) in
accordance with this Section 5.02(f) shall be applied first, to repay outstanding Term
Loans under the Term Credit Agreement to the extent required thereunder, second, to cash
collateralize the Pre-Funded L/Cs, third to repay Swingline Loans, and fourth to
repay Revolving Loans in each case without any reduction in the Revolving Loan Commitment.




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          (g) With respect to each repayment of Loans required by this Section 5.02, the Borrower may
designate the Types of Loans of the respective Tranche which are to be repaid and, in the case of
Euro Rate Loans, the specific Borrowing or Borrowings of the respective Tranche pursuant to which
such Eurodollar Loans were made, provided that: (i) repayments of Euro Rate Loans pursuant
to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto
unless all Euro Rate Loans of the respective Tranche with Interest Periods ending on such date of
required repayment and all Base Rate Loans of the respective Tranche have been paid in full; (ii)
if any repayment of Euro Rate Loans made pursuant to a single Borrowing shall reduce the
outstanding Euro Rate Loans made pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount applicable thereto, such Borrowing shall be automatically converted into a
Borrowing of Base Rate Loans; and (iii) each repayment of any Loans made pursuant to a Borrowing
shall be applied pro rata among such Loans. In the absence of a designation by the
Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the
above, make such designation in its sole discretion.




          (h) In addition to any other mandatory repayments pursuant to this Section 5.02, (i) all then
outstanding Loans of a respective Tranche shall be repaid in full on the respective Maturity Date
for such Tranche of Loans, and (ii) unless the Required Lenders otherwise agree in writing, all
then outstanding Loans shall be repaid in full on the date on which a Change of Control occurs.




          (i) In addition to any other mandatory repayments pursuant to this Section 5.02, each
Swingline Loan will be repaid (for the avoidance of doubt, such repayment may be made with proceeds
from Revolving Loans) no later than the seventh day following the incurrence thereof;
provided that, if the seventh day is not a Business Day, the next Business Day.




          5.03. Method and Place of Payment; Payments and Computations; Maintenance of Accounts;
Statement of Accounts. (a) Except as otherwise specifically provided herein, all payments under this Agreement
and under any Note shall be made to the Administrative Agent for the account of the Lender or
Lenders entitled thereto not later than 12:00 Noon (New York time) on the date when due and shall
be made (x) in Dollars in immediately available funds at the Payment Office of the Administrative
Agent in respect of any obligation of the Borrower under this Agreement except as otherwise
provided in the immediately following clauses (y) and (z), (y) Euros in immediately available funds
at the Payment Office of the Administrative Agent, if such payment is made in respect of principal
of or interest on Euro Denominated Loans and (z) Sterling in immediately available funds at the
Payment Office of the Administrative Agent, if such payment is made in respect of principal of or
interest on Sterling Denominated Loans. Nothing in the succeeding clauses of this Section 5.03
shall affect or alter the Borrower’s obligations to the Administrative
Agent, the Collateral Agent, the Issuing Lenders and the Lenders with respect to all payments
otherwise required to be made by the Borrower in accordance with the terms of this Agreement and
the other Credit Documents. Whenever any payment to be made hereunder or under any Note shall be
stated to be due on a day which is not a Business Day, the due date thereof shall be extended to
the next succeeding Business Day and, with respect to payments of principal, interest shall be
payable at the applicable rate during such extension.





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          (b) Each of the Borrower and its Domestic Subsidiaries shall, along with the Collateral Agent
and certain financial institutions selected by the Borrower and acceptable to the Administrative
Agent (the “Collection Banks”), enter into on or prior to the Effective Date (or such later
date as provided in Section 13.19) and thereafter maintain separate Cash Management Control
Agreements. The Borrower and each of its Domestic Subsidiaries shall instruct all Account Debtors
of the Borrower and such Domestic Subsidiaries to remit all payments to the applicable “P.O. Boxes”
or “Lockbox Addresses” of the applicable Collection Bank with respect to all Accounts of such
Account Debtor, which remittances shall be collected by the applicable Collection Bank and
deposited in the applicable Collection Account. All amounts received by the Borrower, any of its
Domestic Subsidiaries and any Collection Bank in respect of any Account, in addition to all other
cash received from any other source, shall upon receipt be deposited into a Collection Account or
directly into the Core Concentration Account.




          (c) The Borrower and its respective Domestic Subsidiaries shall, along with the Collateral
Agent and each of those banks in which the Deposit Accounts (other than Excluded Deposit Accounts
but including all Collection Accounts and the Core Concentration Account) are maintained, enter
into on or prior to the Effective Date (or such later date as provided in Section 13.19) and
thereafter maintain separate Cash Management Control Agreements.




          (d) Upon the terms and subject to the conditions set forth in the Cash Management Control
Agreements, all collected amounts held in all of the Collection Accounts, with respect to the
Borrower and its Domestic Subsidiaries shall be wired by the close of business on each Business Day
into an account (the “Core Concentration Account”). Except as, and to the extent, all of
the Collection Accounts shall be “zero” balance accounts. So long as no Event of Default or
Compliance Period then exists, the Borrower and its Domestic Subsidiaries shall be permitted to
transfer cash from the Core Concentration Account to the Excluded Deposit Accounts to be used for
working capital and general corporate purposes, all subject to the requirements of this Section
5.03(d) and pursuant to procedures and arrangements to be determined by the Administrative Agent.
If an Event of Default or Compliance Period exists, all collected amounts held in the Core
Concentration Account shall be applied as provided in Section 5.03(e).




          (e) During the continuance of a Compliance Period, all collected amounts held in the Core
Concentration Account shall be distributed and applied on a daily basis in the following order (in
each case, to the extent the Administrative Agent has actual knowledge of the amounts owing or
outstanding as described below and any applications otherwise described in following clauses (x)
and (y), and after giving effect to the application of any such amounts (x) otherwise required to
be applied pursuant to Sections 5.02(b), (c), (d), (e), (f) or (g) or (y) constituting proceeds
from any Collateral otherwise required to be applied pursuant to the terms
of the respective Security Document): (1) first, to the payment (on a ratable basis)
of any outstanding Expenses actually due and payable to the Administrative Agent and/or the
Collateral Agent under any of the Credit Documents and to repay or prepay outstanding Swingline
Loans and Revolving Loans advanced by the Administrative Agent on behalf of the Lenders pursuant to
Sections 2.01(e) and 2.04(b); (2) second, to the extent all amounts referred to in
preceding clause (1) have been paid in full, to pay (on a ratable basis) all outstanding Expenses
actually due and




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payable to each Issuing Lender under any of the Credit Documents and to repay all
outstanding Unpaid Drawings and all interest thereon; (3) third, to the extent all amounts
referred to in preceding clauses (1) and (2) have been paid in full, to pay (on a ratable basis)
all accrued and unpaid interest actually due and payable on the Revolving Loans and all accrued and
unpaid Fees actually due and payable to the Administrative Agent, the Issuing Lenders and the
Lenders under any of the Credit Documents; (4) fourth, to the extent all amounts referred
to in preceding clauses (1) through (3), inclusive, have been paid in full, to repay (on a ratable
basis) the outstanding principal of Revolving Loans (whether or not then due and payable), and (5)
fifth, to the extent all amounts referred to in preceding clauses (1) through (4),
inclusive, have been paid in full, to pay (on a ratable basis) all other outstanding Obligations
then due and payable to the Administrative Agent, the Collateral Agent and the Lenders under any of
the Credit Documents.




          (f) Without limiting the provisions set forth in Section 13.15, the Administrative Agent shall
maintain an account on its books in the name of the Borrower (collectively, the “Credit
Account”) in which the Borrower will be charged with all loans and advances made by the Lenders
to the Borrower for the Borrower’s account, including the Loans, the Letter of Credit Outstandings,
and the Fees, Expenses and any other Obligations relating thereto. The Borrower will be credited,
in accordance with this Section 5.03, with all amounts received by the Lenders from the Borrower or
from others for its account, including, as set forth above, all amounts received by the
Administrative Agent and applied to the Obligations. In no event shall prior recourse to any
Accounts or other Collateral be a prerequisite to the Administrative Agent’s right to demand
payment of any Obligation upon its maturity. Further, the Administrative Agent shall have no
obligation whatsoever to perform in any respect any of the Borrower’s or any of its Subsidiaries’
contracts or obligations relating to the Accounts.




          (g) After the end of each month, the Administrative Agent shall send the Borrower and each
Lender a statement accounting for the charges, loans, advances and other transactions occurring
among and between the Administrative Agent, the Lenders, the Issuing Lenders and the Borrower
during that month. The monthly statements shall, absent manifest error, be final, conclusive and
binding on the Borrower and the Lenders.




          5.04. Net Payments. (a) All payments made by the Borrower hereunder and under any Note will be made without
setoff, counterclaim or other defense. Except as provided in Section 5.04(b), all such payments
will be made free and clear of, and without deduction or withholding for, any present or future
taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or
hereafter imposed by any jurisdiction or by any political sub-division or taxing authority thereof
or therein with respect to such payments (but excluding, except as provided in the second
succeeding sentence, any tax imposed on or measured by the net income or net profits of a Lender
pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in
which the principal office or applicable lending office of such Lender is located or any
subdivision thereof or therein) and all interest, penalties or similar liabilities with respect to
such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges (all such
non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to
collectively as “Taxes”). If any Taxes are so levied or imposed, the Borrower agrees to
pay the full amount of such Taxes, and such additional amounts as may be necessary so that every
payment of all amounts due under this Agreement or under any Note,




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after withholding or deduction
for or on account of any Taxes, will not be less than the amount provided for herein or in
such Note. If any amounts are payable in respect of Taxes pursuant to the preceding sentence, the
Borrower agrees to reimburse each Lender, upon the written request of such Lender, for taxes
imposed on or measured by the net income or net profits of such Lender pursuant to the laws of the
jurisdiction in which such Lender is organized or in which the principal office or applicable
lending office of such Lender is located or under the laws of any political subdivision or taxing
authority of any such jurisdiction in which such Lender is organized or in which the principal
office or applicable lending office of such Lender is located and for any withholding of taxes as
such Lender shall determine are payable by, or withheld from, such Lender, in respect of such
amounts so paid to or on behalf of such Lender pursuant to the preceding sentence and in respect of
any amounts paid to or on behalf of such Lender pursuant to this sentence. The Borrower will
furnish to the Administrative Agent within 45 days after the date the payment of any Taxes is due
pursuant to applicable law certified copies of tax receipts evidencing such payment by the
Borrower. The Borrower agrees to indemnify and hold harmless each Lender, and reimburse such
Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such
Lender.




          (b) Each Lender that is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes agrees to deliver to the Borrower and
the Administrative Agent on or prior to the Effective Date or, in the case of a Lender that is an
assignee or transferee of an interest under this Agreement pursuant to Section 2.13 or 13.04(b)
(unless the respective Lender was already a Lender hereunder immediately prior to such assignment
or transfer), on the date of such assignment or transfer to such Lender, (i) two accurate and
complete original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with
respect to a complete exemption under an income tax treaty) (or successor forms) certifying to such
Lender’s entitlement as of such date to a complete exemption from United States withholding tax
with respect to payments to be made under this Agreement and under any Note, or (ii) if the Lender
is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either
Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an
income tax treaty) (or any successor forms) pursuant to clause (i) above, (x) a certificate
substantially in the form of Exhibit D (any such certificate, a “Section 5.04(b)(ii)
Certificate”) and (y) two accurate and complete original signed copies of Internal Revenue
Service Form W-8BEN (with respect to the portfolio interest exemption) (or successor form)
certifying to such Lender’s entitlement as of such date to a complete exemption from United States
withholding tax with respect to payments of interest to be made under this Agreement and under any
Note. In addition, each Lender agrees that from time to time after the Effective Date, when a
lapse in time or change in circumstances renders the previous certification obsolete or inaccurate
in any material respect, such Lender will deliver to the Borrower and the Administrative Agent two
new accurate and complete original signed copies of Internal Revenue Service Form W-8ECI, Form
W-8BEN (with respect to the benefits of any
income tax treaty), or Form W-8BEN (with respect to the portfolio interest exemption) and a
Section 5.04(b)(ii) Certificate, as the case may be, and such other forms as may be required in
order to confirm or establish the entitlement of such Lender to a continued exemption from or
reduction in United States withholding tax with respect to payments under this Agreement and any
Note, or such Lender shall immediately notify the Borrower and the Administrative Agent of its
inability to deliver any such Form or Certificate, in which case such Lender shall not be




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required
to deliver any such Form or Certificate pursuant to this Section 5.04(b). Notwithstanding anything
to the contrary contained in Section 5.04(a), but subject to Section 13.04(b) and the immediately
succeeding sentence, (x) the Borrower shall be entitled, to the extent it is required to do so by
law, to deduct or withhold income or similar taxes imposed by the United States (or any political
subdivision or taxing authority thereof or therein) from interest, Fees or other amounts payable
hereunder for the account of any Lender which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent that
such Lender has not provided to the Borrower U.S. Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding and (y) the Borrower shall not be obligated
pursuant to Section 5.04(a) to gross-up payments to be made to a Lender in respect of income or
similar taxes imposed by the United States if (I) such Lender has not provided to the Borrower the
Internal Revenue Service Forms required to be provided to the Borrower pursuant to this Section
5.04(b) or (II) in the case of a payment, other than interest, to a Lender described in clause (ii)
above, to the extent that such forms do not establish a complete exemption from withholding of such
taxes. Notwithstanding anything to the contrary contained in the preceding sentence or elsewhere
in this Section 5.04 and except as set forth in Section 13.04(b), the Borrower agrees to pay any
additional amounts and to indemnify each Lender in the manner set forth in Section 5.04(a) (without
regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of
any amounts deducted or withheld by it as described in the immediately preceding sentence as a
result of any changes that are effective after the Effective Date in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to
the deducting or withholding of such Taxes.




          SECTION 6. Conditions Precedent to Credit Events on the Initial Borrowing Date. The obligation of each Lender to make Loans, and the obligation of each Issuing Lender to
issue Letters of Credit (including any Existing Letter of Credit deemed issued on the Effective
Date as contemplated by Section 3.01(c)), on the Initial Borrowing Date, is subject at the time of
the making of such Loans or the issuance of such Letters of Credit to the satisfaction of the
following conditions:




          6.01. Effective Date; Notes. On or prior to the Initial Borrowing Date, (i) the Effective Date shall have occurred as
provided in Section 13.10 and (ii) there shall have been delivered to the Administrative Agent for
the account of each of the Lenders that has requested same the appropriate Revolving Note executed
by the Borrower and, if requested by the Swingline Lender, the Swingline Note executed by the
Borrower, in each case in the amount, maturity and as otherwise provided herein.




          6.02. Officer’s Certificate. On the Initial Borrowing Date, the Administrative Agent shall have received a certificate,
dated the Initial Borrowing Date and signed on behalf of the Borrower by the Chairman of the Board,
the Chief Executive Officer, the President or any Vice President of the Borrower, certifying on
behalf of the Borrower that all of the conditions in Sections 6.06 through 6.09, inclusive, and
7.01 have been satisfied on such date.




          6.03. Opinions of Counsel. On the Initial Borrowing Date, the Administrative Agent shall have received (i) from Paul,
Hastings, Janofsky & Walker LLP, special counsel to




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the Credit Parties, an opinion addressed to the
Administrative Agent, the Collateral Agent and each of the Lenders and dated the Initial Borrowing
Date covering the matters set forth in Exhibit E and such other matters incident to the
transactions contemplated herein as the Administrative Agent may reasonably request and (ii) from
local counsel in each state in which a Mortgaged Property is located, an opinion in form and
substance reasonably satisfactory to the Collateral Agent addressed to the Collateral Agent in its
capacity as such, and each of the Lenders, dated the Initial Borrowing Date and covering such
matters incident to the transactions contemplated herein as the Collateral Agent may reasonably
request including but not limited to the enforceability of each Mortgage.




          6.04. Company Documents; Proceedings; etc. (a) On the Initial Borrowing Date, the Administrative Agent shall have received a certificate
from each Credit Party, dated the Initial Borrowing Date, signed by the Chairman of the Board, the
Chief Executive Officer, the President or any Vice President of such Credit Party, and attested to
by the Secretary or any Assistant Secretary of such Credit Party, in the form of Exhibit F
with appropriate insertions, certifying that copies of the certificate or articles of incorporation
and by-laws (or other equivalent organizational documents) filed with the SEC are true and correct,
as applicable, of such Credit Party and the resolutions of such Credit Party referred to in such
certificate, and each of the foregoing shall be in form and substance reasonably acceptable to the
Administrative Agent.




          (b) On the Initial Borrowing Date, all company and legal proceedings and all instruments and
agreements in connection with the transactions contemplated by this Agreement and the other
Documents shall be reasonably satisfactory in form and substance to the Administrative Agent, and
the Administrative Agent shall have received all information and copies of all documents and
papers, including records of company proceedings, governmental approvals, good standing
certificates and bring-down telegrams or facsimiles, if any, which the Administrative Agent
reasonably may have requested in connection therewith, such documents and papers where appropriate
to be certified by proper company or Governmental Authorities.




          (c) On the Initial Borrowing Date and after giving effect to the Transaction, the capital
structure (including, without limitation, the terms of any capital stock, options, warrants or
other securities issued by Holdings and its Subsidiaries) and management of Holdings, the Borrower
and their respective Subsidiaries shall be in form and substance reasonably satisfactory to the
Agents.




          6.05. Shareholders’ Agreements; Management Agreements; Existing Indebtedness Agreements;
and Tax Allocation Agreements. (a) On or prior to the Initial Borrowing Date, there shall have been made available to the
Administrative Agent by the Borrower true and correct copies of the following documents as same
will be in effect on the Initial Borrowing Date after the consummation of the Transaction,
certified as such by the Borrower (in the case of the agreements referred to in clause (i), (ii)
and (iv) below):





     (i) all written agreements (including, without limitation, shareholders’ agreements,
subscription agreements and registration rights agreements) entered into by Holdings or any
of its Subsidiaries governing the terms and relative rights of its capital



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stock or other
Equity Interests and any agreements entered into by shareholders relating to any such entity
with respect to its capital
stock or other Equity Interests (collectively, the
“Shareholders’ Agreements”);




     (ii) all material written agreements (including employment agreements but limited to
those of executive management and division presidents) entered into by Holdings or any of
its Subsidiaries with respect to the management of Holdings or any of its Subsidiaries after
giving effect to the Transaction (including consulting agreements and other management
advisory agreements) (collectively, the “Management Agreements”);




     (iii) all agreements evidencing or relating to any material Existing Indebtedness of
Holdings or any of its Subsidiaries (collectively, the “Existing Indebtedness
Agreements”); and




     (iv) any tax sharing or tax allocation agreements entered into by Holdings or any of
its Subsidiaries (collectively, the “Tax Allocation Agreements”);


all of which Shareholders’ Agreements, Management Agreements, Existing Indebtedness Agreements and
Tax Allocation Agreements shall be in form and substance reasonably satisfactory to the Agents and
shall be in full force and effect on the Initial Borrowing Date.




          6.06. Outstanding Indebtedness and Preferred Equity. On the Initial Borrowing Date and after giving effect to the consummation of the
Transaction (including the Intermediate Holdco Prepayment Consummation as if the same had occurred
on such date), Holdings and its Subsidiaries shall have no outstanding Preferred Equity or
Indebtedness, except for (i) Indebtedness pursuant to or in respect of the Credit Documents, (ii)
Indebtedness pursuant to or in respect of the Existing Senior Notes Documents in an aggregate
outstanding principal amount not to exceed $1,125,000,000, (iii) intercompany Indebtedness incurred
by the Bermuda Company pursuant to the Intercompany Distribution Transactions, (iv) Intercompany
Scheduled Existing Indebtedness (it being understood and agreed that, for the purposes of this
Section 6.06, such Intercompany Scheduled Existing Indebtedness shall be determined as of February
25, 2006) (v) existing Indebtedness of the Borrower and its Subsidiaries of the type described in
clauses (viii), (xiii) and (xviii) of Section 10.04(b) in an aggregate principal amount not to
exceed the principal amount of such
Indebtedness permitted by such Section 10.04, (vi) Synthetic Lease obligations arising under
the lease entered into in connection with the Sale-Leaseback Transaction, (vii) Indebtedness
pursuant to the Existing Credit Agreement and (viii) such other existing indebtedness of Holdings
and its Subsidiaries, if any, as shall be permitted by the Administrative Agent and Required
Lenders to remain outstanding (all of which Indebtedness described in this clause (viii) (other
than immaterial Contingent Obligations of Subsidiaries of the Borrower that represent guaranties of
obligations other than Indebtedness) shall be required to be specifically listed as Third Party
Scheduled Existing Indebtedness on Part A of Schedule IV); for the avoidance of doubt, preceding
clauses (iv), (v), (vi) and (viii) shall in no event include any Indebtedness under, or with
respect to, the HQ Lease Agreements (as defined in the Original U.S. Security Agreement (as defined
in the Term Credit Agreement)), which Indebtedness has been paid in full (and related commitments
with respect thereto




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terminated) prior to the Effective Date. On and as of the Initial Borrowing
Date, all Indebtedness described in the immediately preceding sentence shall remain outstanding
after giving effect to the Transaction and the other transactions contemplated hereby without any
breach, required repayment, required offer to purchase, default, event of default or termination
rights existing thereunder or arising as a result of the Transaction and the other transactions
contemplated hereby and there shall not be any amendments or modifications to the Existing
Indebtedness Agreements (other than as requested or approved by the Agents and the Required
Lenders). On and as of the Initial Borrowing Date, the Agents and the Required Lenders shall be
satisfied with the amount of and the terms and conditions of all Indebtedness described above in
this Section 6.06.




          6.07. Refinancing; Original Credit Agreement; etc. (a) On the Initial Borrowing Date (and concurrently with the Credit Events occurring on such
date), Intermediate Holdco shall have (i) prepaid all of the outstanding Intermediate Holdco
Indebtedness (other than indemnities not then due and payable) (including, without limitation, the
call or other premiums payable in connection therewith and all accrued and unpaid interest thereon
up to and including the Intermediate Holdco Prepayment Date) in accordance with, and pursuant to,
the terms of the Intermediate Holdco Credit Agreement and the other Intermediate Holdco Credit
Documents (and shall have obtained all necessary amendments or waivers required thereunder to give
effect to the foregoing, on terms satisfactory to the Administrative Agent) or (ii) (A) submitted
to the Agent (as defined in the Intermediate Holdco Credit Agreement) an irrevocable notice of
prepayment (the “Intermediate Holdco Irrevocable Prepayment Notice”) of all of the
outstanding Intermediate Holdco Indebtedness (other than customary indemnities) pursuant to, and in
accordance with, the terms of the Intermediate Holdco Credit Agreement (including, without
limitation, Section 4.01 thereof) and the other Intermediate Holdco Credit Documents (with a copy
of such notice to the Administrative Agent and the Intermediate Holdco Paying Agent (as defined
below)) specifying that such prepayment shall occur on a fixed date (which shall be a Business Day)
no later than on the 35th day following the mailing of such Intermediate Holdco Irrevocable
Prepayment Notice (the “Intermediate Holdco Prepayment Date”), (B) deposited with DBNY, as
paying agent (in such capacity, and including any successor appointed pursuant to Section 12.10,
the “Intermediate Holdco Paying Agent”), amounts borrowed under the Term Credit Agreement
and this Agreement sufficient to, and for the exclusive purpose,
of prepaying all of the
outstanding Intermediate Holdco Indebtedness on the Intermediate Holdco Prepayment Date (including,
without limitation, the call or other premiums payable in connection therewith and all accrued
and unpaid interest thereon up to and including the Intermediate Holdco Prepayment Date) in
accordance with, and pursuant to, the terms of the Intermediate Holdco Credit Documents
(collectively, the “Intermediate Holdco Prepayment Funds”), on terms and pursuant to escrow
arrangements reasonably satisfactory to the Administrative Agent and (C) concurrently with the
deposit of the Intermediate Holdco Prepayment Funds, deliver to the Intermediate Holdco Paying
Agent (with a copy to the Administrative Agent), a written irrevocable letter of instruction (in
form and substance reasonably satisfactory to the Administrative Agent), executed by Intermediate
Holdco and Corporate Holdco, directing the Intermediate Holdco Paying Agent to (I) hold the
Intermediate Holdco Prepayment Funds in escrow until the Intermediate Holdco Prepayment Date and
(II) release, disburse and apply the Intermediate Holdco Prepayment Funds on the Intermediate
Holdco Prepayment Date, in accordance with the Intermediate Holdco Credit Agreement for the
exclusive purpose of




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prepaying all of the outstanding Intermediate Holdco Indebtedness on such date
(the foregoing, collectively, the “Intermediate Holdco Refinancing”). On the Initial
Borrowing Date, (x) the Administrative Agent shall have received true and correct copies of all
Refinancing Documents relating to the Intermediate Holdco Refinancing, certified as such by an
appropriate officer of the Borrower and (y) all terms and conditions of the Intermediate Holdco
Refinancing and the Refinancing Documents governing the same shall be reasonably satisfactory to
the Administrative Agent.




          (b) On the Initial Borrowing Date, Holdings, Intermediate Holdco and the Borrower shall have
entered into the Term Credit Agreement and incurred the Term Loans thereunder and such agreement
shall be in full force and effect.




          6.08. Adverse Change, Approvals. (a) Since December 31, 2005, nothing shall have occurred (and neither the Administrative
Agent nor any Lender shall have become aware of any facts or conditions not previously known) which
the Administrative Agent or the Required Lenders shall determine has had, or could reasonably be
expected to have, individually or in the aggregate, (i) a Material Adverse Effect or (ii) a
material adverse effect on the Transaction.




          (b) On or prior to the Initial Borrowing Date (i) all necessary governmental (domestic and
foreign), regulatory and third party approvals and/or consents in connection with any Existing
Indebtedness, the Transaction, the transactions contemplated by the Documents and otherwise
referred to herein or therein shall have been obtained and remain in full force and effect as of
the Initial Borrowing Date and evidence thereof shall have been provided to the Administrative
Agent, and (ii) all applicable waiting periods shall have expired without any action being taken by
any competent authority which restrains, prevents or imposes materially adverse conditions upon the
consummation of the Transaction, the making of the Loans and the transactions contemplated by the
Documents or otherwise referred to herein or therein. Additionally, there shall not exist any
judgment, order, injunction or other restraint issued or filed or a hearing seeking injunctive
relief or other restraint pending or notified prohibiting or imposing materially adverse conditions
upon, or materially delaying, or making economically unfeasible, the consummation of the
Transaction or the making of the Loans or the other transactions contemplated by the Documents or
otherwise referred to herein or therein.




          6.09. Litigation. On the Initial Borrowing Date, there shall be no actions, suits, proceedings or
investigations pending or threatened (a) with respect to the Transaction or any documentation
executed in connection therewith (including any Credit Document) or the transactions contemplated
hereby and thereby, (b) with respect to any Existing Indebtedness or (c) which any Agent or the
Required Lenders shall determine has had, or could reasonably be expected to have, individually or
in the aggregate, (i) a Material Adverse Effect or (ii) a material adverse effect on the
Transaction.




          6.10. Subsidiaries Guaranty; Intercompany Subordination Agreement. (a) On the Initial Borrowing Date, each Subsidiary Guarantor shall have duly authorized,
executed and delivered the Subsidiaries Guaranty in the form of Exhibit G (as amended,
modified and/or




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supplemented from time to time, the “Subsidiaries Guaranty”), and the
Subsidiaries Guaranty shall be in full force and effect.




          (b) On the Initial Borrowing Date, each Credit Party and each other Subsidiary of Holdings
which is an obligee or obligor with respect to any Intercompany Debt shall have duly authorized,
executed and delivered the Intercompany Subordination Agreement in the form of Exhibit H
hereto (as amended, modified, restated and/or supplemented from time to time, the “Intercompany
Subordination Agreement”), and the Intercompany Subordination Agreement shall be in full force
and effect.




          6.11. Pledge Agreement. In order to create in favor of Collateral Agent, for the benefit of the ABL Secured
Parties, a valid, perfected Second Priority security interest in the personal property TL Priority
Collateral, and a valid, perfected First Priority security interest in the personal property ABL
Priority Collateral, on the Initial Borrowing Date, each Credit Party shall have duly authorized,
executed and delivered the Pledge Agreement in the form of Exhibit I (as amended, modified,
restated and/or supplemented from time to time, the “Pledge Agreement”) and shall have
delivered to the Term Collateral Agent, as bailee under the Intercreditor Agreement, all of the
Pledge Agreement Collateral, as applicable, referred to therein and then owned by such Credit
Party, (x) endorsed in blank in the case of promissory notes constituting Pledge Agreement
Collateral and (y) together with executed and undated endorsements for transfer in the case of
Equity Interests constituting certificated Pledge Agreement Collateral, along with evidence that
all other actions necessary or, in the reasonable opinion of the Collateral Agent, desirable, to
perfect the security interests purported to be created by the Pledge Agreement have been taken, and
the Pledge Agreement shall be in full force and effect.




          6.12. Security Agreement. In order to create in favor of Collateral Agent, for the benefit of the ABL Secured
Parties, a valid, perfected Second Priority security interest in the personal property TL Priority
Collateral, and a valid, perfected First Priority security interest in the personal property ABL
Priority Collateral, on the Initial Borrowing Date, each Credit Party shall have duly authorized,
executed and delivered the Security Agreement in the form of Exhibit J (as amended,
modified, restated and/or supplemented from time to time, the “Security Agreement”)
covering all of such Credit Party’s Security Agreement Collateral, together with:





     (i) proper financing statements (Form UCC-1 or the equivalent) fully executed for
filing under the UCC or other appropriate filing offices of each jurisdiction as may be
necessary or, in the reasonable opinion of the Collateral Agent, desirable, to perfect the
security interests purported to be created by the Security Agreement;




     (ii) evidence of the completion of all other recordings and filings of, or with respect
to, the Security Agreement as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable, to perfect the security interests intended to be created by the
Security Agreement; and




     (iii) evidence that all other actions necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect and protect the security interests purported to be



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created by the Security Agreement have been taken, and the Security Agreement shall be in
full force and effect.



          6.13. Mortgage; Title Insurance; Landlord Waivers; etc. On the Initial Borrowing Date, the Collateral Agent shall have received:





     (i) fully executed counterparts of Mortgages and corresponding UCC Fixture Filings, in
form and substance reasonably satisfactory to the Collateral Agent, which Mortgages and UCC
Fixture Filings shall cover each Real Property owned or leased by the Credit Agreement
Parties and designated as a “Mortgaged Property” on Schedule V hereto, together with
evidence that counterparts of such Mortgages and UCC Fixture Filings have been delivered to
the title insurance company insuring the Lien of such Mortgage for recording;




     (ii) a Mortgage Policy relating to each Mortgage of the Mortgaged Property referred to
above, issued by a title insurer reasonably satisfactory to the Collateral Agent, in an
insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that
the Mortgage on each such Mortgaged Property is a valid and enforceable second priority
mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances
except Permitted Encumbrances, with each such Mortgage Policy (1) to be in form and
substance reasonably satisfactory to the Collateral Agent, (2) to include, to the extent
available in the applicable jurisdiction, supplemental endorsements (including, without
limitation, endorsements relating to future advances under this Agreement and the Loans,
usury, first loss, last dollar, tax parcel, subdivision, zoning, contiguity, variable rate,
doing business, public road access, survey, environmental lien, mortgage tax and so-called
comprehensive coverage over covenants and restrictions and for any other matters that the
Collateral Agent in its discretion may reasonably request), (3) to not include the
“standard” title exceptions, a survey exception or an exception for mechanics’ liens, and
(4) to provide for affirmative insurance and such reinsurance as the Collateral Agent in its
discretion may reasonably request;




     (iii) to induce the title company to issue the Mortgage Policies referred to in
subsection (ii) above, such affidavits, certificates, information and instruments of
indemnification (including, without limitation, a so-called “gap” indemnification) as shall
be required by the Title Company, together with payment by the Borrower of all Mortgage
Policy premiums, search and examination charges, mortgage recording taxes, fees, charges,
costs and expenses required for the recording of such Mortgages and issuance of such
Mortgage Policies;




     (iv) to the extent obtainable on or prior to the Initial Borrowing Date, fully executed
Landlord Personal Property Collateral Access Agreements and/or bailee agreements in respect
of those Leaseholds of Holdings or any of its Domestic Subsidiaries designated as
“Leaseholds Subject to Landlord Waivers” on Schedule V, each of which Landlord Personal
Property Collateral Access Agreements and/or bailee agreements shall be in form and
substance reasonably satisfactory to the Collateral Agent; and





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     (v) to the extent requested by the Administrative Agent, copies of all leases in which
Holdings or any of its Domestic Subsidiaries holds the lessor’s interest or other agreements
relating to possessory interests, if any; provided that, to the extent any of the
foregoing affect such Mortgaged Property, to the extent requested by the Administrative
Agent, such agreements shall be subordinate to the Lien of the Mortgage to be recorded
against such Mortgaged Property, either expressly by its terms or pursuant to a
subordination, non-disturbance and attornment agreement (with any such agreement being
reasonably acceptable to the Administrative Agent).



          6.14. [Intentionally omitted.]



          6.15. Financial Statements; Pro Forma Balance Sheet; Projections. On or prior to the Initial Borrowing Date, the Administrative Agent shall have received
true and correct copies of the historical financial statements, the pro forma
financial statements and the Projections referred to in Sections 9.01, which historical financial
statements, pro forma financial statements and Projections shall be in form and
substance reasonably satisfactory to the Administrative Agent and the Required Lenders.



          6.16. Solvency Certificate; Insurance Certificates, etc. On the Initial Borrowing Date, the Administrative Agent shall have received:




     (i) a solvency certificate from the chief financial officer of Holdings in the form of
Exhibit L hereto dated the Initial Borrowing Date, and supporting the conclusion
that, after giving effect to the Transaction and the incurrence of all financings
contemplated herein, the Borrower (on a stand-alone basis), the Borrower and its
Subsidiaries (on a consolidated basis), and Holdings and its Subsidiaries (on a consolidated
basis), in each case, are not insolvent and will not be rendered insolvent by the
indebtedness incurred in connection herewith, will not be left with unreasonably small
capital with which to engage in its or their respective businesses and will not have
incurred debts beyond its or their ability to pay such debts as they mature and become due;




     (ii) certificates of insurance complying with the requirements of Section 9.03 for the
business and properties of Holdings and its Subsidiaries, in form and substance reasonably
satisfactory to the Administrative Agent and naming the Collateral Agent as an additional
insured and/or as loss payee, and stating that such insurance shall not be canceled or
materially revised without at least 30 days’ prior written notice by the insurer to the
Collateral Agent; and




     (iii) if requested by the Administrative Agent, environmental and hazardous substance
analyses with respect to the Real Property of Holdings and its Subsidiaries in scope, form
and substance reasonably acceptable to the Administrative Agent and the



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Required Lenders, together with a satisfactory reliance letter addressed to the
Administrative Agent and the Lenders.



          6.17. Fees, etc. On the Initial Borrowing Date, the Borrower shall have paid to the Administrative Agent (and
its relevant affiliates) and each Lender all costs, fees and expenses (including, without
limitation, legal fees and expenses) and other compensation contemplated hereby payable to the
Administrative Agent or such Lender to the extent then due.



          6.18. Appraisal and Collateral Examination. On or prior to the Initial Borrowing Date, Collateral Agent shall have received (x) an
appraisal of the Inventory of the Borrower and the Wholly-Owned Subsidiary Guarantors and (y) a collateral examination of the Inventory and Accounts of the Borrower and
Wholly-Owned Subsidiary Guarantor, in each case, in scope, and from a third-party appraiser and a
third-party consultant, respectively, reasonably satisfactory to Administrative Agent, and the
results of such appraisal and collateral examination shall be in form and substance reasonably
satisfactory to Administrative Agent.



          6.19. Borrowing Base Certificate; Liquidity. (a) The Administrative Agent shall have received the initial Borrowing Base Certificate
pursuant to Section 9.01(l), with customary supporting documentation and supplemental reporting to
be agreed upon between Administrative Agent and the Borrower.



          (b) On the Initial Borrowing Date, after giving effect to Transactions (and the Credit Events
hereunder), the Borrowing Availability shall equal or exceed $75,000,000.



          In determining the satisfaction of the conditions specified in this Section 6, (x) to the
extent any item is required to be satisfactory to any Lender, such item shall be deemed
satisfactory to each Lender which has not notified the Administrative Agent in writing prior to the
occurrence of the Initial Borrowing Date that the respective item or matter does not meet its
satisfaction and (y) in determining whether any Lender is aware of any fact, condition or event
that has occurred and which would reasonably be expected to have a Material Adverse Effect or a
material adverse effect of the type described in Section 6.07, each Lender which has not notified
the Administrative Agent in writing prior to the occurrence of the Initial Borrowing Date of such
fact, condition or event shall be deemed not to be aware of any such fact, condition or event on
the Initial Borrowing Date. Upon the Administrative Agent’s good faith determination that the
conditions specified in this Section 6 have been met (after giving effect to the preceding
sentence), then the Initial Borrowing Date shall have been deemed to have occurred, regardless of
any subsequent determination that one or more of the conditions thereto had not been met (although
the occurrence of the Initial Borrowing Date shall not release Holdings or the Borrower from any
liability for failure to satisfy one or more of the applicable conditions contained in this Section
6).



          SECTION 7. Conditions Precedent to All Credit Events.



          The obligation of each Lender to make Loans (including Loans made on the Initial Borrowing
Date), and the obligation of each Issuing Lender to issue Letters of Credit (including Letters of
Credit issued, or Existing Letters of Credit deemed issued, on the Initial



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Borrowing Date), is subject, at the time of each such Credit Event (except as hereinafter indicated), to the
satisfaction of the following conditions:



          7.01. Limitation on Cash on Hand. The aggregate amount of Unrestricted Cash owned or held by the Borrower and its Domestic
Subsidiaries (determined after giving pro forma effect to the making of each such
Revolving Loan and/or Swingline Loan and the application of proceeds therefrom and from any
other Unrestricted Cash on hand (to the extent such proceeds and/or other Unrestricted Cash
are actually utilized by the Borrower and/or any other Subsidiary of Holdings on the date of the
incurrence of the respective such Revolving Loan and/or Swingline Loan for a permitted purpose
under this Agreement other than an investment in Cash Equivalents)) shall not exceed $25,000,000
for more than five consecutive Business Days (for purposes of Unrestricted Cash denominated in a
currency other than Dollars, taking the Dollar Equivalent of such Unrestricted Cash as determined
on the date of the incurrence of the respective such Revolving Loan and/or Swingline Loan).



          7.02. No Default; Representations and Warranties. At the time of each such Credit Event and also after giving effect thereto (i) there shall
exist no Default or Event of Default and (ii) all representations and warranties contained herein
and in the other Credit Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on the date of such Credit Event
(it being understood and agreed that any representation or warranty which by its terms is made as
of a specified date shall be required to be true and correct in all material respects only as of
such specified date).



          7.03. Notice of Borrowing; Letter of Credit Request. (a) Prior to the making of each Loan (other than a Swingline Loan or a Revolving Loan made
pursuant to a Mandatory Borrowing), the Administrative Agent shall have received a Notice of
Borrowing meeting the requirements of Section 2.03(a). Prior to the making of each Swingline Loan,
the Swingline Lender shall have received the notice referred to in Section 2.03(b)(i).



          (b) Prior to the issuance of each Letter of Credit (other than the Existing Letters of
Credit), the Administrative Agent and the respective Issuing Lender shall have received a Letter of
Credit Request meeting the requirements of Section 3.03(a).



          The acceptance of the benefits of each Credit Event shall constitute a representation and
warranty by each Credit Agreement Party to the Administrative Agent and
each of the Lenders that all the conditions specified in Section 6 (with respect to Credit
Events on the Initial Borrowing Date) and in this Section 7 (with respect to Credit Events on or
after the Initial Borrowing Date) and applicable to such Credit Event are satisfied as of that
time. All of the Notes, certificates, legal opinions and other documents and papers referred to in
Section 6 and in this Section 7, unless otherwise specified, shall be delivered to the
Administrative Agent at the Notice Office for the account of each of the Lenders and, except for
the Notes, in sufficient counterparts or copies for each of the Lenders and shall be in form and
substance reasonably satisfactory to the Administrative Agent and the Required Lenders.



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          SECTION 8. Representations, Warranties and Agreements.



          In order to induce the Lenders to enter into this Agreement, to make (and/or continue) the
Loans and issue and/or participate in the Letters of Credit as provided for herein, each Credit
Agreement Party makes the following representations, warranties and agreements with the Lenders, in
each case after giving effect to the Transaction, all of which shall survive the execution and
delivery of this Agreement, the making of the Loans and the issuance (or deemed issuance) of the
Letters of Credit a (with the occurrence of the Effective Date and each Credit Event on or after
the Effective Date being deemed to constitute a representation and warranty that the matters
specified in this Section 8 are true and correct in all material respects on and as of the
Effective Date and on and as of the date of each such Credit Event, unless stated to relate to a
specific earlier date in which case such representations and warranties shall be true and correct
in all material respects as of such earlier date):



          8.01. Company Status. Each of Holdings and each of its Subsidiaries (i) is a duly organized and validly existing
Company in good standing (or its equivalent) under the laws of the jurisdiction of its
organization, (ii) has the Company power and authority to own its property and assets and to
transact the business in which it is engaged and presently proposes to engage and (iii) is duly
qualified and is authorized to do business and is in good standing (or its equivalent) in all
jurisdictions where it is required to be so qualified (or its equivalent) and where the failure to
be so qualified has had, or could reasonably be expected to have, a Material Adverse Effect.



          8.02. Company Power and Authority. Each Credit Party and each Subsidiary thereof has the Company power and authority to
execute, deliver and carry out the terms and provisions of the Documents to which it is a party and
has taken all necessary Company action to authorize the execution, delivery and performance of the
Documents to which it is a party. Each Credit Party and each Subsidiary thereof has duly executed
and delivered each Document to which it is a party and each such Document constitutes the legal,
valid and binding obligation of such Credit Party enforceable in accordance with its terms, except
to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws generally affecting creditors’ rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law).



          8.03. No Violation. (a) Neither the execution, delivery or performance by any Credit Party or any Subsidiary
thereof of the Documents to which it is a party, nor compliance by any Credit Party or any such
Subsidiary with the terms and provisions thereof, nor the consummation of the transactions
contemplated herein or therein, (i) will contravene any material provision of any applicable law,
statute, rule or regulation, or any order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict or be inconsistent with or result in any breach of, any of the
terms, covenants, conditions or provisions of, or constitute a default under, or (other than
pursuant to the Security Documents) result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the material property or assets of Holdings or any of its
Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement,
credit agreement or any other material agreement, contract or instrument to which Holdings or
any of its Subsidiaries is a party or by which it or any of its



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material property or assets are
bound or to which it may be subject (including, without limitation, the Existing Senior Notes
Documents, the Intermediate Holdco Senior Notes Indenture, the other Existing Indebtedness
Agreements, and, on and after the execution and delivery thereof, the Holdings Senior Notes
Indenture, any Wellbeing Project Financing Document, any Permitted Senior Notes Indenture and any
Permitted Refinancing Senior Notes Document) or (iii) will violate any provision of the certificate
of incorporation, by-laws, certificate of partnership, partnership agreement, certificate of
limited liability company, limited liability company agreement or equivalent organizational
document, as the case may be, of Holdings or any of its Subsidiaries.



          (b) Without limiting the generality of the foregoing in Section 8.03(a):




     (i) this Agreement, together with the Term Credit Agreement, constitute (individually
and collectively) the “Credit Agreement” under, and as defined in, each Existing Senior
Notes Indenture;




     (ii) the incurrence by the Borrower of the Loans and other Indebtedness hereunder under
on the Initial Borrowing Date and on the date of each subsequent Credit Event will not
violate any of (I) Section 1014 of the Existing 2009 Senior Notes Indenture or any other
provision thereof, (II) Section 4.9 of the Existing 2010 Senior Notes Indenture or any other
provision thereof, (III) Section 4.9 of the Existing 2011 Senior Notes Indenture or any
other provision thereof, or (IV) Section 1014 of the Existing 2013 Senior Notes Indenture or
any other provision thereof and, without limiting the foregoing, on the Initial Borrowing
Date, neither the incurrence of any Loans to be incurred on such date, nor the incurrence of
Indebtedness in the full amount of the commitments available under the Term Credit Agreement
and pursuant to the Total Credit-Linked Commitment (as if, in each case, such commitments
were fully utilized on such date), would violate any of the sections specifically set forth
above (or any other provision) of the Existing Senior Notes Indentures;




     (iii) on the Initial Borrowing Date, (x) all Subsidiary Guarantors and (y) all
Borrowers (as defined in, and pursuant to, the Term Credit Agreement), are “Restricted
Subsidiaries” under, and as defined in, each Existing Senior Notes Indenture and have
executed and delivered guaranties in accordance with the requirements of the respective
Existing Senior Notes Indentures; and




     (iv) for the purpose of the definition of “Permitted Indebtedness” under, and as
defined in, each Existing Senior Notes Indenture, on the Initial Borrowing Date no repayment
of term loans and/or permanent commitment reductions in the revolving credit portion of the
Credit Agreement (as defined therein) has theretofore occurred (whether prior to, or on, the
Initial Borrowing Date) which has resulted in any reduction to the maximum aggregate amount
of Indebtedness permitted to be incurred pursuant to, or under, the Credit Agreement (as
defined therein) in accordance with the applicable Existing Senior Notes Indenture.



          8.04. Litigation. There are no actions, suits, proceedings or investigations pending or, to the knowledge of
any Senior Officer, threatened (i) with respect to any Credit



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Document, (ii) with respect to the Transaction or any other Document or (iii) that have had, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. Additionally, there does not exist
any judgment, order or injunction prohibiting or imposing material adverse conditions upon the
occurrence of any Credit Event.



          8.05. Use of Proceeds; Margin Regulations. (a) All proceeds of Revolving Loans and Swingline Loans shall be used for the Borrower’s
and its Subsidiaries’ ongoing working capital requirements and general corporate purposes
(including (x) to effect Permitted Acquisitions (to the extent permitted by this Agreement) and (y)
to (i) make intercompany loans to Intermediate Holdco pursuant to Section 10.05(xxi) to be utilized
for the purposes described in subclause (v) thereof and/or (ii) pay Dividends to Intermediate
Holdco pursuant to Section 10.06(ix) to be utilized for the purposes described in subclause (v)
thereof but (z) excluding payments in connection with the Transaction, except as set forth in the
immediately succeeding proviso).



          (b) At the time of each Credit Event occurring on or after the Effective Date, the aggregate
value of all Margin Stock (other than treasury stock) owned by Holdings and its Subsidiaries (for
such purpose, using the initial purchase price paid by Holdings or such Subsidiary for the
respective shares of Margin Stock) does not exceed $10,000,000. In addition, at the time of each
Credit Event occurring on or after the Effective Date, the value of the Margin Stock at any time
owned by Holdings and its Subsidiaries does not exceed 25% of the value of the assets of Holdings
and its Subsidiaries taken as a whole. Neither the making of any Loan nor the use of the proceeds
thereof nor the occurrence of any other Credit Event will violate or be inconsistent with the
provisions of Regulation T, Regulation U or Regulation X.



          8.06. Governmental Approvals. Except as may have been obtained or made on or prior to the Effective Date (and which
remain in full force and effect on the Effective Date), no order, consent, approval, license,
authorization or validation of, or filing, recording or registration with, or exemption by, any
foreign or domestic governmental or public body or authority, or any subdivision thereof, is
required to authorize or is required in connection with (i) the execution, delivery and
performance of any Document or (ii) the legality, validity, binding effect or enforceability of any
Document.



          8.07. Investment Company Act. Neither Holdings nor any of its Subsidiaries is an “investment company” or a company
“controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940,
as amended.



          8.08. True and Complete Disclosure. All factual information (taken as a whole) heretofore or contemporaneously furnished by or
on behalf of Holdings or any of its Subsidiaries in writing to any Agent or any Lender (including,
without limitation, all information contained in the Documents) for purposes of or in connection
with this Agreement, the other Documents or any transaction contemplated herein or therein is, and
all other such factual information (taken as a whole) hereafter furnished by or on behalf of any
such Persons in writing to any Agent or any Lender will be, true and accurate in all material
respects on the date as of which such information is dated or certified and not incomplete by
omitting to state any material fact necessary to make such information (taken as a whole) not
misleading in any material



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respect at such time in light of the circumstances under which such
information was provided, it being understood and agreed that for purposes of this Section 8.08,
such factual information shall not include the Projections or any projected financial information
contained in any financial projections delivered pursuant to Section 9.01.



          8.09. Financial Condition; Financial Statements. (a) On and as of the Effective Date, on a pro forma basis after giving
effect to the Transaction and to all Indebtedness (including the Loans) incurred, and to be
incurred, and Liens created, and to be created, by each Credit Party in connection therewith, with
respect to the Borrower (on a stand-alone basis), Holdings and its Subsidiaries (on a consolidated
basis) and the Borrower and its Subsidiaries (on a consolidated basis) (x) the sum of the assets,
at a fair valuation, of the Borrower (on a stand-alone basis), Holdings and its Subsidiaries (on a
consolidated basis) and the Borrower and its Subsidiaries (on a consolidated basis) will exceed its
or their debts, (y) it has or they have not incurred nor intended to, nor believes or believe that
it or they will, incur debts beyond its or their ability to pay such debts as such debts mature and
(z) it or they will have sufficient capital with which to conduct its or their business. For
purposes of this Section 8.09(a), “debt” means any liability on a claim, and “claim” means (i)
right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured
or (ii) right to an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or unsecured. The amount of
contingent liabilities at any time shall be computed as the amount that, in the light of all facts
and circumstances existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.



          (b) (i) The audited consolidated statements of financial condition of the Borrower and its
Consolidated Subsidiaries at December 28, 2002, January 3, 2004 and January 1, 2005 and the related
consolidated statements of income and cash flows and changes in shareholders’ equity of the
Borrower and its Consolidated Subsidiaries for the fiscal years of the Borrower ended on such
dates, in each case furnished to the Lenders prior to the Effective Date, present fairly in all
material respects the consolidated financial position of the Borrower and its Consolidated
Subsidiaries at the date of said financial statements and the results for the respective periods
covered thereby and (ii) the Pro Forma Financial Statements present a good faith
estimate of the consolidated pro forma financial condition of the Borrower and its
Consolidated Subsidiaries and the pro forma results of operations of the Borrower and its
Consolidated Subsidiaries for the respective periods covered thereby (after giving effect to the
Transaction at the date thereof or for the period covered thereby). All of the financial
statements referred to in clause (i) of the immediately preceding sentence have been prepared in
accordance with U.S. GAAP consistently applied except to the extent provided in the notes to said
financial statements.



          (c) Since December 31, 2005 (but after giving effect to the Transaction as if same had
occurred immediately prior thereto), nothing has occurred that has had, or could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.



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          (d) Except as fully reflected in the financial statements described in Section 8.10(b) and as
otherwise permitted by Section 10.04, (i) there were as of the Effective Date (and after giving
effect to any Loans made on such date), no liabilities or obligations with respect to Holdings or
any of its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in the aggregate, could reasonably
be expected to be material to Holdings and its Subsidiaries taken as a whole and (ii) no Credit
Agreement Party knows of any basis for the assertion against Holdings or any of its Subsidiaries of
any such liability or obligation which, either individually or in the aggregate, has had, or could
reasonably be expected to have, a Material Adverse Effect.



          (e) The Projections have been prepared on a basis consistent with the financial statements
referred to in Section 8.9(b) and are based on good faith estimates and assumptions made by the
management of Holdings, and on the Effective Date, the Borrower believe that the Projections are
reasonable and attainable, it being recognized by the Lenders that such projections of future
events are not to be viewed as facts and that actual results during the period or periods covered
by any such Projections may differ from the projected results contained therein. There is no fact
known to any Credit Agreement Party or any of its Subsidiaries which has had, or could reasonably
be expected to have, a Material Adverse Effect, which has not been disclosed herein or in such
other documents, certificates and statements furnished to the Lenders for use in connection with
the transactions contemplated hereby.



          8.10. Security Interests. On and after the Effective Date, each of the Security Documents creates (or after the
execution and delivery thereof will create), as security for the Obligations covered thereby, a
valid and enforceable perfected security interest in and Lien on all of the Collateral subject
thereto, superior to and prior to the rights of all third Persons, and subject to no other
Liens (except that, subject to the provisions of the Intercreditor Agreement, (i) the Security
Agreement Collateral may be subject to Permitted Liens, (ii) the Pledge Agreement Collateral may be
subject to the Liens described in clauses (i) and (v) of Section 10.03 and clause (y) of Section
10.03(iii) and (iii) the security interest and mortgage lien created on any Mortgaged Property may
be subject to the Permitted Encumbrances related thereto), in favor of the Collateral Agent (or
such other trustee or sub-agent as may be required or desired under local law). No filings or
recordings are required in order to perfect and/or render enforceable as against third parties the
security interests created under any Security Document except for filings or recordings required in
connection with any such Security Document which shall have been made on or prior to the Effective Date or on or prior to the execution and delivery thereof as
contemplated by Sections 9.11, 9.14 and 10.12.



          8.11. Compliance with ERISA. (a) Schedule VI sets forth, as of the Effective Date, each Plan and each Multiemployer
Plan. Each Plan (and each related trust, insurance contract or fund) is in compliance in all
respects with its terms and in all respects with all applicable laws, including, without
limitation, ERISA and the Code and in compliance with the following, except to the extent that any
such noncompliances, individually or in the aggregate, would not result in a Material Adverse
Effect; each Plan (and each related trust, if any) which is intended to be qualified under Section
401(a) of the Code has received a determination letter from the Internal Revenue Service to the
effect that it meets the requirements of Sections 401(a) and 501(a) of the Code (or the sponsor has
applied for such determination letter within the



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remedial amendment period); (1) no Reportable
Event has occurred; (2) to the knowledge of any Senior Officer, no Multiemployer Plan is insolvent
or in reorganization; (3) no Plan has an Unfunded Current Liability; (4) no Plan which is subject
to Section 412 of the Code or Section 302 of ERISA has an accumulated funding deficiency, within
the meaning of such Sections of the Code or ERISA, or has applied for or received a waiver of an
accumulated funding deficiency or an extension of any amortization period, within the meaning of
Section 412 of the Code or Section 303 or 304 of ERISA; (5) all required contributions with respect
to a Plan and a Multiemployer Plan have been made; (6) neither Holdings nor any Subsidiary of
Holdings nor any ERISA Affiliate has incurred any outstanding material liability (including any
indirect, contingent or secondary liability) to or on account of a Plan or a Multiemployer Plan
pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA
or Section 401(a)(29), 4971 or 4975 of the Code or expects to incur any such material liability
under any of the foregoing Sections with respect to any Plan or a Multiemployer Plan; (7) no
condition exists which presents a material risk to Holdings or any Subsidiary of Holdings or any
ERISA Affiliate of incurring a material liability to or on account of a Plan or a Multiemployer
Plan pursuant to the foregoing provisions of ERISA and the Code; (8) no involuntary proceedings
have been instituted to terminate or appoint a trustee to administer any Plan which is subject to
Title IV of ERISA; (9) no action, suit, proceeding, hearing, audit or investigation with respect to
the administration, operation or the investment of assets of any Plan (other than routine claims
for benefits) is pending, expected or threatened; (10) using actuarial assumptions and computation
methods consistent with Part 1 of subtitle E of Title IV of ERISA, the aggregate liabilities of
Holdings and its Subsidiaries and ERISA Affiliates to any Multiemployer Plans in the event of a
withdrawal therefrom, as of the close of the most recent fiscal year of each such Multiemployer
Plan ended prior to the date of the most recent Credit Event would not exceed $10,000,000; (11)
each group health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) which covers or has
covered employees or former employees of Holdings, any Subsidiary of Holdings, or any ERISA
Affiliate has at all times been operated in compliance with the provisions of Part 6 of subtitle B
of Title I of ERISA and Section 4980B of the Code other than any non-compliance which would not
result in a material liability to Holdings or any Subsidiary of Holdings; (12) no lien imposed
under the Code or ERISA on the assets of Holdings or any Subsidiary of Holdings or any ERISA
Affiliate exists, is likely to arise on account of any Plan or any Multiemployer Plan; and (13) and
neither Holdings nor any Subsidiary of Holdings maintains or contributes to (a) any employee
welfare benefit plan (as defined in Section 3(1) of ERISA) which provides benefits to retired
employees and/or other former employees (other than as required by Section 601 of ERISA) or (b) any
Plan, the obligations with respect to which could reasonably be expected to have a Material Adverse
Effect.



          (b) Each Foreign Pension Plan has been maintained in substantial compliance with its terms and
with the requirements of any and all applicable laws, statutes, rules, regulations and orders and
has been maintained, where required, in good standing with applicable regulatory authorities,
except to the extent that such noncompliances, individually or in the aggregate, would not result
in a Material Adverse Effect. All required contributions with respect to a Foreign Pension Plan
have been made. Neither Holdings nor any of its Subsidiaries has incurred any material outstanding
obligation in connection with the termination of or withdrawal from any Foreign Pension Plan. The
present value of the accrued benefit liabilities



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(whether or not vested) under each Foreign Pension
Plan, determined as of the end of Holdings’ most recently ended fiscal year on the basis of
actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets
of such Foreign Pension Plan allocable to such benefit liabilities or alternatively, the Foreign
Pension Plan is funded in compliance with applicable law in all material respects and Holdings and
its Subsidiaries have established adequate reserves for the present value of such accrued benefit
liabilities under such Foreign Pension Plan in the financial statements delivered pursuant to
Section 9.01(a) and (b).



          8.12. Capitalization. (a) On the Effective Date and after giving effect to the Transaction, the authorized
capital stock of Holdings shall consist of 1,000 shares of common stock, $.001 par value per share
(such authorized shares of common stock, together with any subsequently authorized shares of common
stock of Holdings, the “Holdings Common Stock”), of which 1000 shares are issued and
outstanding. All such outstanding shares have been duly and validly issued, are fully paid and
nonassessable and free of preemptive rights. As of the Effective Date, except as set forth on Part
A of Schedule VII hereto, Holdings does not have outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any rights to subscribe for or to purchase, or
any options for the purchase of, or any agreement providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to, its capital stock
or any stock appreciation or similar rights.



          (b) On the Effective Date and after giving effect to the Transaction, all of the Equity
Interests of Intermediate Holdco are owned by Holdings and pledged pursuant to the Pledge
Agreement. Intermediate Holdco does not have outstanding any securities convertible into or
exchangeable for its Equity Interests or outstanding any rights to subscribe for or to
purchase, or any options for the purchase of, or any agreement providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any character relating to, its
Equity Interests or any equity appreciation or similar rights.



          (c) On the Effective Date and after giving effect to the Transaction, the authorized capital
stock of the Borrower shall consist of 1000 shares of common stock, $.001 par value per share, of
which 1000 shares were issued and outstanding, owned by Intermediate
Holdco and delivered for pledge pursuant to the Pledge Agreement. All such outstanding shares
have been duly and validly issued, are fully paid and nonassessable and free of preemptive rights.
The Borrower does not have outstanding any securities convertible into or exchangeable for its
capital stock or outstanding any rights to subscribe for or to purchase, or any options for the
purchase of, or any agreement providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its capital stock or any stock
appreciation or similar rights.



          8.13. Subsidiaries. On and as of the Effective Date and after giving effect to the Transaction, Holdings has no
Subsidiaries other than Westlake Wellbeing Company LLC, The California Wellbeing Institute, LLC and
Intermediate Holdco and its Subsidiaries, and Intermediate Holdco has no Subsidiaries other than
those Subsidiaries listed on Schedule VIII. Schedule VIII correctly sets forth, as of the
Effective Date and after giving effect to the Transaction, (i) the percentage ownership (direct and
indirect) of Intermediate Holdco in each class of capital stock or other Equity Interests of each
of its Subsidiaries and also identifies the



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direct owner thereof and (ii) the jurisdiction of
organization of each such Subsidiary. All outstanding shares of capital stock or other Equity
Interests of each Subsidiary of Intermediate Holdco have been duly and validly issued, are fully
paid and non-assessable and, in the case of Non-Wholly Owned Subsidiaries of the Borrower, have
been issued free of preemptive rights. Except as set forth on Part B of Schedule VII attached
hereto, no Subsidiary of Intermediate Holdco has outstanding any securities convertible into or
exchangeable for its capital stock or other Equity Interests or outstanding any right to subscribe
for or to purchase, or any options or warrants for the purchase of, or any agreement providing for
the issuance (contingent or otherwise) of or any calls, commitments or claims of any character
relating to, its capital stock or other Equity Interests or any stock appreciation or similar
rights. Except for the existing investments described on Schedule IX, as of the Effective Date,
neither Holdings nor any of its Subsidiaries owns or holds, directly or indirectly, any capital
stock or equity security of, or any other Equity Interests in, any Person other than its
Subsidiaries indicated on Schedule VIII.



          8.14. Intellectual Property, etc. Each of Holdings and each of its Subsidiaries owns or has the right to use all domestic and
foreign patents, trademarks, permits, domain names, service marks, trade names, copyrights,
licenses, franchises, inventions, trade secrets, proprietary information and know-how of any type,
whether or not written (including, but not limited to, rights in computer programs and databases)
and formulas, or other rights with respect to the foregoing, and has obtained assignments of all
leases, licenses and other rights of whatever nature, in each case necessary for the conduct of its
business, without any known conflict with the rights of others which, or the
failure to obtain which, as the case may be, individually or in the aggregate, has had, or
could reasonably be expected to have, a Material Adverse Effect.



          8.15. Compliance with Statutes; Agreements, etc. Each of Holdings and each of its Subsidiaries is in compliance with (i) all applicable
statutes, regulations, rules and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its business and the
ownership of its property and (ii) all contracts and agreements to which it is a party, except such
non-compliances as have not had, and could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.



          8.16. Environmental Matters. (a) Each of Holdings and each of its Subsidiaries has complied with, and on the date of
each Credit Event is in compliance with, all applicable Environmental Laws and the requirements of
any permits issued under such Environmental Laws and neither Holdings nor any of its Subsidiaries
is liable for any material penalties, fines or forfeitures for failure to comply with any of the
foregoing. There are no pending or past or, to the knowledge of any Senior Officer, threatened
Environmental Claims against Holdings or any of its Subsidiaries or any Real Property owned, leased
or operated by Holdings or any of its Subsidiaries (including any such claim arising out of the
ownership, lease or operation by Holdings or any of its Subsidiaries of any Real Property formerly
owned, leased or operated by Holdings or any of its Subsidiaries but no longer owned, leased or
operated by Holdings or any of its Subsidiaries). There are no facts, circumstances, conditions or
occurrences on any Real Property owned, leased or operated by Holdings or any of its Subsidiaries
(including, to the knowledge of a Senior Officer, any Real Property formerly owned, leased or
operated by Holdings or any of its Subsidiaries but no longer owned, leased or operated by Holdings
or any of its Subsidiaries) or on any property adjoining or in the vicinity of



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any such Real Property that would reasonably be expected (i) to form the basis of an Environmental Claim against
Holdings or any of its Subsidiaries or any such Real Property or (ii) to cause any such Real
Property to be subject to any restrictions on the ownership, occupancy, use or transferability of
such Real Property by Holdings or any of its Subsidiaries under any applicable Environmental Law.



          (b) Hazardous Materials have not at any time been generated, used, treated or stored on, or
transported to or from, any Real Property owned, leased or operated by Holdings or any of its
Subsidiaries except in compliance with all applicable Environmental Laws and in connection with the
operation, use and maintenance of such Real Property by Holdings’ or such Subsidiary’s business.
Hazardous Materials have not at any time been Released on or from any Real Property owned, leased
or operated by Holdings or any of its Subsidiaries or by any person acting for or under contract to
Holdings or any of its Subsidiaries, or to the knowledge of any Credit Agreement Party, by any
other Person in respect of Real Property owned, leased or operated by Holdings or any of its
Subsidiaries (including, to the knowledge of any Credit Agreement Party, any Real Property owned,
leased or operated by Holdings or any of its Subsidiaries but no longer owned, leased or operated
by Holdings or any of its Subsidiaries), except in compliance with all applicable Environmental
Laws in all material respects.



          (c) Notwithstanding anything to the contrary in this Section 8.16, the representations made in
this Section 8.16 shall only be untrue if the aggregate effect of all conditions, failures,
noncompliances, Environmental Claims, Hazardous Materials, Releases and presence of underground
storage tanks, in each case of the types described above, has had, or could reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.



          8.17. Properties. All Real Property (other than Real Property with an individual Fair Market Value less than
$1,000,000 as of the Effective Date) and vessels owned by Holdings or any of its Subsidiaries, and
all material leaseholds leased by Holdings or any of its Subsidiaries, in each case as of the
Effective Date and after giving effect to the Transaction, and the nature of the interest therein,
is correctly set forth in Schedule V (and, to the extent that any such Real Property (or any
portion thereof) constitutes “Principal Property” (as defined in any of the Existing Senior Note
Indentures), Schedule XVII correctly identifies such Real Property (or the applicable portion
thereof) as “Principal Property”). Each of Holdings and each of its Subsidiaries has good and
marketable title to, or a validly subsisting leasehold interest in, all material properties owned
or leased by it, including all Real Property and vessels reflected in Schedule XVII and in the
financial statements (including the Pro Forma Financial Statements) referred to in
Section 8.10(b) (except (x) such properties sold in the ordinary course of business since the dates
of the respective financial statements referred to therein, (y) such properties otherwise sold as
permitted by the terms of this Agreement and (z) such Real Properties owned by the Borrower or any
of its Subsidiaries which may be subject to immaterial defects of title which do not impair the use
of such Real Property or the business conducted by the Borrower or such Subsidiary thereon), free
and clear of all Liens, other than Permitted Liens.



          8.18. Labor Relations. Neither Holdings nor any of its Subsidiaries is engaged in any unfair labor practice that
has had, or could reasonably be expected to have, either



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individually or in the aggregate, a Material Adverse Effect. There is (i) no unfair labor practice complaint pending against Holdings
or any of its Subsidiaries or, to the knowledge of any Senior Officer, threatened against any of
them, before the National Labor Relations Board or any similar foreign tribunal or agency, and no
grievance or arbitration proceeding arising out of or under any collective bargaining agreement is
so pending against Holdings or any of its Subsidiaries or, to the knowledge of any Senior Officer,
threatened against any of them, (ii) no strike, labor dispute, slowdown or stoppage pending against
Holdings or any of its Subsidiaries or, to the knowledge of any Senior Officer, threatened against
Holdings or any of its Subsidiaries and (iii) no union representation question existing with
respect to the employees of Holdings or any of its Subsidiaries and no union organizing activities
are taking place, except (with respect to any matter specified in clause (i), (ii) or (iii) above,
either individually or in the aggregate) such as has not had, or could reasonably be expected to
have, a Material Adverse Effect.



          8.19. Tax Returns and Payments. Holdings and each of its Subsidiaries has timely filed (including applicable extensions)
with the appropriate taxing authority, all material returns, statements, forms and reports for
taxes (the “Returns”) required to be filed by or with respect to the income, properties or
operations of Holdings and each of its Subsidiaries. The Returns accurately reflect in all
material respects all liability for taxes of Holdings and each of its Subsidiaries as a whole for
the periods covered thereby. Holdings and each of its Subsidiaries have paid all material taxes
payable by them other than those contested in good faith and adequately disclosed and for which
adequate reserves have been established in accordance with U.S. GAAP. Except as set forth on
Schedule X hereto, there is no action, suit, proceeding, investigation, audit, or claim now pending
or, to the knowledge of any Senior Officer, threatened by any authority regarding any taxes
relating to Holdings and each of its Subsidiaries. Except as set forth on Schedule X hereto,
neither Holdings nor any of its Subsidiaries has entered into an agreement or waiver or been
requested to enter into an agreement or waiver extending any statute of limitations relating to the
payment or collection of taxes of Holdings or any of its Subsidiaries, or is aware of any
circumstances that would cause the taxable years or other taxable periods of Holdings or any of its
Subsidiaries not to be subject to the normally applicable statute of limitations.



          8.20. Scheduled Existing Indebtedness. Schedule IV sets forth a true and complete list of all Indebtedness of Holdings and its
Subsidiaries as of the Effective Date and which is to remain outstanding after giving effect to the
Transaction and the incurrence of Loans and Term Loans on such date (exclusive of (i) Indebtedness
pursuant to this Agreement and the other Credit Documents, (ii) Indebtedness pursuant to the Term
Credit Agreement and the other Term Credit Documents, (iii) Indebtedness pursuant to the Existing
Senior Notes Documents and the Intermediate Holdco Senior Notes Documents, (iv) intercompany
Indebtedness pursuant to the Intercompany Distribution Transactions, (v) Indebtedness of Holdings
and/or any of its Subsidiaries of the types described in clauses (viii), (xiii) and (xviii) of
Section 10.04, (vi) Synthetic Lease obligations arising under the lease entered into in connection
with the Sale-Leaseback Transaction, and (vii) immaterial Contingent Obligations of Subsidiaries of
the Borrower that represent guaranties of obligations other than Indebtedness), in each case
showing the aggregate principal amount thereof (and the aggregate amount of any undrawn commitments
with respect thereto) and the name of the respective borrower and any other entity which directly
or indirectly guarantees such debt. Part A of Schedule IV lists all Indebtedness as described in



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the immediately preceding sentence which is owed to Persons other than Holdings or any of its
Subsidiaries (after giving effect to the consummation of the Transaction) (with all such
Indebtedness being herein called “Third Party Scheduled Existing Indebtedness”) and Part B
of Schedule VI lists all Indebtedness as described in the immediately preceding sentence which is
owed to Holdings and its Subsidiaries as of February 25, 2006 (with all of such Indebtedness being
herein called “Intercompany Scheduled Existing Indebtedness”).



          8.21. Insurance. Set forth on Schedule XI hereto is a true, correct and complete summary of all insurance
maintained by Holdings and its Subsidiaries on and as of the Effective Date, with the amounts
insured (and any deductibles) set forth therein.



          8.22. Transaction. At the time of consummation thereof, each element of the Transaction shall have been
consummated in all material respects in accordance with the terms of the relevant Documents
therefor and all applicable laws. At the time of consummation thereof, all consents and approvals
of, and filings and registrations with, and all other actions in respect of, all governmental
agencies, authorities or instrumentalities required in order to make or consummate
each element of the Transaction in accordance with the terms of the relevant Documents
therefor and all applicable laws have been obtained, given, filed or taken and are or will be in
full force and effect (or effective judicial relief with respect thereto has been obtained).
Additionally, there does not exist any judgment, order or injunction prohibiting or imposing
material adverse conditions upon any element of the Transaction, the occurrence of any Credit
Event, or the performance by Holdings or any of its Subsidiaries of their respective obligations
under the Documents and in accordance with all applicable laws.



          8.23. Special Purpose Corporations. (a) Holdings has no significant assets (other than (v) cash and Cash Equivalents held by
Holdings representing proceeds from the Wellbeing Project Financing, (w) the Equity Interests of
Intermediate Holdco, Westlake Wellbeing LLC and The California Wellbeing Institute, LLC, (x) after
the issuance thereof, the Equity Interests of each of the Unrestricted Wellbeing Joint Venture, (y)
Intercompany Notes evidencing intercompany loans permitted to be made by Holdings pursuant to
Section 10.05, and (z) immaterial assets used for the performance of those activities permitted to
be performed by Holdings pursuant to Section 10.01(b)) or liabilities (other than under this
Agreement and the other Documents (including the Term Credit Documents) to which it is a party
(including, the Wellbeing Project Financing Documents), those liabilities permitted to be incurred
by Holdings pursuant to Section 10.01(b) and, as and when issued from time to time in accordance
with the terms of this Agreement, under Shareholder Subordinated Notes).



          (b) Intermediate Holdco has no significant assets (other than Equity Interests of the Borrower
and Corporate Holdco, Intercompany Notes evidencing intercompany loans permitted to be made by
Intermediate Holdco pursuant to Section 10.05 and immaterial assets used for the performance of
those activities permitted to be performed by Intermediate Holdco pursuant to Section 10.01(j)) or
liabilities (other than under this Agreement and the other Documents to which it is a party
(including the Intermediate Holdco Documents) and those liabilities permitted to be incurred by
Intermediate Holdco pursuant to Section 10.01(j)).



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          (c) Corporate Holdco has no significant assets (other than immaterial assets used for the
performance of those activities permitted to be performed by Corporate Holdco pursuant to Section
10.01(k)) or liabilities (other than under this Agreement and the other Documents to which it is a
party (including the Intermediate Holdco Documents and the Term Credit Documents) and those
liabilities permitted to be incurred by Corporate Holdco pursuant to Section 10.01(k)).



          8.24. Subordination. (a) The subordination provisions contained in the Existing Senior Notes Documents and, on
and after the execution and delivery thereof, the Permitted Senior Notes Documents and the
Permitted Refinancing Senior Notes Documents are enforceable against (i) the Subsidiary Guarantors
party thereto, (ii) in the case of any Permitted Senior Notes Document or Permitted Refinancing
Senior Notes Document providing for subordination of the Borrower’s obligations thereunder, the
Borrower and (iii) the holders of the Existing Senior Notes, the Permitted Senior Notes or the
Permitted Refinancing Senior Notes, as the case may be. All
Guaranteed Obligations (as defined in the Subsidiaries Guaranty) of the Subsidiary Guarantors
and, in the case of any Permitted Senior Notes Document or Permitted Refinancing Senior Notes
Document providing for subordination of the Borrower’s obligations thereunder, all Obligations of
the Borrower under the Credit Documents to which it is a party, are within the definitions of
“Guarantor Senior Debt” and “Designated Guarantor Senior Debt” or “Senior Debt” and “Designated
Senior Debt”, as applicable, included in such subordination provisions.



          (b) On and after the execution and delivery of the Shareholder Subordinated Notes, the
subordination provisions contained therein will be enforceable against Holdings and the holders of
the Shareholder Subordinated Notes, and all Obligations of Holdings hereunder and under the other
Credit Documents to which it is a party are within the definitions of “Senior Debt” included in
such subordination provisions.



          8.25. Aggregate Borrowing Base Calculation. The calculation by the Borrower of the Borrowing Base and the valuation thereunder is
complete and accurate in all respects.



          SECTION 9. Affirmative Covenants.



          Each Credit Agreement Party hereby covenants and agrees that as of the Effective Date and
thereafter for so long as this Agreement is in effect and until the Total Commitment and all
Letters of Credit have been terminated, and the Loans, Notes and Unpaid Drawings, together with
interest, Fees and all other Obligations (other than any indemnities described in Section 13.13
which are not then due and payable) incurred hereunder, are paid in full:



          9.01. Information Covenants. Holdings or the Borrower will furnish, or will cause to be furnished, to the Administrative
Agent (who shall furnish to each Lender):




     (a) Monthly Reports. Within 30 days after the end of each Fiscal Month of the
Borrower (other than the last Fiscal Month of each Fiscal Quarter of the Borrower), the
balance sheet of the Borrower and its Consolidated Subsidiaries (and, if available the
Borrower agrees to use its commercially reasonable efforts to make same available, of the



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U.S. Dole Group) as at the end of such Fiscal Month and the related consolidated statement
of income for such Fiscal Month and for the elapsed portion of the Fiscal Year ended with
the last day of such Fiscal Month.




     (b) Quarterly Financial Statements. Within 3 Business Days following the 45th
day after the close of the first three quarterly accounting periods in each Fiscal Year of
the Borrower (i) (x) the consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as at the end of such quarterly accounting period and the related consolidated
statements of income and of cash flows for such quarterly accounting period and for the
elapsed portion of the Fiscal Year ended with the last day
of such quarterly accounting period, in each case setting forth comparative figures for
the corresponding quarterly accounting period in the prior Fiscal Year and the budgeted
figures for such quarterly period as set forth in the respective financial projections
theretofore delivered pursuant to Section 9.01(d), (y) the consolidated balance sheet of
each Business Segment as at the end of such quarterly accounting period and the related
consolidated statement of income of such Business Segment for such quarterly accounting
period and for the elapsed portion of the Fiscal Year ended with the last day of such
quarterly accounting period, in each case setting forth comparative figures for the
corresponding quarterly accounting period in the prior Fiscal Year, and (z) the consolidated
balance sheets of the U.S. Dole Group and the Non-U.S. Dole Group as at the end of such
quarterly accounting period and the related consolidated statements of income of each such
group for such quarterly accounting period and for the elapsed portion of the Fiscal Year
ended with the last day of such quarterly accounting period, all of the foregoing of which
shall be in reasonable detail and, in the case of the financial statements described in
subclause (x) above, be certified by the senior financial officer or other Authorized
Officer of Holdings or the Borrower that they fairly present in all material respects in
accordance with U.S. GAAP the financial condition of the Borrower and its Consolidated
Subsidiaries as of the dates indicated and the results of their operations and/or changes in
their cash flows for the periods indicated, subject to normal year-end audit adjustments and
the absence of footnotes and (ii) management’s discussion and analysis of the important
operational and financial developments during such quarterly accounting period;
provided, however, that for any quarterly accounting period for which the
Borrower has filed a Form 10-Q Report with the SEC and the Chief Financial Officer or other
Authorized Officer of Holdings has delivered to the Administrative Agent a certificate
certifying that the Parent Business Condition has been satisfied for such quarterly
accounting period, the furnishing of (I) the Borrower’s Form 10-Q Report filed with the SEC
for such quarterly accounting period and (II) the consolidated balance sheet of each
Business Segment as at the end of such quarterly accounting period and the related
consolidated statement of income of such Business Segment for such quarterly accounting
period, shall satisfy the requirements of subclause (i) and (ii) of this Section 9.01(b).




     (c) Annual Financial Statements. Within 3 Business Days following the 90th day
after the close of each Fiscal Year of the Borrower (or, in the case of the Fiscal Year of
the Borrower ended December 31, 2005, on the date on which the Credit Agreement Parties
shall have filed a Form 10-K Report with the SEC for such Fiscal Year (and, in



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any event, no later than April 28, 2006)), (i) (x) the consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at the end of such Fiscal Year and the related consolidated
statements of income and stockholders’ equity and of cash flows for such Fiscal Year and
setting forth comparative consolidated figures for the preceding Fiscal Year and comparable
budgeted figures for such Fiscal Year as set forth in the
respective financial projections delivered pursuant to Section 9.01(d), (y) the
consolidated balance sheet of each Business Segment as at the end of such Fiscal Year and
the related consolidated statements of income of each Business Segment for such Fiscal Year
and setting forth comparative consolidated figures for the preceding Fiscal Year and (z) the
consolidated balance sheet of each of the U.S. Dole Group and the Non-
U.S. Dole Group as at the end of such Fiscal Year and the related consolidated
statements of income of each such group for such Fiscal Year and setting forth comparative
consolidated figures for the preceding Fiscal Year, (ii) in the case of the financial
statements referred to in subclause (i)(x) above (except for such comparable budgeted
figures), together with a certification by Deloitte & Touche LLP or such other independent
certified public accountants of recognized national standing as shall be acceptable to the
Administrative Agent, in each case to the effect that (I) such statements fairly present in
all material respects the financial condition of the Borrower and its Consolidated
Subsidiaries as of the dates indicated and the results of their operations and changes in
financial position for the periods indicated in conformity with U.S. GAAP applied on a basis
consistent with prior years and (II) in the course of its regular audit of the business of
the Borrower and its Consolidated Subsidiaries, which audit was conducted in accordance with
U.S. GAAP (and made without qualification or expression of uncertainty, in each case as to
going concern; provided, that in the case of the report provided in connection with the
Borrower’s fiscal year ended January 3, 2009, the opinion provided with such financial
statements may contain a going concern qualification or expression of uncertainty so long as
the Borrower delivers an unqualified opinion of Deloitte & Touche LLP with respect to such
fiscal year no later than May 15, 2009), no Default or Event of Default which has occurred
and is continuing has come to their attention or, if such a Default or an Event of Default
has come to their attention, a statement as to the nature thereof, and (iii) management’s
discussion and analysis of the important operational and financial developments during such
Fiscal Year; provided, however, that for any Fiscal Year for which the
Borrower has filed a Form 10-K Report with the SEC and the Chief Financial Officer or other
Authorized Officer of Holdings has delivered to the Administrative Agent a certificate (x)
certifying that the Parent Business Condition has been satisfied during such Fiscal Year and
(y) setting forth the aggregate amount of Dividends paid to Intermediate Holdco by the
Borrower during such Fiscal Year pursuant to Sections 10.06(iii), (iv), (v) and (ix), the
furnishing of (I) the Borrower’s Form 10-K Report filed with the SEC for such Fiscal Year
and (II) the consolidated balance sheet of each Business Segment as at the end of such
Fiscal Year and the related consolidated statement of income of such Business Segment for
such Fiscal Year, shall satisfy the requirements of subclause (i) and (iii) of this Section
9.01(c).




     (d) Financial Projections, etc. Not more than 90 days after the commencement
of each Fiscal Year of the Borrower, financial projections in form reasonably satisfactory
to the Administrative Agent (including projected statements of



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income, sources and uses of
cash and balance sheets, taking into account any Significant Asset Sales intended to be
consummated during such Fiscal Year) prepared by the Borrower (i) for the four Fiscal
Quarters of such Fiscal Year prepared in detail and (ii) for each of the immediately
succeeding two Fiscal Years prepared in summary form, in each case, on a consolidated basis,
for the Borrower and its Consolidated Subsidiaries and
setting forth, with appropriate discussion, the principal assumptions upon which such
financial projections are based.




     (e) Officer’s Certificates. At the time of the delivery of the financial
statements provided for in Sections 9.01(a), (b) and (c), (with respect to clause (c) for
each Fiscal Year ended on or after the Initial Borrowing Date), a certificate of the
Chief Financial Officer or other Authorized Officer of the Borrower to the effect that no
Default or Event of Default exists or, if any Default or Event of Default does exist,
specifying the nature and extent thereof, which certificate shall (i) if delivered in
connection with the financial statements required by Section 9.01(b) or (c), (x) set forth
in reasonable detail the calculations required to establish whether Holdings and its
Subsidiaries were in compliance with the provisions of Sections 5.02, 10.02, 10.04, 10.05,
10.06 and 10.08 (whether or not a Compliance Period is then in effect) and (y) the
calculation of the Senior Secured Leverage Ratio as at the end of such Fiscal Quarter or
Fiscal Year of the Borrower, as the case may be, (ii) if delivered with the financial
statements required by Section 9.01(c), set forth in reasonable detail (x) the amount of
(and the calculations required to establish the amount of) Excess Cash Flow and Adjusted
Excess Cash Flow for the respective Excess Cash Flow Payment Period and (y) the amount
required to be paid pursuant to Section 4.02(f) on the relevant Excess Cash Payment Date,
and (iii) certify that there have been no changes to Annexes A through G of the Security
Agreement, Annexes A through G of the Pledge Agreement and the annexes or schedules to any
other Security Document, in each case since the Initial Borrowing Date or, if later, since
the date of the most recent certificate delivered pursuant to this Section 9.01(e), or if
there have been any such changes, a list in reasonable detail of such changes (but, in each
case with respect to this clause (iii), only to the extent that such changes are required to
be reported to the Collateral Agent pursuant to the terms of such Security Documents) and
whether the Credit Agreement Parties and the other Credit Parties have otherwise taken all
actions required to be taken by them pursuant to such Security Documents in connection with
any such changes.




     (f) Notice of Default or Litigation. Promptly, and in any event within five
Business Days after a Senior Officer obtains knowledge thereof, notice of (i) the occurrence
of any event which constitutes a Default or an Event of Default, which notice shall specify
the nature and period of existence thereof and what action Holdings or such Subsidiary
proposes to take with respect thereto, (ii) any litigation or proceeding pending or
threatened (x) against Holdings or any of its Subsidiaries which has had, or could
reasonably be expected to have, a Material Adverse Effect or (y) with respect to the Term
Credit Agreement, any Existing Senior Notes Document, any Intermediate Holdco Credit
Document or, on and after the execution and delivery thereof any Permitted Senior Notes
Document or any Permitted Refinancing Senior Notes Document, (iii) any Material Governmental
Investigation pending or threatened against Holdings or any of its



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Subsidiaries and (iv) any
other event, change or circumstance which has had, or could reasonably be expected to have,
a Material Adverse Effect.




     (g) Management Letters. Promptly upon receipt thereof, a copy of any
“management letter” submitted to Holdings or any of its Subsidiaries by its independent
accountants in connection with any annual, interim or special audit made by them of the
financial statements of Holdings or any of its Subsidiaries and management’s responses
thereto.




     (h) Environmental Matters. Within five Business Days after a Senior Officer
obtains knowledge of any of the following (but only to the extent that any of the following,
either individually or in the aggregate, has had, or could reasonably be expected to have,
(a) a Material Adverse Effect or (b) a remedial cost to Holdings or any of its Subsidiaries
in excess of $15,000,000), written notice of:




     (i) any pending or threatened Environmental Claim against Holdings or any of
its Subsidiaries or any Real Property owned, leased or operated by Holdings or any
of its Subsidiaries;




     (ii) any condition or occurrence on any Real Property owned, leased or operated
by Holdings or any of its Subsidiaries that (x) results in noncompliance by Holdings
or any of its Subsidiaries with any applicable Environmental Law or (y) could
reasonably be anticipated to form the basis of an Environmental Claim against
Holdings or any of its Subsidiaries or any such Real Property;




     (iii) any condition or occurrence on any Real Property owned, leased or
operated by Holdings or any of its Subsidiaries that could reasonably be anticipated
to cause such Real Property to be subject to any restrictions on the ownership,
lease, occupancy, use or transferability by Holdings or such Subsidiary, as the case
may be, of its interest in such Real Property under any Environmental Law; and




     (iv) the taking of any removal or remedial action in response to the actual or
alleged presence of any Hazardous Material on any Real Property owned, leased or
operated by Holdings or any of its Subsidiaries.


All such notices shall describe in reasonable detail the nature of the claim, investigation,
condition, occurrence or removal or remedial action and Holdings’ response or proposed response
thereto. In addition, the Borrower agrees to provide the Lenders (by delivery to the
Administrative Agent) with copies of such detailed reports relating to any of the matters set forth
in clauses (i)-(iv) above as may reasonably be requested by the Administrative Agent or any Lender.





     (i) Reports. Within 3 Business Days following transmission thereof, copies of
any filings and registrations with, and reports to, the SEC by Holdings or any of its
Subsidiaries and copies of all financial statements, proxy statements, notices and reports
as Holdings or any of its Subsidiaries shall send generally to the holders of Indebtedness



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or (following the public issuance of Equity Interests of Holdings or any of its
Subsidiaries) their Equity Interests in their capacity as such holders (to the extent not
theretofore delivered to the Lenders pursuant to this Agreement).




     (j) New Subsidiaries; etc. Within 3 Business Days after the 45th day following
the close of each of the first three Fiscal Quarters of each Fiscal Year of Holdings and
within 3 Business Days after the 45th day following the close of each
Fiscal Year of Holdings, (x) a list showing each Subsidiary of Holdings established,
created or acquired during the respective Fiscal Quarter or Fiscal Year, and each
Subsidiary which has had any Equity Interests transferred during the respective Fiscal
Quarter or Fiscal Year (in each case describing in reasonable detail the respective transfer
of Equity Interests), in each case naming the direct owner of all Equity Interests in such
Subsidiary and describing such Equity Interests in reasonable detail, and certifying that
each such Subsidiary, and each Credit Party which owns any Equity Interests therein, has
taken all actions, if any, required pursuant to Sections 9.11 and 10.13 and the relevant
Security Documents and certifying Holdings’ compliance with the provisions of Section 9.17,
and (y) a list of each Domestic Subsidiary of Holdings, if any, which has not been
transferred to Holdings or one or more Domestic Subsidiary of Holdings pursuant to the
requirements of Section 9.17(a) (by virtue of the first proviso to the second sentence of
said Section 9.17(a)), and specifically stating the reasons therefor.




     (k) Annual Meetings with Lenders. At the request of the Administrative Agent,
Holdings shall, within 120 days after the close of each Fiscal Year of the Borrower, hold a
meeting (which may be by conference call or teleconference), at a time and place selected by
Holdings and reasonably acceptable to the Administrative Agent, with all of the Lenders that
choose to participate, to review the financial results of the previous Fiscal Year and the
financial condition of the Borrower and its Subsidiaries and the budgets presented for the
current Fiscal Year of the Borrower and its Subsidiaries.




     (l) Notice of Mandatory Repayments. On or prior to the date of any prepayment
of the loans pursuant to Sections 5.02(b) through (f), inclusive, Holdings or the Borrower
shall provide written notice of the amount of the respective repayment and the calculations
therefor (in reasonable detail).




     (m) Compliance with Section 13.19. On or prior to the 90th day after the
Initial Borrowing Date, an appropriate officer in the legal department of Holdings or the
Borrower shall provide a written certification of compliance with all post-closing
requirements set forth in Section 13.19 (including those actions required pursuant to
Schedule XII), specifically listing any items where such compliance has not yet occurred
(and, with respect to any such items where compliance has not yet occurred, stating the time
frame in which it is expected that such actions shall be taken and the reasons such actions
have not been completed). Without excusing any failure to comply with Section 13.19, if the
certification provided above does not establish complete compliance with all requirements of
Section 13.19 (and Schedule XII), Holdings or the Borrower shall cause an appropriate
officer in its legal department to furnish monthly updates thereafter, in each case showing
in reasonable detail all compliances (and any non- compliances) with



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the requirements of
Section 13.19. Such certifications shall no longer be required after the date upon which
Holdings or the Borrower certifies that all actions required be taken pursuant to Section
13.19 (and Schedule XII) have been completed.




     (n) Hedging Agreements. At the time of the delivery of the financial
statements provided for in Section 9.01(c), a schedule of all Interest Rate Protection
Agreements and Other Hedging Agreements entered into by Holdings or any of its Subsidiaries
with any Lender and/or any of its affiliates.




     (o) Borrowing Base Certificate. (w) On the Initial Borrowing Date, (x) not
later than 5:00 P.M. (New York time) on the forty-fifth day following the end of the first
Fiscal Month of the Borrower following the Closing Date, (y) not later than 5:00 P.M. (New
York time) on the fifteenth Business Day following the end of each Fiscal Month of the
Borrower thereafter and (z) during the continuance of a Borrowing Availability Limitation,
not later than 5:00 p.m. (New York time) on the fifth Business Day after the end of each
fiscal week of the Borrower (or at such other times as the Administrative Agent may
request), a borrowing base certificate setting forth the Borrowing Base (with supporting
calculations) substantially in the form of Exhibit M (each, a “Borrowing Base
Certificate”), which shall be prepared (A) as of the end of the first Fiscal Month of
2006 in the case of the Initial Borrowing Base Certificate and (B) as of the last Business
Day of fiscal month or week, as the case may be, of the Borrower in the case of each
subsequent Borrowing Base Certificate (it being understood, however, that any Eligible
Accounts reflected in any Borrowing Base Certificate may be as of the last Business Day of
fiscal month or week, as the case may be, of the Borrower) provided, that, upon the
occurrence and continuation of a Default or an Event of Default or if otherwise required by
Administrative Agent in its Permitted Discretion, such Borrowing Base Certificates and any
additional schedules and other information shall be delivered as often as reasonably
requested by Administrative Agent. Each such Borrowing Base Certificate shall include such
supporting information as may be requested from time to time by the Administrative Agent.




     (p) Field Examinations; Appraisals. Once during each Fiscal Year of Holdings
and, at any time a Default, or Event of Default or Borrowing Availability Limitation exists,
at such other times as the Administrative Agent may request, (x) an appraisal of the
Inventory of the Borrower and its Subsidiaries and (y) a collateral examination of the
Inventory and receivables of the Borrower and its Subsidiaries, in each case, in scope, and
from a third-party appraiser and a third-party consultant, respectively, satisfactory to the
Collateral Agent and completed at the cost and expense of the Borrower.




     (q) Other Information. From time to time, such other information or documents
(financial or otherwise) with respect to Holdings or its Subsidiaries as the Administrative
Agent or any Lender may reasonably request.



          9.02. Books, Records and Inspections. Each Credit Agreement Party will, and will cause each of its Subsidiaries to, keep proper
books of record and accounts in which full,



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true and correct entries which permit the preparation
of financial statements in accordance with U.S. GAAP and which conform to all requirements of law,
shall be made of all dealings and transactions in relation to its business and activities. Each
Credit Agreement Party will, and will cause each of its Subsidiaries to, permit officers and
designated representatives of the Administrative Agent or, if any Specified Default or, any Event
of Default then exists, any Lender, to visit and inspect, under guidance of officers of such Credit
Agreement Party or such Subsidiary, any of the properties of such Credit Agreement Party or such
Subsidiary, and to examine the books of account of such Credit
Agreement Party or such Subsidiary and discuss the affairs, finances and accounts of such
Credit Agreement Party or such Subsidiary with, and be advised as to the same by, its and their
officers and independent accountants, all upon reasonable prior notice and at such reasonable times
and intervals and to such reasonable extent as the Administrative Agent or such Lender may
reasonably request.



          9.03. Insurance. (a) Each Credit Agreement Party will, and will cause each of its Subsidiaries to, (i)
maintain, with financially sound and reputable insurance companies, insurance on all its property
in at least such amounts and against at least such risks as is consistent and in accordance with
industry practice and (ii) furnish to the Administrative Agent, upon request by the Administrative
Agent or any Lender, full information as to the insurance carried. Such insurance shall in any
event include physical damage insurance on all real and personal property (whether now owned or
hereafter acquired) on an all risk basis and business interruption insurance.



          (b) Each Credit Agreement Party will, and will cause each of its Subsidiaries to, at all times
keep the respective property of such Credit Agreement Party and its Subsidiaries insured in favor
of the Collateral Agent, and all policies or certificates with respect to such insurance (and any
other insurance maintained by, or on behalf of, any Credit Agreement Party or any of its
Subsidiaries) (i) shall be endorsed to the Collateral Agent’s satisfaction for the benefit of the
Collateral Agent (including, without limitation, by naming the Collateral Agent as certificate
holder, mortgagee and loss payee with respect to real property, certificate holder and loss payee
with respect to personal property, additional insured with respect to general liability and
umbrella liability coverage and certificate holder with respect to workers’ compensation
insurance), (ii) shall state that such insurance policies shall not be canceled or materially
changed without at least 30 days’ prior written notice thereof by the respective insurer to the
Collateral Agent and (iii) shall be deposited with the Collateral Agent.



          (c) If any Credit Agreement Party or any of its Subsidiaries shall fail to maintain all
insurance in accordance with this Section 9.03, or if any Credit Agreement Party or any of its
Subsidiaries shall fail to so name the Collateral Agent as an additional insured, mortgagee or loss
payee, as the case may be, or so deposit all certificates with respect thereto, the Administrative
Agent and/or the Collateral Agent shall have the right (but shall be under no obligation), upon ten
Business Days’ notice to Holdings or the Borrower, to procure such insurance, and the Credit
Agreement Parties agree jointly and severally to reimburse the Administrative Agent or the
Collateral Agent, as the case may be, for all costs and expenses of procuring such insurance.



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          9.04. Payment of Taxes. Each Credit Agreement Party will pay and discharge, and will cause each of its Subsidiaries
to pay and discharge, all taxes, assessments and governmental charges or levies imposed upon it or
upon its income or profits, or upon any properties belonging to it, in each case on a timely basis,
and all lawful claims which, if unpaid, might become a lien or charge upon any properties of the
Credit Agreement Parties or any of their Subsidiaries not otherwise permitted under Section
10.03(i); provided that no Credit Agreement Party or any of its
Subsidiaries shall be required to pay any such tax, assessment, charge, levy or claim which is
being contested in good faith and by proper proceedings if it has maintained adequate reserves
with respect thereto in accordance with U.S. GAAP.



          9.05. Existence; Franchises. Each Credit Agreement Party will do, and will cause each of its Subsidiaries to do, or
cause to be done, all things necessary to preserve and keep in full force and effect its existence
and its material rights, franchises, authorities to do business, licenses, certifications,
accreditations and patents; provided, however, that nothing in this Section 9.05
shall prevent (i) sales of assets and other transactions by Holdings or any of its Subsidiaries in
accordance with Section 10.02, (ii) the withdrawal by Holdings or any of its Subsidiaries of its
qualification as a foreign corporation, partnership or limited liability company, as the case may
be, in any jurisdiction where such withdrawal could not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect or (iii) the dissolution of the Excluded
Domestic Subsidiary or any Excluded Foreign Subsidiary.



          9.06. Compliance with Statutes; etc. (a) Each Credit Agreement Party will, and will cause each of its Subsidiaries to, comply with
all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its business and the
ownership of its property, except for such noncompliances as, individually or in the aggregate,
have not had, and could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.



          (b) Within 5 Business Days after each Credit Agreement Party is required by applicable law,
statute, rule or regulation, such Credit Agreement Party shall file (or cause to be filed) with the
SEC all reports, financial information and certifications required by applicable law, statute, rule
or regulation.



          9.07. Compliance with Environmental Laws. (a) (i) Each Credit Agreement Party will comply, and will cause each of its Subsidiaries
to comply, in all material respects with all Environmental Laws applicable to the ownership or use
of its Real Property and vessels now or hereafter owned, leased or operated by such Credit
Agreement Party or any of its Subsidiaries, will promptly pay or cause to be paid all costs and
expenses incurred in connection with such compliance, and will keep or cause to be kept all such
Real Property and vessels free and clear of any Liens imposed pursuant to such Environmental Laws
and (ii) neither any Credit Agreement Party nor any of its Subsidiaries will generate, use, treat,
store, Release or dispose of, or permit the generation, use, treatment, storage, Release or
disposal of, Hazardous Materials on any Real Property or vessels owned, leased or operated by such
Credit Agreement Party or any of its Subsidiaries, or transport or permit the transportation of
Hazardous Materials to or from any such Real Property, except as required in the ordinary course of
business of Holdings and its Subsidiaries as conducted on the Original Effective Date and as
allowed by (and in compliance



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with) applicable law or regulation and except for any failures to
comply with the requirements specified in clause (i) or (ii) above,
which, either individually or in the aggregate, have not had, and could not reasonably be
expected to have, a Material Adverse Effect. If Holdings or any of its Subsidiaries, or any
tenant or occupant of any Real Property or vessel owned, leased or operated by Holdings or any of
its Subsidiaries, causes or permits any intentional or unintentional act or omission resulting in
the presence or Release of any Hazardous Material (except in compliance with applicable
Environmental Laws), each Credit Agreement Party agrees to undertake, and/or to cause any of its
Subsidiaries, tenants or occupants to undertake, at their sole expense, any clean up, removal,
remedial or other action required pursuant to Environmental Laws to remove and clean up any
Hazardous Materials from any Real Property or vessel except where the failure to do so has not had,
and could not reasonably be expected to have, a Material Adverse Effect.



          (b) At the written request of the Administrative Agent or the Required Lenders, which request
shall specify in reasonable detail the basis therefor (which may not simply be a desire for
periodic review), at any time and from time to time, the Credit Agreement Parties will provide, at
their sole cost and expense, an environmental site assessment report concerning any Real Property
now or hereafter owned, leased or operated by Holdings or any of its Subsidiaries, prepared by an
environmental consulting firm reasonably approved by the Administrative Agent, addressing the
matters which gave rise to such request and estimating the potential costs of any removal, remedial
or other corrective action in connection with any such matter. If a Credit Agreement Party fails
to provide the same within 45 days after such request was made, the Administrative Agent may order
the same, and the Credit Agreement Parties shall grant and hereby do grant, to the Administrative
Agent and the Lenders and their agents, access to such Real Property and specifically grant the
Administrative Agent and the Lenders and their agents an irrevocable non-exclusive license, subject
to the right of tenants, to undertake such an assessment, all at the Credit Agreement Parties’
joint and several expense.



          9.08. ERISA. As soon as possible and, in any event, within twenty (20) Business Days after Holdings, any
Subsidiary of Holdings or any ERISA Affiliate knows or has reason to know of the occurrence of any
of the following, Holdings will deliver to the Administrative Agent written notice of the chief
financial officer, vice president of human resources or other Authorized Officer of the Borrower
setting forth, to the extent known, and in reasonable detail, such occurrence and the action, if
any, that Holdings, such Subsidiary or such ERISA Affiliate is required or proposes to take,
together with any notices required or proposed to be given to or filed by Holdings, such
Subsidiary, the Plan administrator or such ERISA Affiliate to or with, the PBGC or any other
governmental agency, or a Plan or Multiemployer Plan participant, and any notices received by
Holdings, such Subsidiary or ERISA Affiliate from the PBGC or other governmental agency or a Plan
or Multiemployer Plan participant or the Plan administrator with respect thereto: that a
Reportable Event has occurred (except to the extent that Holdings has previously delivered to the
Administrative Agent a notice (if any) concerning such event pursuant to the next clause hereof);
that a contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title
IV of ERISA is subject to the advance reporting requirement of PBGC Regulation Section 4043.61
(without regard to subparagraph (b)(1) thereof), and an event described in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected to occur with
respect to such Plan within the



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following 30 days; that an accumulated funding deficiency, within the meaning of Section 412 of the Code or Section 302
of ERISA, has been incurred or an application may be or has been made for a waiver or
modification of the minimum funding standard (including any required installment payments) or
an extension of any amortization period under Section 412 of the Code or Section 303 or 304 of
ERISA with respect to a Plan; that any contribution required to be made with respect to a Plan or
Multiemployer Plan or Foreign Pension Plan has been made more than sixty (60) days late; that a
Plan or Multiemployer Plan has been or may be involuntarily terminated, reorganized, partitioned or
declared insolvent under Title IV of ERISA; that a Plan or Multiemployer Plan has a material
Unfunded Current Liability; that involuntary proceedings may be or have been instituted to
terminate or appoint a trustee to administer a Plan which is subject to Title IV of ERISA; that an
involuntary proceeding has been instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan or Multiemployer Plan; that Holdings, any Subsidiary of Holdings or any
ERISA Affiliate will or may incur any material liability (including any indirect, contingent, or
secondary liability) to or on account of the termination of or withdrawal from a Plan or
Multiemployer Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with
respect to a Plan or Multiemployer Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or
Section 409 or 502(i) or 502(l) of ERISA or with respect to a group health plan (as defined in
Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the Code; or
that Holdings or any Subsidiary of Holdings may incur any liability pursuant to any employee
welfare benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to retired
employees or other former employees (other than as required by Section 601 of ERISA) or any Plan or
any Foreign Pension Plan in addition to the liability that existed on the Effective Date pursuant
to any such plan or plans by an amount that would be material to Holdings or any Subsidiary of
Holdings. To the extent that the financial statements set forth with particularity a liability for
which notice would otherwise be required to be given hereunder, a separate notice thereof shall not
be required hereunder. At the request of the Administrative Agent, Holdings and the Borrower will
deliver to the Administrative Agent copies of any records, documents or other information that must
be furnished to the PBGC with respect to any Plan pursuant to Section 4010 of ERISA. Holdings and
the Borrower will also deliver upon written request to the Administrative Agent a complete copy of
the annual report (on Internal Revenue Service Form 5500-series) of each Plan (including, to the
extent required, the related financial and actuarial statements and opinions and other supporting
statements, certifications, schedules and information) required to be filed with the Internal
Revenue Service. In addition to any notices delivered to the Administrative Agent pursuant to the
first sentence hereof, copies of annual reports and any records, documents or other information
required to be furnished to the PBGC or any other government agency, and any material notices
received by Holdings, any Subsidiary of Holdings or any ERISA Affiliate with respect to any Plan or
Foreign Pension Plan or received from any government agency or plan administrator or sponsor or
trustee with respect to any Multiemployer Plan, shall, upon request of the Administrative Agent, be
delivered to the Administrative Agent no later than twenty (20) Business Days after the date of
such request. Holdings and each of its applicable Subsidiaries shall ensure that all Foreign
Pension Plans administered by it or into which it makes payments obtain or retain (as applicable)
registered status under and as required by applicable law and is administered in a timely manner in
all respects in compliance with all applicable laws except where the failure to do any of the
foregoing has not had, and could not reasonably be expected to have, a Material Adverse Effect.



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          9.09. Good Repair. Each Credit Agreement Party will, and will cause each of its Subsidiaries to, ensure that
its material properties and equipment required to be used in its business are kept in reasonably
good repair, working order and condition, ordinary wear and tear excepted, and that from time to
time there are made in such properties and equipment all needful and proper repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto, to the extent and in the
manner useful or customary for companies in similar businesses.



          9.10. End of Fiscal Years; Fiscal Quarters. Each Credit Agreement Party will cause (i) each of its, and each of its Subsidiaries’,
fiscal years to end on the Saturday closest to December 31 of each calendar year and (ii) each of
its, and each of its Subsidiaries’, fiscal quarters to end on the last day of each period described
in the definition of “Fiscal Quarter”; provided that Foreign Subsidiaries of Holdings
(other than the Bermuda Company and the Bermuda Partnership) shall not be required to maintain the
fiscal year and fiscal quarter ends described above if it is not practicable for such Foreign
Subsidiary to maintain same as a result of foreign statutes, rules or law applicable to such
Foreign Subsidiary.



          9.11. Additional Security; Additional Guaranties; Actions with Respect to Non-Guarantor
Subsidiaries; Further Assurances. (a) Each Credit Agreement Party will, and will cause its Subsidiaries which are Credit
Agreement Parties or Subsidiary Guarantors to, grant to the Collateral Agent security interests and
mortgages (each, an “Additional Mortgage”) in: (i) each vessel acquired by such Person
after the Initial Borrowing Date and having a value (for such purpose, using the initial purchase
price paid by such Person for such vessel) in excess of $5,000,000, (ii) such fee-owned (or the
equivalent) Real Property acquired by such Person after the Initial Borrowing Date and having a
value (for such purpose, using the initial purchase price paid by such Person for such Real
Property) in excess of $10,000,000 which is not covered by the original Mortgages, and (iii) such
Leasehold Properties to which a respective landlord has granted its consent to the delivery of a
Mortgage over such Leasehold Properties (each such Real Property referred to in preceding clause
(ii) and this clause (iii), an “Additional Mortgaged Property”); provided,
however, that if the aggregate value of all Second-Tier Material Real Properties (for such
purpose, using the initial purchase price paid by such Person for the respective Second-Tier
Material Real Property) acquired by such Persons after the Initial Borrowing Date which are not
then covered by Mortgages, equals or exceeds $20,000,000, each Credit Agreement Party and each
Subsidiary Guarantor shall grant to the Collateral Agent security interests and mortgages in all
such Second-Tier Material Real Properties owned by any such Person which are not then covered by
Mortgages (and not just those required to reduce the aggregate value of all Second-Tier Material
Real Properties (determined as provided above) at such time below $20,000,000). All such
Additional Mortgages shall be granted pursuant to documentation substantially in the form of a
relevant existing Mortgage or in such other form as is reasonably satisfactory to the
Administrative Agent. All such Additional Mortgages shall constitute valid and enforceable Second
Priority Liens, superior to and prior to the rights of all third Persons and subject to no
other Liens (except as are permitted by Section 10.03), in favor of the Collateral Agent (or
such other trustee or subagent as may be required or desired under local law). The Additional
Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in
such places as are required by law to create, maintain, effect, perfect, preserve, maintain
and protect the Liens in favor of the Collateral Agent required to be granted



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pursuant to the Additional Mortgages and all taxes, fees and other charges payable in connection therewith shall be
paid in full.



          (b) Each Credit Agreement Party will, and will cause each of its Subsidiaries to, at its own
expense, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time
to time such vouchers, invoices, schedules, confirmatory assignments, confirmatory conveyances,
financing statements, transfer endorsements, confirmatory powers of attorney, certificates, reports
and other assurances or confirmatory instruments and take such further steps relating to the
Collateral covered by any of the Security Documents as the Collateral Agent may reasonably require
pursuant to this Section 9.11. Furthermore, each Credit Agreement Party will cause to be delivered
to the Collateral Agent such opinions of counsel and other related documents as may be reasonably
requested by the Collateral Agent to assure itself that this Section 9.11 has been complied with.



          (c) Subject to the provisions of following clauses (g) and (h), if at any time any Domestic
Subsidiary of the Borrower is created, established or acquired, such Subsidiary shall be required
to execute and deliver counterparts of the Subsidiaries Guaranty, the Intercompany Subordination
Agreement, the Intercreditor Agreement and such Security Documents as would have been entered into
by the respective Subsidiary if same had been a Subsidiary Guarantor on the Initial Borrowing Date,
and in each case shall take all action in connection therewith as would otherwise have been
required to be taken pursuant to Section 6 herein if such Subsidiary had been a Subsidiary
Guarantor on the Initial Borrowing Date.



          (d) In addition to the requirements contained in the Pledge Agreements, each Credit Agreement
Party agrees to pledge and deliver, or cause to be pledged and delivered, all of the Equity
Interests owned by any Credit Party of each new Unrestricted Subsidiary of Holdings established or
created (and each Subsidiary of Holdings which becomes an Unrestricted Subsidiary) after the
Initial Borrowing Date to the Collateral Agent for the benefit of the Secured Creditors pursuant to
the Pledge Agreements, provided that, subject to the provisions of Section 9.12, in the
case of any Foreign Unrestricted Subsidiary that is a corporation (or treated as such for U.S. tax
purposes) which is owned by a Credit Party, not more than 65% of the total outstanding voting
Equity Interests of such Person shall be required to be pledged in support of such Credit Party’s
obligations (x) as the Borrower under the Credit Agreement or (y) under its Guaranty in respect of
the Obligations of the Borrower.



          (e) Following any request by the Administrative Agent or the Required Lenders, Holdings or any
other Credit Party, shall, to the maximum extent permitted by applicable law (but subject to the
proviso to preceding clause (d), to the extent applicable), (x) grant security interests in such of
their Property (other than Excluded Collateral) as may be requested by the Administrative Agent or
the Required Lenders, as the case may be, in which perfected security interests do not already
exist pursuant to the Security Documents theretofore executed and delivered and, in connection therewith, the Credit Agreement Parties shall, or
shall cause the relevant Subsidiaries of Holdings which are Credit Parties to, execute and deliver
counterparts of (and thereby become parties to) the applicable Security Documents and/or Additional
Security Documents, in each case in form and substance reasonably satisfactory to the
Administrative Agent and/or (y) with respect to pledges of Equity Interests of, or promissory



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notes issued by, Persons described in Section 13.17, take such action (including, without
limitation, the execution of Additional Security Documents, the making of filings, etc.)
under the local law of the Person whose Equity Interests or promissory notes are pledged as may be
requested in order to create, preserve, protect or perfect security interests in such Equity
Interests and/or promissory notes.



          (f) The security interests required to be granted pursuant to Sections 9.11(c), (d) and (e)
shall be granted pursuant to the respective Security Documents already executed and delivered by
the Credit Parties (or other security documentation substantially similar to such Security
Documents or otherwise reasonably satisfactory in form and substance to the Collateral Agent) and
shall constitute valid and enforceable first priority perfected security interests prior to the
rights of all third Persons and subject to no other Liens (other than Permitted Liens). The Credit
Agreement Parties shall (or shall cause their respective Subsidiaries), (i) at their own expense,
to (x) execute, acknowledge and deliver, or cause the execution, acknowledgment and delivery of,
and thereafter register, file or record in any appropriate governmental office, any document or
instrument reasonably deemed by the Collateral Agent to be necessary or desirable for the creation,
perfection, maintenance, preservation and protection of the Liens on its assets intended to be
created pursuant to the relevant Security Documents and (y) take all other actions reasonably
requested by the Collateral Agent (including, without limitation, the furnishing of legal opinions)
in connection with the granting of the security interests required pursuant to Sections 9.11(c),
(d) and (e) and (ii) pay in full all taxes, fees and other charges payable in connection with the
granting of the security interests required pursuant to Sections 9.11(c), (d) and (e).



          (g) Each Credit Agreement Party agrees that each action required above by Section 9.11(a) or
(b) shall be completed as soon as possible, but in no event later than 90 days (or, in the case of
actions relating to assets located outside the United States, such greater number of days (not to
exceed 120 days) as the Administrative Agent shall agree to in its sole and absolute discretion in
any given case) after such action is requested to be taken by the Administrative Agent or the
Required Lenders. Each Credit Agreement Party further agrees that (x) each action required above
by Section 9.11(c), (d) and (f) with respect to a newly formed, created or acquired Domestic
Subsidiary, shall be completed contemporaneously with the formation, creation or acquisition of
such Domestic Subsidiary, (provided that (x) the Credit Documents required to be executed
and delivered pursuant to Section 9.11(c) by such newly formed, created or acquired Domestic
Subsidiary shall not be required to be so executed and delivered until 45 days after the formation,
creation or acquisition of such Subsidiary, (y) in the case of a Shell Corporation formed, created
or established by the Borrower or any of its Subsidiaries, such actions shall not be required to be
taken (so long as same remains a Shell Corporation) until 60 days after the formation, creation or
establishment of such Shell Corporation and (z) all actions required to be taken pursuant to the
last sentence of Section 9.11(c) and Section 9.11(e) shall be taken as promptly as practicable, and
in any event within 45 days, after Holdings or the Borrower receives the respective request from the Administrative
Agent or the Required Lenders.



          (h) Notwithstanding anything to the contrary contained in clauses (c) through (g) above, to
the extent the taking of any action as described above by a new Subsidiary acquired



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pursuant to a Permitted Acquisition, which is subject to Permitted Acquired Debt which at such
time remains in existence as permitted by Section 10.04(b)(vi), then to the extent that the terms
of the respective Permitted Acquired Debt prohibit the taking of any actions which would otherwise
be required of such Subsidiary by this Section 9.11, then the time for taking the respective
actions (to the extent prohibited by the terms of the respective Permitted Acquired Debt) shall be
extended until 10 Business Days after the earlier of (i) the date of repayment of such Permitted
Acquired Debt and (ii) the first date on which the taking of such actions would not violate the
terms of the respective issue of Permitted Acquired Debt. To the extent the terms of any Permitted
Acquired Debt prohibits the taking of actions otherwise required by this Section 9.11, upon the
request of the Administrative Agent or the Required Lenders, each Credit Agreement Party shall, or
shall cause the respective Subsidiaries of Holdings to, (x) prepay any such Permitted Acquired Debt
which is permitted to be prepaid and/or (y) use reasonable efforts to obtain such consents or
approvals as are needed so that the taking of the actions otherwise specified in this Section 9.11
would not violate the terms of the respective issue of Permitted Acquired Debt. Furthermore, to
the extent any Subsidiary which is not a Wholly-Owned Subsidiary is acquired pursuant to a
Permitted Acquisition (in accordance with the limitations contained in the definition thereof),
then for so long as such Subsidiary is not a Wholly-Owned Subsidiary, to the extent Holdings in
good faith determines that the respective Subsidiary is not able, under applicable requirements of
law (whether because of fiduciary duties under applicable law or other requirements of applicable
law) to execute and deliver a Subsidiaries Guaranty or one or more Security Documents, the
respective such Subsidiary shall not be required to become a Subsidiary Guarantor or execute and
deliver such Security Documents as otherwise required above.



          (i) In the event that the Administrative Agent or the Required Lenders at any time after the
Initial Borrowing Date determine in their reasonable discretion (whether as a result of a position
taken by an applicable bank regulatory agency or official, or otherwise) that real estate
appraisals satisfying the requirements set forth in 12 C.F.R., Part 34-Subpart C, or any successor
or similar statute, role, regulation, guideline or order (any such appraisal, a “Required
Appraisal”) are or were required to be obtained, or should be obtained, in connection with any
Mortgaged Property or Mortgaged Properties, then, within 90 days after receiving written notice
thereof from the Administrative Agent or the Required Lenders, as the case may be, Holdings shall
cause such Required Appraisal to be delivered, at the expense of Holdings, to the Administrative
Agent, which Required Appraisal, and the respective appraiser, shall be satisfactory to the
Administrative Agent.



          (j) Notwithstanding anything to the contrary contained above in this Section 9.11 or elsewhere
in this Agreement or the other Credit Documents, no Credit Party shall be required to grant a
security interest in, or Lien on, any Excluded Collateral (so long as the respective Property
constitutes Excluded Collateral), and the value of any Excluded Collateral
shall not be taken into account in making determinations pursuant to the foregoing clauses of
this Section 9.11.



          9.12. Use of Proceeds. Holdings will, and will cause each of its Subsidiaries to, use the proceeds of the Loans
for the purposes specified in Section 8.05. No Credit Agreement Party will, nor will it
permit any of its Subsidiaries to, use any of the proceeds of the



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Loans or any Letter of Credit to finance the acquisition of any Person that has not been approved and recommended by the
board of directors (or functional equivalent thereof) or the requisite shareholders of such Person.



          9.13. Ownership of Subsidiaries. (a) Notwithstanding anything to the contrary contained in this Agreement, (w) Holdings
shall at all times own directly 100% of the Equity Interests of Intermediate Holdco (except that
Intermediate Holdco may be merged with and into Holdings or the Borrower or liquidated into
Holdings), (x) Intermediate Holdco or, following any liquidation or merger of Intermediate Holdco
contemplated by subclause (w) above, Holdings shall at all times own directly 100% of the capital
stock of Corporate Holdco and the Borrower (except that Corporate Holdco may be merged with and
into Holdings, Intermediate Holdco or the Borrower or liquidated into Holdings, Intermediate Holdco
or the Borrower), (y) the Borrower shall at all times own directly or indirectly 100% of the
capital stock of the Bermuda Company and (z) subject to the proviso to the first sentence of
Section 9.17(a), Holdings shall at all times own directly or indirectly (through one or more
Wholly-Owned Domestic Subsidiaries (as opposed to through Foreign Subsidiaries)) all of the capital
stock or other Equity Interests (to the extent owned by Holdings or any of its Subsidiaries) of
each Domestic Subsidiary of Holdings. In the event of any merger or liquidation of Intermediate
Holdco in accordance with clause (w) above, all references in this Agreement or any other Credit
Document to “Intermediate Holdco” shall, as the context requires, mean the surviving company in
such merger or, in the case of a liquidation, Holdings.



          (b) Holdings shall at all times own, directly or indirectly, 100% of the capital stock or
other Equity Interests of its Subsidiaries (except to the extent (v) with respect to Foreign
Subsidiaries, directors’ qualifying shares and other nominal amounts of shares required by
applicable law to be held by Persons (other than directors) are issued from time to time (so long
as the respective Subsidiary continues to constitute a Wholly-Owned Subsidiary of Holdings), (w)
100% of the capital stock or other Equity Interests of any such Subsidiary are sold, transferred or
otherwise disposed of pursuant to a transaction permitted by Section 10.02, (x) less than 100% of
the capital stock or other Equity Interests are acquired in the respective Subsidiary pursuant to a
Permitted Acquisition which meets the criteria specified in the definition of Permitted Acquisition
contained herein, (y) such capital stock or other Equity Interests are acquired pursuant to an
Investment permitted by Sections 10.05(xv) and (xix) or (z) set forth on Schedule IX).



          9.14. Permitted Acquisitions. (a) Subject to the provisions of this Section 9.14 and the requirements contained in the
definition of Permitted Acquisition, the Borrower and any of its Wholly-Owned Subsidiaries may from
time to time effect Permitted Acquisitions, so long as (in each case except to the extent the
Required Lenders otherwise specifically agree in writing in the case of a specific Permitted
Acquisition): (i) no Default, Event of Default or Compliance Period shall be in existence at the
time of the consummation of the proposed Permitted Acquisition or immediately after giving effect
thereto; (ii) the Borrower shall have given the Administrative Agent (on behalf of the Lenders) at
least 10 Business Days’ prior written notice of the proposed Permitted
Acquisition; (iii) all representations and warranties contained herein and in the other Credit
Documents shall be true and correct in all material respects with the same effect as though such
representations and warranties had been made on




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and as of the date of such Permitted Acquisition (both before and after giving
effect thereto), unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material respects as of such
earlier date; (iv) the Borrower provides to the Administrative Agent (on behalf of the Lenders) as
soon as available but not later than 5 Business Days after the execution thereof, a copy of any
executed purchase agreement or similar agreement with respect to such Permitted Acquisition; (v)
after giving effect to such Permitted Acquisition and the payment of all post-closing purchase
price adjustments required (in the good faith determination of Holdings) in connection with such
Permitted Acquisition (and all other Permitted Acquisitions for which such purchase price
adjustments may be required to be made) and all capital expenditures (and the financing thereof)
reasonably anticipated by Holdings to be made in the business acquired pursuant to such Permitted
Acquisition within the 180-day period (such period for any Permitted Acquisition, a
“Post-Closing Period”) following such Permitted Acquisition (and in the businesses acquired
pursuant to all other Permitted Acquisitions with Post-Closing Periods ended during the
Post-Closing Period of such Permitted Acquisition), there shall exist no Compliance Period; (vi)
such proposed Permitted Acquisition shall be effected in accordance with the relevant requirements
of Section 9.17; (vii) the Borrower determines in good faith that Holdings and its Subsidiaries
taken as a whole are not likely to assume or become liable for material increased contingent
liabilities as a result of such proposed Permitted Acquisition (excluding, however, Indebtedness
permitted to be incurred pursuant to Section 10.04 in connection therewith); (viii) substantially
all of the Acquired Entity or Business acquired pursuant to the respective Permitted Acquisition is
in a Qualified Jurisdiction, provided, however, the respective proposed Permitted
Acquisition shall not be required to meet the requirements set forth above in this clause (viii) if
the Maximum Permitted Consideration payable in connection with such Permitted Acquisition, when
aggregated with the Maximum Permitted Consideration payable in connection with all other Permitted
Acquisitions consummated after the Initial Borrowing Date in which all or substantially all of the
Acquired Entity or Business so acquired were not in Qualified Jurisdictions, does not exceed
$300,000,000; and (ix) the Borrower shall have delivered to the Administrative Agent on the date of
the consummation of such proposed Permitted Acquisition, an officer’s certificate executed by an
Authorized Officer of the Borrower, certifying to the best of his knowledge, compliance with the
requirements of preceding clauses (i) through (iii), inclusive, and clauses (v) through (viii),
inclusive, and containing the calculations required by the preceding clauses (iii) and (viii).




          (b) At the time of each Permitted Acquisition involving the creation or acquisition of an
Unrestricted Subsidiary, or the acquisition of capital stock or other Equity Interests of any
Person (other than a Restricted Subsidiary of the Borrower), all capital stock or other Equity
Interests thereof created or acquired in connection with such Permitted Acquisition shall be
pledged for the benefit of the Secured Creditors as, and to the extent required by, Section 9.11
and the relevant Security Documents.




          (c) Each Credit Agreement Party shall cause each Subsidiary that is formed to effect, or is
acquired pursuant to, a Permitted Acquisition to comply with, and to execute and deliver, all of
the documentation required by, Sections 9.11 and 10.13, to the satisfaction of the Administrative
Agent.




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          (d) The consummation of each Permitted Acquisition shall be deemed to be a representation and
warranty by each Credit Agreement Party that the certifications by each Credit Agreement Party (or
by one or more of its respective Authorized Officers) pursuant to Section 9.14 are true and correct
and that all conditions thereto have been satisfied and that same is permitted in accordance with
the terms of this Agreement, which representation and warranty shall be deemed to be a
representation and warranty for all purposes hereunder, including, without limitation, Sections 8
and 11.




          9.15. Maintenance of Company Separateness. Each Credit Agreement Party will, and will cause each of its Subsidiaries to, satisfy
customary Company formalities, including the holding of regular board of directors’ and
shareholders’ meetings or action by directors or shareholders without a meeting and the maintenance
of Company records. Neither Holdings nor any other Credit Party shall make any payment to a
creditor of any Non-Guarantor Subsidiary in respect of any liability of any Non-Guarantor
Subsidiary, and no bank account of any Non-Guarantor Subsidiary shall be commingled with any bank
account of Holdings or any other Credit Party. Any financial statements distributed to any
creditors of any Non-Guarantor Subsidiary shall clearly establish or indicate the corporate
separateness of such Non-Guarantor Subsidiary from Holdings and its other Subsidiaries. Finally,
neither Holdings nor any of its Subsidiaries shall take any action, or conduct its affairs in a
manner, which is likely to result in the Company existence of any Credit Agreement Party, any other
Credit Party or any Non-Guarantor Subsidiaries being ignored, or in the assets and liabilities of
Holdings or any other Credit Party being substantively consolidated with those of any other such
Person or any Non-Guarantor Subsidiary in a bankruptcy, reorganization or other insolvency
proceeding.




          9.16. Performance of Obligations. Each Credit Agreement Party will, and will cause each of its Subsidiaries to, perform all
of its obligations under the terms of each mortgage, deed of trust, indenture, loan agreement or
credit agreement and each other material agreement, contract or instrument by which it is bound,
except such non-performances as, individually or in the aggregate, have not caused, and could not
reasonably be expected to cause, a Default or Event of Default hereunder or a Material Adverse
Effect.




          9.17. Conduct of Business. (a) The Credit Agreement Parties shall take all actions so that, at all times from and
after the Initial Borrowing Date, all the assets of Holdings and its Subsidiaries located within
the United States, all Equity Interests in all Domestic Subsidiaries or other U.S. Persons and all
or substantially all of the business of Holdings and its Subsidiaries conducted in the United
States, are, in each case, owned or conducted, as the case may be, by Holdings and one or more
Qualified Obligors which are not direct or indirect Subsidiaries of any Subsidiary of Holdings
which is a Foreign Subsidiary, provided that if a Foreign Subsidiary (not itself created or
established in contemplation of a Permitted Acquisition) is acquired pursuant to a Permitted
Acquisition which Foreign Subsidiary has (either directly or through one or more Domestic
Subsidiaries) assets or operations in the United States, Holdings shall have a reasonable period of
time (not to exceed 60 days) to effect the transfer of U.S. assets and operations (including all
Equity Interests in any Domestic Subsidiaries or other U.S. Persons held by it) of the respective
Foreign Subsidiary to one or more Qualified Obligors, provided further, that the
respective transfer shall not be required to be made if Holdings in good faith determines that such
transfer would give rise to adverse tax consequences to Holdings and its





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Subsidiaries or would give
rise to any material breach or violation of law or contract (in which case, Holdings and its
Subsidiaries shall transfer such assets and operations at such time, if any, as such adverse tax
consequences or breach or violation would not exist and, until such time, shall use good faith
efforts so that any growth in the assets or operations of the entity so acquired, to the extent
located in the United States, are made within one or more Qualified Obligors).




          (b) For the avoidance of doubt, it is understood and agreed that the foregoing provisions of
this Section 9.17 shall not prohibit the acquisition of, or Investments in, Non-Wholly-Owned
Subsidiaries as contemplated by Section 9.13(b), provided that the Equity Interest owned by
Holdings or any of its Subsidiaries in such Non-Wholly-Owned Subsidiaries, to the extent organized
under the laws of any Qualified Jurisdiction, shall be subject to the requirements of preceding
clause (a).




          9.18. Margin Stock. Each Credit Agreement Party shall take all actions so that at all times the aggregate value
of all Margin Stock (other than treasury stock) owned by Holdings and its Subsidiaries (for such
purpose, using the initial purchase price paid by Holdings or such Subsidiary for the respective
shares of Margin Stock) shall not exceed $10,000,000. So long as the aggregate value of Margin
Stock (other than treasury stock) owned by Holdings and its Subsidiaries (determined as provided in
the preceding sentence) does not exceed $10,000,000, all Margin Stock at any time owned by Holdings
and its Subsidiaries shall not constitute Collateral and no security interest shall be granted
therein pursuant to any Credit Document. Without excusing any violation of the first sentence of
this Section 9.18, if at any time the aggregate value of all Margin Stock (other than treasury
stock) owned by Holdings and its Subsidiaries (determined as provided in the first sentence of this
Section 9.18) exceeds $10,000,000, then (x) all Margin Stock owned by the Credit Parties (except to
the extent constituting Excluded Collateral) shall be pledged, and delivered for pledge, pursuant
to the relevant Security Documents and (y) the Borrower shall execute and deliver to the Lenders
appropriate completed
forms (including, without limitation, Forms G-3 and U-1, as appropriate) establishing
compliance with the Margin Regulations. If at any time any Margin Stock is required to be pledged
as a result of the provisions of the immediately preceding sentence, repayments of outstanding
Obligations shall be required to be made, and subsequent Credit Events shall only be permitted, in
compliance with the applicable provisions of the Margin Regulations.




          9.19. Landlords’ Agreements, Mortgagee Agreements, Bailee Letters and Real Estate
Purchases. Each Credit Party shall use its reasonable efforts to obtain a landlord’s agreement,
mortgagee agreement or bailee letter, as applicable, from the lessor of each leased property
(including, without limitation, farms), mortgagee of owned property or bailee with respect to any
warehouse, processor or converter facility or other location where ABL Priority Collateral with a
book value in excess of $5,000,000 is stored or located, which agreement or letter shall (unless
otherwise agreed to in writing by Administrative Agent) contain a waiver or subordination of all
Liens or claims that the landlord, mortgagee or bailee may assert against the Collateral at that
location, and shall otherwise be reasonably satisfactory in form and substance to Administrative
Agent. With respect to such locations or warehouse space leased or owned as of the Initial
Borrowing Date and thereafter, if the Collateral Agent has not received a landlord





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or mortgagee
agreement or bailee letter as of the Initial Borrowing Date (or, if later, as of the date such
location is acquired or leased), any Eligible Inventory at that location shall, in Administrative
Agent’s reasonable discretion, be subject to such Reserves as may be established by Administrative
Agent in its Permitted Discretion. Each Credit Party shall timely and fully pay and perform its
obligations under all leases and other agreements with respect to each leased location or public
warehouse where any Collateral is or may be located except to the extent that the same are being
contested in good faith.




          9.20. Post-Closing Refinancing. To the extent that the condition set forth in Section 6.07(a)(i) was not satisfied in
accordance with its terms on the Initial Borrowing Date, on the Intermediate Holdco Prepayment
Date, Intermediate Holdco and Corporate Holdco shall, or shall cause the Intermediate Holdco Paying
Agent (for and on behalf of Intermediate Holdco and Corporate Holdco) to, prepay all of the
outstanding Intermediate Holdco Indebtedness (other than indemnities not then due and payable)
(including, without limitation, the call or other premiums payable in connection therewith and all
accrued and unpaid interest thereon up to and including the Intermediate Holdco Prepayment Date) in
accordance with, and pursuant to, the terms of the Intermediate Holdco Credit Agreement and the
other Intermediate Holdco Credit Documents (the “Intermediate Holdco Prepayment
Consummation”). In connection therewith, and the satisfaction of Section 6.07(a)(i), on the
Initial Borrowing Date (with respect to the satisfaction of Section 6.07(a)(i)) or the Intermediate
Holdco Prepayment Date (in connection with the Intermediate Holdco Prepayment Consummation) and at
any time, respectively, thereafter (at the request of the Administrative Agent or the Intermediate
Holdco Paying Agent, as the case may be, from time to time), the Credit Parties shall take (and use
commercially reasonable efforts to cause the respective lenders to take) such actions (including,
without limitation, executing or obtaining appropriate lien releases and other documents) as the
Administrative Agent or the
Intermediate Holdco Paying Agent, as the case may be, may deem reasonably necessary or
desirable to (x) release any Lien granted to or held by any Person under, and pursuant to the terms
of, the Intermediate Holdco Credit Documents and (y) terminate and satisfy in full all of the
liabilities and obligations at any time arising under or in respect of the Intermediate Holdco
Credit Documents (including, without limitation, the Intermediate Holdco Indebtedness).




          9.21. Mortgage Amendments. No later than 45 days after the effective date of Amendment 1 (or such later
date as the Administrative Agent shall agree in its sole discretion), the applicable Credit Parties
shall cause to be executed and/or delivered, as applicable, to the Administrative Agent:





	 	(a)	 	with respect to each Mortgage in favor of the Administrative Agent, an amendment
(each, a “Mortgage Amendment”) duly executed and acknowledged by the applicable Credit
Party, in form and substance reasonably satisfactory to the Collateral Agent;
	 
	 	(b)	 	with respect to each Mortgage Amendment, an endorsement or other modification to the
existing Mortgage Policy relating to such Mortgaged Property providing assurance reasonably
satisfactory to the Collateral Agent that the lien on such Mortgaged Property in favor of
the Collateral Agent shall continue to have the enforceability and priority in effect
immediately prior to the effectiveness of Amendment 1;




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	 	(c)	 	with respect to each Mortgage Amendment, opinions of counsel to the Credit Parties
covering customary matters and in form and substance reasonably satisfactory to the
Collateral Agent;
	 
	 	(d)	 	with respect to each Mortgaged Property requested by the Collateral Agent, a
completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard
Determination (together with a notice about special flood hazard area status and flood
disaster assistance duly executed by the applicable Credit Parties); and
	 
	 	(e)	 	a copy of, or a certificate as to coverage under, the insurance policies required by
Section 9.03 in form and substance satisfactory to the Collateral Agent.





          SECTION 10. Negative Covenants. Each Credit Agreement Party hereby covenants and agrees that as of the Effective Date and
thereafter for so long as this Agreement is in effect and until the Total Commitment has
terminated, no Letters of Credit, Bank Guaranties or Notes are outstanding and the Loans, together
with interest, Fees and all other Obligations (other than any indemnities described in Section
13.13 which are not then due and payable) incurred hereunder, are paid in full:




          10.01.
Changes in Business; etc. (a) Holdings and its Subsidiaries will not engage in any business other than a Permitted
Business.




          (b) Notwithstanding the foregoing, Holdings will not engage in any business and will not own
any significant assets (other than its ownership of (w) cash and Cash Equivalents held by Holdings
representing proceeds from the Wellbeing Project Financing, (x) the Equity Interests of
Intermediate Holdco, (y) Intercompany Notes evidencing intercompany loans permitted to be made by
it pursuant to Section 10.05 and (z) after the issuance thereof, the Equity Interests of each of
the Unrestricted Wellbeing Joint Ventures) or have any liabilities (other than those liabilities
for which it is responsible under this Agreement, the Documents to which it is a party (including,
without limitation, the Term Credit Documents), any Shareholder Subordinated Note any Interest Rate
Protection Agreement permitted to be entered into pursuant to Section 10.04(b)(iii) and any
Intercompany Note evidencing an intercompany loan permitted to be incurred by Holdings pursuant to
Section 10.05); provided that Holdings may (i) issue Shareholder Subordinated Notes, shares
of Holdings Common Stock and options and warrants to purchase Holdings Common Stock, (ii) engage in
those activities associated with expenses indirectly paid with Dividends made to it by Intermediate
Holdco pursuant to Section 10.06(iv), (iii) engage in those activities associated with the purchase
and ownership of the Equity Interests of the Unrestricted Wellbeing Joint Ventures permitted
pursuant to Section 10.05(xx) and (iv) engage in those activities that are incidental to (x) the
maintenance of its corporate existence in compliance with applicable law, (y) legal, tax and
accounting matters in connection with any of the foregoing activities and (z) the entering into,
and performing its obligations under, this Agreement and the other Documents (including, without
limitation, the Term Credit Documents) to which it is a party.




          (c) Notwithstanding the foregoing, the Bermuda Partnership will not engage in any business and
will not own any significant assets or any cash or Cash Equivalents (other than its ownership of
Equity Interests of Foreign Subsidiaries) or have any material liabilities







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(other than those liabilities for which it is responsible under the Credit Documents to which it is a party),
provided that the Bermuda Partnership may (I) provide treasury, accounting, logistic and
other administrative support services to its Affiliates on an arms’ length basis and hold and
retain cash earned in connection with the provision of such services, (II) receive and hold
additional cash and Cash Equivalents from its Subsidiaries and/or its Affiliates, so long as same
are promptly (and in any event within one Business Day of receipt thereof) loaned, distributed
and/or contributed, subject to Section 10.01(d), to its Subsidiaries and/or Affiliates in
accordance with the requirements of Section 10.05 of this Agreement, and (III) engage in those
activities that (i) are incidental to (x) the maintenance of its Company existence in compliance
with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing
activities and (z) the entering into, and performing its obligations under, the Credit Documents to
which it is a party and (ii) are otherwise expressly permitted by this Agreement (other than
pursuant to preceding Section 10.01(a)) and the other Credit Documents.




          (d) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement
(including, without limitation, Sections 10.02 and 10.05):





     (i) the Bermuda Partnership Partners shall not collectively own or hold (x) Property
(exclusive of Property leased or operated but not owned) with a Fair Market Value in excess
of $30,000,000 at any time or (y) cash or Cash Equivalents in an aggregate in excess of
$10,000,000; provided that (v) all assets owned by the Bermuda
Partnership Partners on the Effective Date (which assets shall have a net book value on
the Effective Date not to exceed $25,000,000) shall be excluded for purposes of such
determination, (w) any cash and Cash Equivalents loaned and/or contributed to such Persons
by Affiliates of such Persons shall be excluded for purposes of such determination, so long
as same are promptly (and in any event within one Business Day) loaned and/or distributed to
other Affiliates of such Persons (other than another Bermuda Partnership Partner) in
accordance with the requirements of this Agreement, (x) any inventory owned by the Bermuda
Partnership Partners shall be excluded for purposes of such determination, (y) any Equity
Interests in the Bermuda Partnership which are held by the Bermuda Partnership Partners
shall be excluded for purposes of such determination and (z) any intercompany receivable
owed to a Bermuda Partnership Partner by Dole Settlement Company shall be excluded for
purposes of such determination, so long as (I) both Dole Settlement Company (as obligor) and
the respective Bermuda Partnership Partner (as obligee) are parties to the Intercompany
Subordination Agreement and (II) such intercompany receivable is at all times subject to the
subordination provisions contained in the Intercompany Subordination Agreement;




     (ii) no Bermuda Partnership Partner shall merge, consolidate with or be liquidated or
dissolved into any other Person, provided, however, that any Bermuda
Partnership Partner may merge or consolidate with or into any other Wholly-Owned Domestic
Subsidiary of the Borrower formed for the sole purpose of reincorporating such Bermuda
Partnership Partner in a different jurisdiction, so long as the surviving entity of such
merger or consolidation remains a “Bermuda Partnership Partner” for all purposes of this
Agreement and the other Credit Documents (subject to and bound by all terms and covenants
herein and therein applicable to a “Bermuda Partnership Partner”);



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     (iii) no Bermuda Partnership Partner shall engage in any business other than a business
which is the same or reasonably related to the business in which such Bermuda Partnership
Partner is engaged on the Initial Borrowing Date;




     (iv) no later than one Business Day following the date upon which any Bermuda
Partnership Partner receives or generates an Account (as defined in the U.S. Security
Agreement), such Account shall be sold on a non-recourse basis to Dole Settlement Company
(at a discount of 2%) in exchange for a note payable (which shall at all times be subject to
the subordination provisions contained in the Intercompany Subordination Agreement) and/or
the assumption of a payable or payables owing by such Bermuda Partnership Partner to its
relevant Subsidiary which sells fruit, inventory or other Property, or provides shipping
services, to such Bermuda Partnership Partner (which assumed liabilities shall also be
subject to the subordination provisions contained in the Intercompany Subordination
Agreement); and




     (v) upon the occurrence and during the continuance of any Specified Default or any
Event of Default under Section 11.01 or 11.05, unless otherwise directed by the
Administrative Agent or the Required Lenders, (x) neither the Borrower nor any of its
Subsidiaries shall sell fruit, inventory or other Property to, or contract to perform
shipping services for, any Bermuda Partnership Partner, (y) the Borrower and its
Subsidiaries shall sell to Dole Settlement Company fruit, inventory and other Property
formerly sold to, and shall contract with Dole Settlement Company to sell shipping services
formerly contracted with, any Bermuda Partnership Partner and (z) no Bermuda Partnership
Partner shall be permitted to receive any Dividends or the proceeds of any intercompany
loans or advances from any of its Affiliates.



          (e) Notwithstanding the foregoing, the Excluded Domestic Subsidiary will not engage in any
business and will not own any assets or have any liabilities; provided that the Excluded
Domestic Subsidiary may engage in those activities that are incidental to (x) the maintenance or
termination of its corporate existence in compliance with applicable law, and (y) legal, tax and
accounting matters in connection with any of the foregoing activities.




          (f) Notwithstanding the foregoing, no Excluded Bermuda Insurance Company will engage in any
business (other than the insurance related business conducted by it on the Original Effective Date
(including, without limitation, its business as a captive insurer for Holdings and its Affiliates
with respect to property, casualty and liability insurance (including workers compensation
insurance))) and will not own any Equity Interests or any other significant assets (other than
assets used in the conduct of its business as described above) or have any liabilities (other than
those liabilities under the Documents to which it is a party and those liabilities incurred in the
ordinary course of its business as described above); provided that an Excluded Bermuda
Insurance Company may engage in those activities that are incidental to (x) the maintenance of its
Company existence in compliance with applicable law, (y) legal, tax and accounting matters in
connection with any of the foregoing activities and (z) the entering into, and performing its
obligations under, this Agreement and the other Documents to which it is a party.





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          (g) Notwithstanding anything to the contrary contained above in this Section or elsewhere in
this Agreement, at no time shall Holdings or any Subsidiary of Holdings be an obligor or an obligee
with respect to any Intercompany Debt, unless each obligor (including each Person which is a
guarantor thereof) and each obligee with respect thereto are party to the Intercompany
Subordination Agreement; provided however, that the provisions hereof shall not
apply to those Non-Wholly Owned Subsidiaries listed on Schedule XIV.




          (h) Notwithstanding the foregoing, no Excluded Foreign Subsidiary will engage in any business
or own any assets (other than (x) Equity Interests of another Excluded Foreign Subsidiary and (y)
immaterial assets with a Fair Market Value not exceeding $25,000) or have any liabilities;
provided that any Excluded Foreign Subsidiary may engage in those activities that are
incidental to (x) the maintenance or termination of its corporate existence in compliance with
applicable law and (y) legal, tax and accounting matters in connection with any of the foregoing
activities.




          (i) Holdings shall not permit any Unrestricted Wellbeing Joint Venture to engage in any
business other than the development, construction and operation of a well being
center/hotel/spa/conference center/studio and reasonably related extensions thereof (including the
promotion of nutritional education, production and distribution of nutrition- or health-oriented
programming on cable television and the sale of educational videos).



Notwithstanding the foregoing, Intermediate Holdco will not engage in any business and will not own
any significant assets (other than its ownership of the capital stock of the Borrower and Corporate
Holdco and Intercompany Notes evidencing intercompany loans permitted to be made by it pursuant to
Section 10.05) or have any liabilities (other than those liabilities for which it is responsible
under this Agreement, the Documents (including, without limitation, the Term Credit Documents) to
which it is a party and any Intercompany Note evidencing an intercompany loan permitted to be
incurred by it pursuant to Section 10.05); provided that Intermediate Holdco may (i) engage
in those activities associated with expenses paid with Dividends made by the Borrower pursuant to
Section 10.06(iv) and (ii) engage in those activities that are incidental to (x) the maintenance of
its corporate existence in compliance with applicable law, (y) legal, tax and accounting matters in
connection with any of the foregoing activities and (z) the entering into, and performing its
obligations under, this Agreement and the other Documents to which it is a party.



Notwithstanding the foregoing, Corporate Holdco will not engage in any business and will not own
any significant assets or have any liabilities (other than those liabilities for which it is
responsible under this Agreement and the Documents (including, without limitation, the Term Credit
Documents) to which it is a party); provided that Corporate Holdco may (i) engage in those
activities associated with expenses indirectly paid with Dividends made by the Borrower pursuant to
Section 10.06(iv) and (ii) engage in those activities that are incidental to (x) the maintenance of
its corporate existence in compliance with applicable law, (y) legal, tax and accounting matters in
connection with any of the foregoing activities and (z) the entering into, and performing its
obligations under, this Agreement and the other Documents to which it is a party.





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          10.02. Consolidation; Merger; Sale or Purchase of Assets; etc. No Credit Agreement Party will, nor will permit any of its respective Subsidiaries to, wind
up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or
convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter
into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of
related transactions) any part of the property or assets (other than purchases or other
acquisitions of inventory, materials and equipment in the ordinary course of business) of any
Person or agree to do any of the foregoing at any future time, except that the following shall be
permitted:





     (i) the Borrower and its Subsidiaries may lease (as lessee) or license (as licensee)
real or personal property (including intellectual property) in the ordinary course of
business (so long as any such lease or license does not create a Capitalized Lease
Obligation);




     (ii) Capital Expenditures by the Borrower and its Subsidiaries;




     (iii) any Investments permitted pursuant to Section 10.05;




     (iv) the Borrower and its Subsidiaries may, in the ordinary course of business, sell or
otherwise dispose of assets (excluding capital stock of, or other Equity Interests in,
Subsidiaries and joint ventures) which, in the reasonable opinion of such Person, are
obsolete, uneconomic or worn-out;




     (v) the Borrower and its Subsidiaries may sell assets (other than (I) the capital stock
or other Equity Interests of any Wholly-Owned Subsidiary unless all of the capital stock or
other Equity Interests of such Wholly-Owned Subsidiary are sold in accordance with this
clause (v) and (II) assets subject to a Contemplated Asset Sale (which shall be governed by
Section 10.02(xviii)), so long as (v) no Default or Event of Default then exists or would
result therefrom, (w) each such sale is in an arm’s-length transaction and the Borrower or
the respective Subsidiary receives at least Fair Market Value, (x) except for customary
post-closing adjustments (to be paid in cash within 180 days following the closing of the
respective sale or disposition), at least 75% of the total consideration received by the
Borrower or such Subsidiary is paid in cash at the time of the closing of such sale or
disposition (provided that sales of assets for aggregate consideration of
$20,000,000 (taking the Fair Market Value of any non-cash consideration) in any Fiscal Year
of Holdings shall not be subject to the minimum cash requirement set forth above in this
subclause (x)), (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to
the extent) required by Section 5.02(b) and (z) the aggregate amount of the proceeds
received from all assets sold pursuant to this clause (v) shall not exceed $150,000,000 in
any Fiscal Year of Holdings;




     (vi) each of the Borrower and its Subsidiaries may sell or discount, in each case
without recourse and in the ordinary course of business, overdue accounts receivable arising
in the ordinary course of business, but only in connection with the compromise or collection
thereof and not as part of any financing transaction;



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     (vii) each of the Borrower and its Subsidiaries may grant licenses, sublicenses, leases
or subleases to other Persons not materially interfering with the conduct of the business of
the Borrower or any of its Subsidiaries, in each case so long as no such grant otherwise
affects the Collateral Agent’s security interest in the asset or property subject thereto;




     (viii) subject to Sections 10.01(c) and (d), transfers of assets (w) pursuant to the
Foreign Asset Transfer, (x) among the Qualified Obligors (other than Holdings, Intermediate
Holdco and Corporate Holdco), (y) by any Subsidiary of the Borrower to any Qualified Obligor
(other than Holdings, Intermediate Holdco and Corporate Holdco), and (z) by any Foreign
Subsidiary of the Borrower to any Wholly-Owned Foreign Subsidiary of the Borrower, in the
case of any such transfer, so long as (I) no Specified Default and no Event of Default then
exists or would exist immediately after giving effect to the respective transfer, (II) any
security interests granted to the Collateral Agent for the benefit of the Secured Creditors
pursuant to the relevant Security Documents in the assets so transferred shall remain in
full force and effect and perfected and enforceable (to at least the same extent as in
effect immediately prior to such transfer) and (III) if the respective transferor is party
to a Guaranty, the nature and scope of the obligations of such transferor under its Guaranty
are substantially
identical to the nature and scope of the obligations of the respective transferee under
its Guaranty;




     (ix) subject to Sections 10.01(c) and (d), (v) Corporate Holdco may be merged with and
into Intermediate Holdco, Holdings or the Borrower in a transaction in which Intermediate
Holdco, Holdings or the Borrower is the surviving company and Corporate Holdco may be
liquidated into Intermediate Holdco, the Borrower or Holdings, (w) Intermediate Holdco may
be merged with and into Holdings or the Borrower in a transaction in which Holdings or the
Borrower is the surviving corporation and Intermediate Holdco may be liquidated into
Holdings, (x) any Domestic Subsidiary of the Borrower may be merged, consolidated or
liquidated with or into the Borrower (so long as the Borrower is the surviving corporation
of such merger, consolidation or liquidation) or any Subsidiary Guarantor (so long as a
Subsidiary Guarantor is the surviving corporation of such merger, consolidation or
liquidation), and (y) any Foreign Subsidiary of the Borrower may be merged, consolidated or
liquidated with or into any Wholly-Owned Foreign Subsidiary of the Borrower, so long as such
Wholly-Owned Foreign Subsidiary is the surviving corporation of such merger, consolidation
or liquidation; provided that any such merger, consolidation or liquidation shall
only be permitted pursuant to this Section 10.02 (ix), so long as (I) no Specified Default
and no Event of Default then exists or would exist immediately after giving effect thereto,
(II) any security interests granted to the Collateral Agent for the benefit of the Secured
Creditors in the assets (and Equity Interests) of any such Person subject to any such
transaction shall remain in full force and effect and perfected and enforceable (to at least
the same extent as in effect immediately prior to such merger, consolidation or liquidation)
and (III) if the Person to be merged, consolidated or liquidated into another Person as
contemplated above is party to a Guaranty, the nature and scope of the obligations of such
Person under its Guaranty are substantially identical to the nature and scope of the
obligations of such other Person under its Guaranty;



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     (x) subject to Sections 10.01(c) and (d), the Borrower and its Subsidiaries may
transfer inventory in a non-cash or cash transfer to Wholly-Owned Subsidiaries of the
Borrower that are not Qualified Obligors, in each case so long as (I) any such transfer is
made in the ordinary course of its business and consistent with past practice of the
Borrower and its Subsidiaries as in effect on the Effective Date, (II) if the respective
transfer is being made to any Credit Party, all actions needed to maintain the perfection,
priority and enforceability of the security interests, if any, of the Collateral Agent in
the assets so transferred are taken at the time of the respective transfer, (III) the
Borrower reasonably determines that the transfer is not reasonably likely to be adverse to
the interests of the Lenders in any material respect and (IV) no Specified Default and no
Event of Default then exists or would exist immediately after giving effect to the
respective transfer;




     (xi) subject to Sections 10.01(c) and (d), so long as no Specified Default and no Event
of Default exists at the time of the respective transfer or immediately after giving effect
thereto, Qualified Obligors shall be permitted to transfer additional assets (other than
inventory, cash, Cash Equivalents and Equity Interests in any Credit Party) to
other Subsidiaries of the Borrower, so long as cash in an amount at least equal to the
Fair Market Value of the assets so transferred is received by the respective transferor;




     (xii) the Borrower and its Subsidiaries may sell or exchange specific items of
equipment, so long as the purpose of each such sale or exchange is to acquire (and results
within 90 days of such sale or exchange in the acquisition of) replacement items of
equipment which are useful in a Permitted Business;




     (xiii) the U.S. Dole Group shall be permitted to make Permitted Acquisitions, so long
as such Permitted Acquisitions are effected in accordance with the requirements of Section
9.14;




     (xiv) one or more Subsidiaries identified to the Agents may sell all of the Equity
Interests of a certain Subsidiary of the Borrower owned by such Subsidiaries and identified
to the Agents, so long as (v) no Default or Event of Default then exists or would result
therefrom, (w) each such sale is in an arm’s-length transaction and the respective
Subsidiary receives at least Fair Market Value, (x) except for customary post-closing
adjustments, at least 20% of the total consideration received by such Subsidiaries (in the
aggregate) is paid in cash at the time of the closing of such sale or disposition, (y) the
Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by
Section 5.02(b) and (z) the aggregate amount of the consideration (taking the Fair Market
Value of any non-cash consideration) received from all assets sold pursuant to Section
(xiv), together with the sale or sales made pursuant to Section 10.02(xx), shall not exceed
$50,000,000;




     (xv) the Sale-Lease Back Transaction;




     (xvi) each of the Borrower and its Subsidiaries may sell or liquidate Cash Equivalents,
in each case for cash at fair market value (as reasonably determined by the Borrower or the
respective Subsidiary);



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     (xvii) the Borrower and its Subsidiaries may sell inventory to their respective
customers in the ordinary course of business;




     (xviii) each of the Borrower and its Subsidiaries may effect Contemplated Asset Sales,
so long as (i) no Event of Default then exists or would exist immediately after giving
effect thereto, (ii) each such sale is an arms’-length transaction and the Borrower or the
respective Subsidiary receives at least Fair Market Value, (iii) the consideration therefor
consists solely of cash and/or Permitted Installment Notes (to the extent same may be issued
in accordance with the definition thereof), (iv) at least 50% of the total consideration
received by the Borrower or such Subsidiary is paid in cash at the time of the closing of
such sale, and (v) the Net Sale Proceeds therefrom are applied as, and to the extent,
required by Section 5.02(b);




     (xix) the Borrower and its Domestic Subsidiaries may sell and leaseback (i) Real
Property located in Gaston County, North Carolina (the “Gaston Property”), to the extent
same is not a Principal Property and (ii) Principal Properties, so long as (v) no
Default or Event of Default then exists or would result therefrom, (w) each such sale
is made pursuant to an arm’s-length transaction, (x) 100% of the total consideration
received by the Borrower or such Subsidiary is paid in cash at the time of the closing of
such sale, (y) the Net Sale Proceeds therefrom equal at least 90% of the Fair Market Value
of the Property subject to such sale-leaseback transaction and (z) the Net Sale Proceeds
therefrom are applied as a mandatory repayment and/or commitment reduction and/or
reinvested, in any case, in accordance with the requirements of Section 5.02(b); and




     (xx) certain Domestic Subsidiaries of the Borrower identified to the Agents may sell
the Equity Interests of certain other Domestic Subsidiaries identified to the Agents which
own Real Property located in California, and certain Domestic Subsidiaries identified to the
Agents which own Real Property located in California may sell Real Property and other
assets, in each case, so long as (v) no Default or Event of Default then exists or would
result therefrom, (w) each such sale is in an arm’s-length transaction and the respective
Subsidiary receives at least Fair Market Value, (x) except for customary post-closing
adjustments, at least 75% of the total consideration received by such Subsidiaries (in the
aggregate) is paid in cash at the time of the closing of such sale, (y) unless on-loaned to
an Affiliate of a Borrower in accordance with the requirements of Sections 10.05 and 10.07
promptly following the consummation of such sale, any Net Sale Proceeds therefrom received
by a Subsidiary of a Borrower (exclusive of any portion thereof which is distributed to a
minority shareholder of such Subsidiary in accordance with the requirements of Section
10.06) are applied and/or reinvested as (and to the extent) required by Section 5.02(b) and
(z) the aggregate amount of the consideration (taking the Fair Market Value of any non-cash
consideration) received from such sale or sales pursuant to Section (xx), together with the
sale or sales made pursuant to Section 10.02(xiv) shall not exceed $50,000,000 (the
“California Disposition”).



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Notwithstanding anything to the contrary contained above in this Section 9.02, in no event shall
Holdings or any of its Subsidiaries enter into any sale-leaseback transactions, except (x) in
accordance with Sections 10.02(xv) and (xix) above and (y) for the sale-leaseback of (A) the
Vessels: Tropical Mist, Tropical Star and Tropical Sky, (B) the real property, fixtures and related
assets located at 639 South Sanborn Road, Salinas, California and (C) the approximately 2,895 acres
farmed, on the effective date of Amendment 1, by the Borrower and its Subsidiaries in the following
parcels on the island of Oahu in the State of Hawaii: TMKs 6-4-1-1, 6-4-1-6, 6-4-3-1, 6-4-3-3,
6-4-4-1, 6-4-4-8, 6-5-1-2, 6-5-2-11 and 6-7-9-3. The foregoing provisions of this Section 10.02 are
subject to continued compliance by the Credit Agreement Parties and their Subsidiaries with the
requirements of Sections 9.18, 10.01 and 10.13. To the extent the Required Lenders waive the
provisions of this Section 10.02 with respect to the sale or other disposition of any Collateral,
or any Collateral is sold or otherwise disposed of as permitted by this Section 10.02, such
Collateral (unless transferred to Holdings or a Subsidiary thereof) shall be sold or otherwise
disposed of free and clear of the Liens created by the Security Documents and the Administrative
Agent shall take such actions (including, without limitation, directing the Collateral Agent to
take such actions) as are appropriate in connection therewith.




          10.03. Liens. No Credit Agreement Party will, nor will permit any of its Subsidiaries to, create, incur,
assume or suffer to exist any Lien upon or with respect to any property or assets of any kind (real
or personal, tangible or intangible) of Holdings or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an understanding or agreement,
contingent or otherwise, to repurchase such property or assets (including sales of accounts
receivable or notes with recourse to Holdings or any of its Subsidiaries) or assign any right to
receive income or permit the filing of any financing statement under the UCC or any other similar
notice of Lien under any similar recording or notice statute; provided that the provisions
of this Section 10.03 shall not prevent the creation, incurrence, assumption or existence of the
following (Liens described below are herein referred to as “Permitted Liens”):





     (i) inchoate Liens for taxes, assessments or governmental charges or levies not yet due
and payable or Liens for taxes, assessments or governmental charges or levies being
contested in good faith and by appropriate proceedings for which adequate reserves have been
established in accordance with U.S. GAAP;




     (ii) Liens in respect of property or assets of the Borrower or any of its Subsidiaries
imposed by law which were incurred in the ordinary course of business and which have not
arisen to secure Indebtedness for borrowed money, such as carriers’, warehousemen’s and
mechanics’ Liens, statutory landlord’s Liens, maritime Liens and other similar Liens arising
in the ordinary course of business, and which either (x) do not in the aggregate materially
detract from the value of such property or assets or materially impair the use thereof in
the operation of the business of the Borrower or any of its Subsidiaries or (y) are being
contested in good faith by appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or asset subject to such Lien;



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     (iii) (x) Liens created by or pursuant to this Agreement and the Security Documents,
(y) Liens created by or pursuant to the Term Credit Agreement and the Term Security
Documents, in favor of the Term Collateral Agent for the benefit of the Term Secured
Creditors (it being understood and agreed that the obligations under or relating to the
Intermediate Holdco Credit Documents may be secured by the Intermediate Holdco Collateral
pursuant to the Term Pledge Agreement, on a “second-priority” basis to the obligations under
the Term Credit Documents, all in accordance with the terms of the Term Pledge Agreement),
as in effect on the date hereof and as amended, supplemented or modified from time to time
in accordance with the terms of the Intercreditor Agreement securing Indebtedness incurred
pursuant to clause (xxiii) of Section 10.04 (and, to the extent described above,
Intermediate Holdco Indebtedness) and (z) Liens (but only on the Collateral of the Credit
Parties) securing Permitted Refinancing Senior Notes issued or given in exchange for, or the
proceeds of which are used to, refinance, renew, replace or refund any of the Existing 2009
Senior Notes or Existing 2010 Senior Notes, so long as such Permitted Refinancing Senior
Notes constitute Notes Obligations (as defined in the Intercreditor Agreement) and are
otherwise permitted to be secured by the definition of “Permitted Refinancing Senior Notes”;




     (iv) Liens in existence on the Initial Borrowing Date which are listed, and the
property subject thereto described, in Schedule XVIII, but only to the respective date, if
any, set forth in such Schedule XVIII for the removal, replacement and termination of any
such Liens, plus renewals, replacements and extensions of such Liens,
provided that (x) the aggregate principal amount of the Indebtedness, if any,
secured by such Liens does not increase from that amount outstanding at the time of any such
renewal, replacement or extension and (y) any such renewal, replacement or extension does
not encumber any additional assets or properties of the Borrower or any of its Subsidiaries;




     (v) Liens (x) arising from judgments, decrees or attachments in circumstances not
constituting an Event of Default under Section 11.09, (y) arising in connection with the
deposit or payment of cash or other Property with or to any court or other governmental
authority in connection with any pending claim or litigation and (z) arising in connection
with the deposit of cash or other Property in connection with the issuance of stay and
appeal bonds, provided that the Fair Market Value of all Property (including cash)
subject to Liens pursuant to this clause (v) (whether pledged, paid, deposited or otherwise)
shall not exceed at any time the sum of (1) $75,000,000 (net of any insurance proceeds
actually received (and not returned) by the Borrower and its Subsidiaries in connection
therewith) plus (2) in the case of Properties of Subsidiaries of the Borrower
located outside the United States and subject to a Lien pursuant to this clause (v), an
additional $50,000,000 (net of any insurance proceeds actually received (and not returned)
by the Borrower and its Subsidiaries in connection therewith), if (and only if), in the case
of this sub-clause (2), the Borrower shall have caused to be delivered to the Administrative
Agent an opinion of counsel in form and substance, and from counsel, reasonably satisfactory
to the Administrative Agent to the effect that such counsel expects a favorable judicial
outcome with respect to the judgment, decree, attachment, claim or litigation that gave rise
to the Lien on the respective Property, provided further, however, that (I)
in no event shall the Fair Market Value of all Property (including cash)



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of Holdings and its
Subsidiaries located in the United States and subject to Liens pursuant to this clause (v)
(whether pledged, paid, deposited or otherwise) exceed $25,000,000 at any time and (II) in
the case of any non-consensual attachment on the Property of any Subsidiary of the Borrower
located outside the United States, the Fair Market Value of such Property shall not be
included for purposes of calculating compliance with the immediately preceding proviso;




     (vi) Liens (other than any Lien imposed by ERISA) (x) incurred or deposits made in the
ordinary course of business of the Borrower and its Subsidiaries in connection with workers’
compensation, unemployment insurance and other types of social security, (y) to secure the
performance by the Borrower and its Subsidiaries of tenders, statutory obligations (other
than excise taxes not described in Section 10.03(i)), surety and customs bonds, statutory
bonds, bids, leases, government contracts, trade contracts, performance and return of money
bonds and other similar obligations (exclusive of (I) obligations for the payment of
borrowed money and (II) stay and appeal bonds and other obligations described in Section
10.03(v) above) or (z) to secure the performance by the Borrower and its Subsidiaries of
leases of Real Property, to the extent incurred or made in the ordinary course of business
consistent with past practices,
provided that the aggregate Fair Market Value of all Property pledged or
deposited at any time pursuant to preceding sub-clauses (y) and (z) shall not exceed
$25,000,000 in the aggregate (it being understood that letters of credit and bank guaranties
issued in support of customs bonds, licensing arrangements and similar obligations do not
constitute Property pledged or deposited to support such obligations);




     (vii) licenses, sublicenses, leases or subleases granted to third Persons in the
ordinary course of business not interfering in any material respect with the business of the
Borrower or any of its Subsidiaries;




     (viii) (x) Permitted Encumbrances and (y) easements, rights-of-way, restrictions,
encroachments, municipal and zoning ordinances and other similar charges or encumbrances,
and minor title deficiencies, in each case not securing Indebtedness and not materially
interfering with the conduct of the business of Holdings or any of its Subsidiaries;




     (ix) Liens of a lessor arising under any operating lease entered into by the Borrower
and its Subsidiaries in the ordinary course of business and relating solely to such lease
and the assets leased thereunder;




     (x) Liens upon assets of the Borrower or any of its Subsidiaries subject to Capitalized
Lease Obligations permitted pursuant to Section 10.04(b)(iv), provided that (x) such
Liens only serve to secure the payment of Indebtedness arising under such Capitalized Lease
Obligation and (y) the Lien encumbering the asset giving rise to the Capitalized Lease
Obligation does not encumber any other asset of the Borrower or any of its Subsidiaries;



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     (xi) Liens arising pursuant to purchase money mortgages or security interests securing
Indebtedness representing the purchase price (or financing of the purchase price within 30
days after the respective purchase) of assets acquired after the Initial Borrowing Date by
the Borrower and its Subsidiaries, provided that (x) any such Liens attach only to
the assets so purchased, (y) the Indebtedness secured by any such Lien does not exceed 100%
of the Fair Market Value or the purchase price of the property being purchased at the time
of the incurrence of such Indebtedness and (z) the Indebtedness secured thereby is permitted
to be incurred pursuant to Section 10.04(b)(iv);




     (xii) Liens on property or assets acquired pursuant to a Permitted Acquisition, or on
property or assets of a Subsidiary of the Borrower in existence at the time such Subsidiary
is acquired pursuant to a Permitted Acquisition, provided that (i) any Indebtedness
that is secured by such Liens is permitted to exist under Section 10.04(b)(vi), (ii) such
Liens are not incurred in connection with, or in contemplation or anticipation of, such
Permitted Acquisition and do not attach to any other asset of the Borrower or any of its
Subsidiaries and (iii) such Liens do not apply to ABL Priority Collateral;




     (xiii) restrictions imposed in the ordinary course of business and consistent with past
practices on the sale or distribution of designated inventory pursuant
to agreements with customers under which such inventory is consigned by the customer or
such inventory is designated for sale to one or more customers;




     (xiv) Liens in favor of customs or revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;




     (xv) bankers’ liens, rights of setoff and other similar liens existing solely with
respect to cash and Cash Equivalents on deposit in one or more of the accounts described
below, in each case granted in the ordinary course of business in favor of the bank or banks
with which the accounts are maintained, securing amounts owing to such bank with respect to
cash management and operating account arrangements, including those involving pooled
accounts and netting arrangements, provided that in no case shall any such Liens
secure (either directly or indirectly) the repayment of any Indebtedness;




     (xvi) Liens securing Permitted Refinancing Indebtedness permitted pursuant to Section
10.04(b)(vii) to the extent such Liens comply with clause (b)(ii) of the definition of
Permitted Refinancing Indebtedness;




     (xvii) Liens on the assets of a Foreign Subsidiary (other than the Bermuda Partnership)
securing Indebtedness incurred by such Foreign Subsidiary in accordance with the terms of
Section 10.04(b)(viii);




     (xviii) Liens over promissory notes evidencing grower loans pledged in favor of
financial institutions securing Indebtedness permitted to be incurred pursuant to clause (x)
of Section 10.04(b)(xviii)(x);



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     (xix) other Liens of the Borrower or any Subsidiary of the Borrower that (w) were not
incurred in connection with borrowed money, (x) do not materially impair the use of such
Property in the operation of the business of the Borrower or such Subsidiary, (y) do not
encumber any Accounts or Inventory or other ABL Priority Collateral and (z) do not secure
obligations in excess of $100,000,000 in the aggregate for all such Liens; and




     (xx) until the Intermediate Holdco Prepayment Consummation, Liens may be created (and
exist) on the Intermediate Holdco Prepayment Funds (and proceeds thereof) in favor of the
Intermediate Holdco Paying Agent to secure the repayment of the Intermediate Holdco
Indebtedness as required pursuant to Sections 6.07 and 9.20 hereof.


In connection with the granting of Liens of the type described in clauses (iv), (ix), (x), (xi),
(xii), (xvi), (xvii), (xix) and (xx) of this Section 10.03 by the Borrower or any of its
Subsidiaries, the Administrative Agent and the Collateral Agent shall be authorized, at the request
of any Credit Agreement Party, to take any actions deemed appropriate by it in connection therewith
(including, without limitation, by executing appropriate lien releases or lien subordination
agreements in favor of the holder or holders of such Liens, in either case solely with respect to
the assets subject to such Liens).




          10.04. Indebtedness. (a) No Credit Agreement Party will, nor will permit any of its Subsidiaries to contract,
create, incur, assume or suffer to exist (collectively, “incur”) any Indebtedness;
provided, however, that the Borrower and each Domestic Subsidiary of the Borrower
which is a Credit Party may incur Indebtedness (which may be guaranteed by any Credit Party) so
long as: (i) the Total Leverage Ratio at such time does not exceed 5.50:1.00; (ii) the Senior
Secured Leverage Ratio at such time does not exceed 3.00:1.00 (in each case, both immediately prior
to the incurrence of such Indebtedness and immediately after giving effect thereto); and (iii) no
Default or Event of Default then exists or would result therefrom.




          (b) The foregoing limitations in Section 10.04(a) will not apply to the following (each, a
“Permitted Indebtedness”):





     (i) Indebtedness incurred pursuant to this Agreement, and the other Credit Documents;




     (ii) Scheduled Existing Indebtedness outstanding on the Initial Borrowing Date and
listed on Schedule IV, without giving effect to any subsequent extension, renewal or
refinancing thereof, except that Scheduled Existing Indebtedness may be refinanced through
one or more issuances of Permitted Refinancing Indebtedness in accordance with Section
10.04(b)(vii) below;




     (iii) Indebtedness of (x) the Borrower under Interest Rate Protection Agreements
entered into to protect them against fluctuations in interest rates in respect of
Indebtedness otherwise permitted under this Agreement and (y) Holdings under an Interest
Rate Protection Agreement entered into to protect it against fluctuations in



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interest rates
in respect of the Wellbeing Project Financing, in each case, so long as the entering into of
such Interest Rate Protection Agreements are bona fide hedging activities
and are not for speculative purposes;




     (iv) Capitalized Lease Obligations and Indebtedness of the Borrower and its
Subsidiaries representing purchase money Indebtedness secured by Liens permitted pursuant to
Section 10.03(xi), provided that the sum of (x) the aggregate Capitalized Lease
Obligations outstanding at any time plus (y) the aggregate principal amount of such
purchase money Indebtedness outstanding at any time shall not exceed $25,000,000;




     (v) intercompany Indebtedness of (w) the Borrower and its Subsidiaries to the extent
permitted by Sections 10.05(vi) and (xvii), (x) the Borrower owed to Intermediate Holdco to
the extent permitted by Section 10.05(xxii), (y) Intermediate Holdco owed to the Borrower or
Holdings to the extent permitted by Section 10.05(xxi) or (xxii), as the case may be, and
(z) Holdings owed to Intermediate Holdco to the extent permitted by Section 10.05(xxi);




     (vi) Indebtedness of a Subsidiary of the Borrower acquired pursuant to a Permitted
Acquisition (or Indebtedness assumed at the time of a Permitted Acquisition of an asset
securing such Indebtedness) (such Indebtedness, “Permitted Acquired Debt”),
provided that (x) such Indebtedness (A) is not secured by Liens on ABL Priority
Collateral and (B) was not incurred in connection with, or in anticipation or
contemplation of, such Permitted Acquisition and (C) the aggregate principal amount of
all Indebtedness outstanding pursuant to this Section 10.05(vi) at any time (exclusive of
any such Indebtedness held by a Qualified Obligor which is not guaranteed by Holdings or any
of its other Subsidiaries and is not secured by a Lien on any Property of Holdings or any of
its Subsidiaries), when added to the aggregate principal amount of Permitted Refinancing
Indebtedness outstanding pursuant to Section 10.04(b)(vii) at any time (except to the extent
incurred to refinance Scheduled Existing Indebtedness or Permitted Acquired Debt held by a
Qualified Obligor which is not guaranteed by Holdings or any of its other Subsidiaries and
is not secured by a Lien on any Property of Holdings or any of its Subsidiaries and
successive refinancings of the foregoing), shall not exceed $50,000,000;




     (vii) Permitted Refinancing Indebtedness, so long as (x) no Specified Default, Event of
Default or Compliance Period is in existence at the time of the incurrence of such Permitted
Refinancing Indebtedness and immediately after giving effect thereto and (y) the aggregate
principal amount of Permitted Refinancing Indebtedness outstanding pursuant to this Section
10.05(vii) at any time (except to the extent incurred to refinance Scheduled Existing
Indebtedness or Permitted Acquired Debt held by a Qualified Obligor which is not guaranteed
by Holdings or any of its other Subsidiaries and is not secured by a Lien on any Property of
Holdings or any of its Subsidiaries and successive refinancings of the foregoing), when
added to the aggregate principal amount of Permitted Acquired Debt outstanding pursuant to
Section 10.04(b)(vi) at any time (exclusive of any such Indebtedness held by a Qualified
Obligor which is not guaranteed by Holdings or any of



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its other Subsidiaries and is not
secured by a Lien on any Property of Holdings or any of its Subsidiaries), shall not exceed
$50,000,000;




     (viii) Indebtedness of Foreign Subsidiaries of the Borrower (other than the Bermuda
Partnership) under lines of credit to any such Foreign Subsidiary from Persons other than
Holdings or any of its Subsidiaries, the proceeds of which Indebtedness are used for such
Foreign Subsidiary’s working capital and other general corporate purposes, provided
that the aggregate principal amount of all such Indebtedness outstanding at any time for all
such Foreign Subsidiaries shall not exceed $50,000,000;




     (ix) Indebtedness of Holdings under Shareholder Subordinated Notes issued pursuant to
Section 10.06(ii), so long as the aggregate outstanding principal amount of Shareholder
Subordinated Notes does not at any time exceed $5,000,000;




     (x) additional unsecured Indebtedness of the Borrower consisting of unsecured
guarantees by the Borrower of (x) obligations (which guaranteed obligations do not
themselves constitute Indebtedness) of one or more Wholly-Owned Subsidiaries of the
Borrower, (y) leases pursuant to which one or more Wholly-Owned Subsidiaries of the Borrower
are the respective lessees and (z) Indebtedness of Wholly-Owned Subsidiaries of the Borrower
of the type permitted pursuant to Section 10.04(b)(xiv);




     (xi) Indebtedness arising from the honoring by a bank or other financial institution of
a check, draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in the ordinary course of
business, so long as such Indebtedness is extinguished within five Business Days of the
incurrence thereof;




     (xii) Indebtedness in respect of (x) Other Hedging Agreements to the extent permitted
by clause (x) of Section 10.05(xii) and (y) Commodity Agreements to the extent permitted by
clause (y) of Section 10.05(xii);




     (xiii) (x) Indebtedness of the Borrower or any of its Subsidiaries evidenced by
completion guarantees and performance and surety bonds (but excluding appeal, performance
and other bonds and/or guaranties issued in respect of obligations arising in connection
with litigation) incurred in the ordinary course of business for purposes of insuring the
performance of the Borrower or such Subsidiary in an aggregate amount not to exceed
$50,000,000 at any time outstanding, (y) Indebtedness of the Borrower or any of its
Subsidiaries evidenced by appeal, performance and other bonds and/or guaranties issued in
respect of obligations arising in connection with litigation for purposes of insuring the
performance of the Borrower or such Subsidiary in an aggregate amount not to exceed
$50,000,000 at any time outstanding and (z) Indebtedness of the Borrower or any of its
Subsidiaries evidenced by appeal bonds and/or guaranties issued in respect of obligations
arising in connection with the European Commission Decision pending appeal by the Borrower
or such Subsidiaries of such decision in an aggregate amount not to exceed €45,000,000 at
any time outstanding;



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     (xiv) Indebtedness of the Borrower or any Subsidiary of the Borrower arising from
agreements of the Borrower or a Subsidiary of the Borrower providing for indemnification,
adjustment of purchase price or other similar obligations, in each case, incurred or assumed
in connection with the disposition of any business, assets or a Subsidiary of the Borrower
permitted under this Agreement (other than guarantees of Indebtedness incurred by any Person
acquiring all or any portion of such business, assets or Subsidiary for the purpose of
financing such acquisition), provided that the maximum assumable liability (as
measured by the reserves reasonably established on such Person’s financial statements) in
respect of all such Indebtedness shall at no time exceed the gross proceeds actually
received by the Borrower and its Subsidiaries in connection with such dispositions;




     (xv) unsecured Indebtedness of the Borrower evidenced by a guaranty of the Indebtedness
or other obligations of any other Person (including Indebtedness of Foreign Subsidiaries
permitted pursuant to Section 10.04((viii) above), so long as the aggregate amount of the
Contingent Obligations of the Borrower pursuant to this Section 10.05(xv) does not exceed
$25,000,000 at any time;




     (xvi) (I) unsecured Indebtedness of the Borrower incurred under the Existing 2011
Senior Notes and the Existing 2011 Senior Notes Indenture and of the Subsidiary Guarantors
(and so long as same remain Subsidiary Guarantors) under senior subordinated guarantees of
the obligations of the Borrower provided under the Existing 2011 Senior Notes Documents to
which they are a party, in an aggregate principal
amount not to exceed $200,000,000 (less the amount of any repayments of principal
thereof after the Effective Date), (II) unsecured Indebtedness of the Borrower incurred
under the Existing 2009 Senior Notes and the Existing 2009 Notes Indenture and of the
Subsidiary Guarantors (and so long as same remain Subsidiary Guarantors) under senior
subordinated guarantees of the obligations of the Borrower provided under the Existing 2009
Senior Notes Documents to which they are a party, in an aggregate principal amount not to
exceed $350,000,000 (less the amount of any repayments of principal thereof after the
Initial Borrowing Date), (III) unsecured Indebtedness of the Borrower incurred under the
Existing 2013 Senior Notes and the Existing 2013 Notes Indenture and of the Subsidiary
Guarantors (and so long as same remain Subsidiary Guarantors) under senior subordinated
guarantees of the obligations of the Borrower provided under the Existing 2013 Senior Notes
Documents to which they are a party, in an aggregate principal amount not to exceed
$155,000,000 (less the amount of any repayments of principal thereof after the Initial
Borrowing Date), (IV) unsecured Indebtedness of the Borrower incurred under Permitted Senior
Notes and the other Permitted Senior Notes Documents and of the Subsidiary Guarantors (and
so long as same remain Subsidiary Guarantors) under subordinated guarantees of the
obligations of the Borrower provided under the Permitted Senior Notes Documents to which
they are a party, so long as such Indebtedness is incurred in accordance with the
requirements of the definition of Permitted Senior Notes, (V) unsecured Indebtedness of the
Borrower incurred under the Existing



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2010 Senior Notes and the Existing 2010 Senior Notes
Indenture and of the Subsidiary Guarantors (and so long as same remain Subsidiary
Guarantors) under subordinated guarantees of the obligations of the Borrower provided under
the Existing 2010 Senior Notes Documents to which they are a party, in an aggregate
principal amount not to exceed $400,000,000 (less the amount of any repayments of principal
thereof after the Initial Borrowing Date), and (VI) on or prior to the Intermediate Holdco
Prepayment Date, Indebtedness of Intermediate Holdco and Corporate Holdco under the
Intermediate Holdco Credit Documents in an aggregate principal amount at any time
outstanding not to exceed $150,000,000 (as such amount may be reduced by any repayments of
principal of the Intermediate Holdco Indebtedness, and (VII) Indebtedness of the Borrower
incurred under the Permitted Refinancing Senior Notes and the other Permitted Refinancing
Senior Notes Documents and of the Subsidiary Guarantors (and so long as same remain
Subsidiary Guarantors) under senior subordinated guarantees of the obligations of the
Borrower provided under the Permitted Refinancing Senior Notes Documents to which it is a
party, so long as such Indebtedness is incurred in accordance with the requirements of the
definition of Permitted Refinancing Senior Notes;




     (xvii) Indebtedness of Foreign Subsidiaries of the Borrower under bank guaranties and
letters of credit issued by financial institutions (on behalf of such Foreign Subsidiaries)
in an aggregate amount not to exceed $50,000,000 at any time;




     (xviii) (x) Indebtedness of Foreign Subsidiaries incurred in connection with grower
loan programs in an aggregate principal amount not to exceed $50,000,000 at any time
outstanding and (y) unsecured Indebtedness of the Borrower evidenced by a guaranty of
Indebtedness permitted pursuant to preceding subclause (x) of this Section 10.04(b)(xviii);




     (xix) Indebtedness of the Borrower or any of its Subsidiaries incurred in connection
with vehicle inventory loans in an aggregate principal amount not to exceed $5,000,000 at
one time outstanding;




     (xx) Indebtedness of the Borrower which may be deemed to exist under its non-qualified
excess savings plan for employees;




     (xxi) Indebtedness of Holdings under the Wellbeing Project Financing Documents in an
aggregate principal amount at any time outstanding not to exceed the Wellbeing Project
Financing Debt Cap Amount at such time, so long as (A) such Indebtedness is incurred in
accordance with the requirements of the definition of “Wellbeing Project Financing” and (B)
no Default or Event of Default is in existence at the time of the respective incurrence of
such Wellbeing Project Financing and immediately after giving effect thereto; and




     (xxii) additional unsecured Indebtedness of the Borrower and its Subsidiaries (other
than the Bermuda Partnership Partners and the Bermuda Partnership) not otherwise permitted
hereunder not exceeding $100,000,000 in aggregate principal amount at any time outstanding,
provided that no such additional Indebtedness shall be incurred at any time a
Default or Event of Default then exists or would result therefrom; and



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   (xxiii) Holdings, Intermediate Holdco, the Borrower, the Bermuda Company and the
Subsidiary Guarantors (as defined in the Term Credit Agreement) may incur and remain liable
with respect to the Indebtedness under the Term Credit Agreement and the other Term Credit
Documents.



          In addition, notwithstanding anything to the contrary contained above in clauses (a) and (b)
of this Section 10.04, (x) in no event shall any Subsidiary of Holdings guarantee any Indebtedness
of Holdings under any Wellbeing Project Financing Document or incur any other obligation under, or
with respect to, any Wellbeing Project Financing Document having any element of recourse to such
Subsidiary or to such Subsidiary’s assets or properties, and (y) Holdings shall not permit any
Unrestricted Wellbeing Joint Venture to incur any Indebtedness or any other obligation having any
element of recourse to any Subsidiary of Holdings or to any assets or properties of any Subsidiary
of Holdings.




          10.05. Advances; Investments; Loans. No Credit Agreement Party will, nor will permit any of its Subsidiaries to, directly or
indirectly, lend money or extend credit or make advances to any Person, or purchase or acquire any
stock, obligations or securities of, or any other Equity Interest in, or make any capital
contribution to, any Person, or purchase or own a futures contract or otherwise become liable for
the purchase or sale of currency or other commodities at a future date in the nature of a futures
contract, or hold any cash or Cash Equivalents (each of the foregoing an “Investment” and,
collectively, “Investments”), except:





     (i) (w) the Borrower and its Subsidiaries may acquire and hold cash and Cash
Equivalents; provided, however, that at any time a Loan is outstanding, the
aggregate amount of Unrestricted Cash held by any the Borrower and its Domestic Subsidiaries
shall not exceed $25,000,000 for any period of five consecutive Business Days, (x)
Intermediate Holdco may hold cash and Cash Equivalents (I) in a de minimis
amount representing proceeds from the initial capital contribution made in connection with
its formation and (II) representing the proceeds of any Indebtedness permitted to be
incurred, or Dividends permitted to be received, by it pursuant to the terms of this
Agreement, so long as (in the case of preceding subclause (II)) Intermediate Holdco utilizes
such cash and/or Cash Equivalents within the time periods required, and for the purposes
permitted, by this Agreement, (y) Corporate Holdco may hold cash and Cash Equivalents in a
de minimis amount representing proceeds from the initial capital
contribution made in connection with its formation and (z) Holdings may hold cash and Cash
Equivalents (I) in a de minimis amount representing proceeds from the
initial capital contribution made in connection with its formation and (II) representing the
proceeds of any Indebtedness permitted to be incurred, or Dividends permitted to be
received, by it pursuant to the terms of this Agreement (including cash and Cash Equivalents
held by Holdings representing proceeds from the Wellbeing Project Financing), so long as (in
the case of preceding subclause (II)) Holdings utilizes such cash or Cash Equivalents within
the time periods required, and for the purposes permitted, by this Agreement;




     (ii) the Borrower and its Subsidiaries may acquire and hold receivables owing to it, if
created or acquired in the ordinary course of business and payable or



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dischargeable in
accordance with customary trade terms (including the dating of receivables) of the Borrower
or such Subsidiary;




     (iii) the Borrower and its Subsidiaries may acquire and own investments (including debt
obligations) received in connection with the bankruptcy or reorganization of suppliers,
trade creditors, licensees, licensors and customers and in good faith settlement of
delinquent obligations of, and other disputes with, suppliers, trade creditors, licensees,
licensors and customers arising in the ordinary course of business;




     (iv) Interest Rate Protection Agreements entered into in compliance with Section
10.04(iii) shall be permitted;




     (v) (x) Investments constituting Intercompany Scheduled Existing Indebtedness in
existence on the Initial Borrowing Date (and any refinancings thereof permitted pursuant to
Section 10.04(b)(vii) and consistent with the definition of Permitted Refinancing
Indebtedness) and (y) such other Investments in existence on the Initial Borrowing Date and
listed on Schedule IX (without giving effect to any additions thereto or replacements
thereof); provided that any additional Investments made with respect to the
Investments described in preceding subclause (y) of this Section 10.05(v) shall be permitted
only if independently justified under the other provisions of this Section 10.05;




     (vi) (w) Qualified Obligors (other than Holdings, Intermediate Holdco and Corporate
Holdco) may make intercompany loans to each other, (x) Qualified Obligors may make
intercompany loans to any Foreign Subsidiary of the Borrower, (y) any Wholly-Owned Foreign
Subsidiary of the Borrower may make intercompany loans to any Qualified Obligor and (z)
Foreign Subsidiaries may make intercompany loans to each other, provided that (I)
unless the respective obligor under such intercompany loan reasonably determines that the
execution, delivery and performance of an Intercompany Note is prohibited by, or that such
Intercompany Note would not be enforceable against such obligor under, applicable local law,
any such intercompany loan made pursuant to this Section 10.05(vi) (other than any such loan
made to a Non-Wholly Owned Subsidiary) shall be evidenced by an Intercompany Note, (II) at
no time shall the aggregate outstanding principal amount of all such intercompany loans made
pursuant to subclause (x) of this Section 10.05(vi) above, when added to the aggregate
amount of capital contributions made pursuant to (and in reliance on) Section 10.05(viii)(y)
(for this purpose, taking the Fair Market Value of any Property (other than cash) so
contributed at the time of such contribution), exceed $350,000,000 (determined without
regard to write-downs or write-offs thereof), (III) no intercompany loans may be made
pursuant to subclause (x) of this Section 10.05(vi) at any time any Specified Default or any
Event of Default is in existence (or would be in existence after giving effect thereto),
(IV) subject to the exception specified in the proviso to Section 10.01(g), each
intercompany loan made pursuant to this Section 10.05(vi) shall be subject to subordination
as, and to the extent required by, the Intercompany Subordination Agreement and (V) any
intercompany loans made pursuant to this Section 10.05(vi) shall cease to be permitted
hereunder if the obligor or obligee thereunder ceases to constitute a Qualified Obligor or a
Foreign Subsidiary of the Borrower as contemplated above;



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     (vii) (x) loans by the Borrower and its Subsidiaries to officers, employees and
directors of Holdings and its Subsidiaries for bona fide business purposes,
in each case incurred in the ordinary course of business, in an aggregate outstanding
principal amount not to exceed $5,000,000 at any time outstanding (determined without regard
to any write-downs or write-offs of such loans and advances) shall be permitted and (y)
advances of reimbursable expenses by the Borrower and its respective Subsidiaries to
officers, employees and directors of Holdings and its Subsidiaries for bona
fide purposes, in each case incurred in the ordinary course of business;




     (viii) (w) any Wholly-Owned Foreign Subsidiary of the Borrower may make capital
contributions to any Qualified Obligor, (x) any Qualified Obligor may make capital
contributions to any of its direct Wholly-Owned Subsidiaries that is a Qualified Obligor,
(y) any Non-Guarantor Subsidiary may make capital contributions to any of its direct
Wholly-Owned Subsidiaries that is a Non-Guarantor Subsidiary, and (z) any Qualified Obligor
may make capital contributions to any of their respective direct Foreign Subsidiaries;
provided that (I) at no time shall the aggregate amount of the capital contributions
made pursuant to subclause (z) of this Section 10.05(viii) (for this purpose, (1) taking the
Fair Market Value of any Property (other than cash) so contributed at the time of such
contribution and (2) excluding capital contributions made to a Foreign Subsidiary which are
promptly contributed, in turn, to a Foreign Subsidiary
in reliance on subclause (z) above), when added to the aggregate outstanding principal
amount of all intercompany loans made pursuant to subclause (x) of Section 10.05(vi) above
(determined without regard to write-downs or write-offs thereof), exceed $350,000,000, and
(II) no contributions may be made pursuant to subclause (y) or (z) of this Section
10.05(viii) at any time any Specified Default or any Event of Default is in existence (or
would be in existence after giving effect thereto);




     (ix) the U.S. Dole Group may make Permitted Acquisitions in accordance with the
relevant requirements of Section 9.14 and the component definitions therein;




     (x) the Borrower and its Subsidiaries may own the capital stock of, or other Equity
Interests in, their respective Subsidiaries created or acquired in accordance with the terms
of this Agreement;




     (xi) the Borrower and its Subsidiaries may acquire and hold non-cash consideration
issued by the purchaser of assets in connection with a sale of such assets to the extent
permitted by Sections 10.02(v), (xiv) and (xviii);




     (xii) the Borrower and its Subsidiaries may enter into (x) Other Hedging Agreements in
the ordinary course of business providing protection against fluctuations in currency values
in connection with the operations of the Borrower or any of its Subsidiaries and (y)
Commodity Agreements in the ordinary course of business providing protection against
fluctuations in prices of commodities used in the operations of the Borrower and its
Subsidiaries, in each case, so long as management of the Borrower or such Subsidiary, as the
case may be, has determined in good faith that the entering into of



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such Other Hedging
Agreements or Commodity Agreements, as the case may be, are bona fide
hedging activities and are not for speculative purposes;




     (xiii) Holdings may acquire and hold obligations of one or more officers, directors or
other employees of Holdings or any of its Subsidiaries in connection with such officers’,
directors’ or employees’ acquisition of shares of capital stock of Holdings, so long as no
cash is paid by Holdings or any of its Subsidiaries to such officers, directors or employees
in connection with the acquisition of any such obligations;




     (xiv) loans or advances by any Subsidiary of Holdings in connection with grower loan
programs; provided that (I) at no time shall the aggregate outstanding principal
amount of all such loans and advances made pursuant to this Section 10.05(xv) exceed
$75,000,000 (determined without regard to write-downs or write-offs thereof), (II) no loans
or advances may be made pursuant to this Section 10.05(xiv) at any time any Specified
Default or any Event of Default is in existence (or would be in existence after giving
effect thereto), and (III) in the event a loan or advance made by a Credit Party pursuant to
this Section 10.05(xv) is evidenced by a promissory note, such promissory note shall be
pledged to the Collateral Agent pursuant to the relevant Foreign Security Document (except
to the extent local law or the relevant grower loan documents prohibit such pledge or such
note is required to be pledged to secure Indebtedness incurred pursuant to clause (x) of
clause (x) of Section 10.04(b)(xviii);




     (xv) so long as no Default or Event of Default then exists or would result therefrom,
the Borrower and its Subsidiaries may acquire Equity Interests in Persons (who, after giving
effect to such acquisition, become Non-Wholly Owned Subsidiaries of the Borrower or such
Subsidiary); provided that the aggregate amount of the Investments made pursuant to
this Section 10.05(xv) after the Effective Date shall not exceed $50,000,000 (without regard
to any write-downs or write-offs thereof);




     (xvi) any Non-Wholly Owned Subsidiary of the Borrower may make loans to its
shareholders generally so long as (x) the Borrower or its respective Subsidiary which owns
the Equity Interest in the Subsidiary making such loans receives at least its proportionate
share of such loans (based upon its relative holding of the Equity Interests in the
Subsidiary making such loans), (y) unless the entering into of the Intercompany
Subordination Agreement requires the consent of the minority shareholder of such Non-Wholly
Owned Subsidiary (and such consent is not obtained), such Non-Wholly-Owned Subsidiary (as
obligee of such loan) and the Borrower or such other Subsidiary (as obligor of such loan)
shall be subject to the provisions of the Intercompany Subordination Agreement and (z) the
aggregate outstanding principal amount of all loans pursuant to this clause (xvi) which are
not subject to the subordination provisions of the Intercompany Subordination Agreement
shall not exceed $50,000,000 at any time;




     (xvii) Investments constituting guaranties permitted by Section 10.04;




     (xviii) the Bermuda Partnership Partners may make additional Investments in the Bermuda
Partnership not otherwise permitted by this Section, so long as (w) the Bermuda Partnership
promptly (and in any event within one Business Day of receipt thereof) uses



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100% of the cash
proceeds of such Investment to make a prepayment on the intercompany loan owing by it to the
Bermuda Company and incurred pursuant to the Intercompany Distribution Transactions, and (x)
any Investment in the form of an intercompany loan or advance pursuant to this clause
(xviii) shall be subject to subordination as, and to the extent required by, the
Intercompany Subordination Agreement;




     (xix) so long as no Default or Event of Default then exists or would result therefrom,
the Borrower and its respective Subsidiaries may make Investments not otherwise permitted by
Section (i) through (xviii) and succeeding Section (xxi); provided that (x) the
aggregate amount of Investments made pursuant to this Section (xix) after the Initial
Borrowing Date shall not exceed $100,000,000 (determined without regard to any write-downs
or write-offs thereof);




     (xx) so long as no Default or Event of Default then exists or would result therefrom,
Holdings may from time to time (I) make cash common equity contributions, and/or
intercompany loans to, Westlake Wellbeing Company, and (II) make cash common equity
contributions, and/or intercompany loans, to Wellbeing IP Holdco and/or Wellbeing Edco;
provided that (x) Holdings shall at all times own or hold at least 85% of the Equity
Interests of Westlake Wellbeing Company (on a fully diluted basis) and at least 50% of the
Equity Interests of each of Wellbeing IP Holdco and Wellbeing Edco
(on a fully diluted basis), (y) all of the Equity Interests of each of the Unrestricted
Wellbeing Joint Ventures held by Holdings shall have been delivered and pledged by Holdings
to the Collateral Agent pursuant to the Pledge Agreement, and (z) each Investment made by
Holdings pursuant to this clause (xx) in the form of an intercompany loan shall be evidenced
by an Intercompany Note pledged to the Collateral Agent pursuant to the Pledge Agreement;




     (xxi) the Borrower may make intercompany loans to Intermediate Holdco, and Intermediate
Holdco may make intercompany loans to Holdings, at the times and for the purposes described
below, so long as (i) no Default, Event of Default or Compliance Period then exists or would
result therefrom, (ii) each such intercompany loan is permitted pursuant to the terms of the
Term Credit Documents, the Existing Senior Notes Documents and the Intermediate Holdco
Credit Documents and, on and after the execution and delivery thereof, the Permitted Senior
Notes Documents and the Permitted Refinancing Senior Notes Documents, (iii) no such
intercompany loan by the Borrower to Intermediate Holdco shall be made, unless the proceeds
thereof are promptly (and in any event within 5 Business Days of the making of such
intercompany loan or, in the case of the following clause (C) by the Intermediate Holdco
Prepayment Date) (A) on-loaned by Intermediate Holdco to Holdings for use within the time
periods required by, and for the purposes described in, immediately succeeding clause (iv),
(B) Dividended by Intermediate Holdco to Holdings for use within the time periods required
by, and for the purposes described in, subclause (v) of Section 10.06(ix) or (C) utilized by
Intermediate Holdco to pay amounts owing pursuant to the Intermediate Holdco Indebtedness as
contemplated by Section 9.20, (iv) the proceeds of each such intercompany loan received by
Holdings shall be utilized by Holdings promptly (and, in any event, within 30 days of



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the receipt of such proceeds) to make an Investment in one or more Unrestricted Wellbeing Joint
Ventures pursuant to Section 10.05(xx) or the purposes of financing the construction and
start-up of the Wellbeing Project and/or the operations of the Unrestricted Wellbeing Joint
Ventures and (v) each such intercompany loan shall be evidenced by an Intercompany Note
pledged by the Borrower or Intermediate Holdco, as the case may be, to the Collateral Agent
pursuant to the Pledge Agreement; and




     (xxii) (x) Intermediate Holdco may make intercompany loans to the Borrower with the
proceeds from any Investment made in it by Holdings with the proceeds of (I) any Equity
Infusion or (II) Wellbeing Project Financing, so long as each such intercompany loan shall
be evidenced by an Intercompany Note pledged by Intermediate Holdco to the Collateral Agent
pursuant to the Pledge Agreement and (y) Holdings may make intercompany loans to
Intermediate Holdco with the proceeds from (I) any Equity Infusion or (II) the incurrence of
any Wellbeing Project Financing, so long as each such intercompany loan shall be evidenced
by an Intercompany Note pledged by Holdings to the Collateral Agent pursuant to the Pledge
Agreement.



          10.06. Restricted Payments; etc. No Credit Agreement Party will, nor will permit any of its Subsidiaries to, declare or pay any
dividends (other than dividends payable solely in non-redeemable common stock or comparable common
equity interests of Holdings or any such Subsidiary, as the case may be) or return any equity
capital to, its stockholders, partners, members or other equity holders or authorize or make any
other distribution, payment or delivery of property or cash to its stockholders, partners, members
or other equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or
indirectly, for a consideration, any shares of any class of its capital stock or other Equity
Interests, now or hereafter outstanding (or any warrants for or options or stock appreciation
rights in respect of any of such shares or other Equity Interests), or set aside any funds for any
of the foregoing purposes, and no Credit Agreement Party will permit any of its Subsidiaries to
purchase or otherwise acquire for a consideration any shares of any class of the capital stock or
other Equity Interests of any direct or indirect parent of such Subsidiary now or hereafter
outstanding (or any options or warrants or stock appreciation rights issued by such Person with
respect to its capital stock or other Equity Interests) (all of the foregoing “Dividends”)
or make any payments in respect of any outstanding Shareholder Subordinated Notes or Intercompany
Debt, except that:




     (i) (x) any Subsidiary of the Borrower may pay Dividends to the Borrower or any
Wholly-Owned Subsidiary of the Borrower and (y) any non-Wholly-Owned Subsidiary of the
Borrower may pay cash Dividends to its shareholders generally so long as the Borrower or its
Subsidiary which owns the Equity Interest in the Subsidiary paying such Dividends receives
at least its proportionate share thereof (based upon its relative holding of the Equity
Interests in the Subsidiary paying such Dividends and taking into account the relative
preferences, if any, of the various classes of Equity Interests of such Subsidiary);
provided that any Dividend made pursuant to preceding clause (x) to any Wholly-Owned
Subsidiary that is not a Credit Party may only be made if (A) (I) no Specified Default and
no Event of Default then exists or would result therefrom and (II) such Wholly-Owned
Subsidiary promptly distributes and/or transfer any Property received pursuant to such
Dividend (directly or indirectly through other Wholly-Owned



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Subsidiaries) to a Credit Party
or (B) the Subsidiary making such Dividend is not a Credit Party; provided
however, that, subject to Section 10.01(d)(v), any such Dividend may be made to the
Bermuda Partnership notwithstanding the existence of an Event of Default (other than an
Event of Default under Section 11.01 or 11.05) so long as (a) the Bermuda Partnership
complies with clause (II) of the preceding proviso and (b) the Bermuda Partnership Partners
are (after giving effect to the receipt of any Dividend from Bermuda Partnership) in
compliance with the requirements of Section 10.01(d);




     (ii) Holdings may redeem or purchase shares of Holdings Common Stock or options to
purchase Holdings Common Stock, as the case may be, held by former officers or employees of
Holdings or any of its Subsidiaries following the death, disability, retirement or
termination of employment of such officers or employees, provided that (w) the only
consideration paid by Holdings in respect of such redemptions and/or purchases shall be cash
and Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount paid by Holdings
in cash in respect of all such redemptions and/or purchases plus (B) the aggregate
amount of all principal and interest payments made on Shareholder Subordinated Notes, shall
not exceed $2,000,000 in any Fiscal Year of Holdings, and (z)
at the time of any redemption or purchase pursuant to this Section 10.06(ii), no
Specified Default or Event of Default shall then exist or result therefrom;




     (iii) (A) the Borrower may pay cash Dividends to Intermediate Holdco, so long as (x)
no Specified Default or Event of Default then exists or would result therefrom and (y) the
cash proceeds thereof are promptly used by Intermediate Holdco to pay the cash Dividend
described in succeeding clause (B) and (B) Intermediate Holdco may pay cash Dividends to
Holdings, so long as (x) no Specified Default or Event of Default then exists or would
result therefrom and (y) the cash proceeds thereof are promptly used by Holdings for the
purposes described in Section 10.06(ii);




     (iv) (A) the Borrower may pay cash Dividends to Intermediate Holdco, so long as the
proceeds thereof are promptly used by Intermediate Holdco to pay its operating expenses in
the ordinary course of business (including, without limitation, professional fees and
expenses) and other similar corporate overhead costs and expenses, (B) the Borrower may pay
cash Dividends to Intermediate Holdco, so long as Intermediate Holdco promptly contributes
such proceeds to Corporate Holdco and the proceeds of such contribution are promptly used by
Corporate Holdco to pay its operating expenses in the ordinary course of business
(including, without limitation, professional fees and expenses) and other similar corporate
overhead costs and expenses, and (C) the Borrower may pay cash Dividends to Intermediate
Holdco, which, in turn, may pay cash Dividends to Holdings, so long as the proceeds thereof
are promptly used by Holdings to pay operating expenses in the ordinary course of its
business (including, without limitation, professional fees and expenses) and other similar
corporate overhead costs and expenses;




     (v) the Borrower may pay cash Dividends to Intermediate Holdco, and Intermediate Holdco
may in turn pay cash Dividends to Holdings, in the amounts and at the times of any payment
by Holdings in respect of its taxes (or taxes of its consolidated



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group), provided
that (x) the amount of cash Dividends paid pursuant to this clause (v) to enable Holdings to
pay taxes at any time shall not exceed the amount of such taxes owing by Holdings at such
time and (y) any refunds received by Holdings attributable to the Borrower or any of its
Subsidiaries shall be promptly returned by Holdings to Intermediate Holdco, and, in turn, by
Intermediate Holdco to the Borrower, provided further that (A) in no event
shall the amount of Dividends paid by the Borrower and its Subsidiaries pursuant to this
Section 10.06(v) in respect of any taxable year for which the Borrower and any of its
Subsidiaries are included in a consolidated federal income tax return, or a consolidated,
combined or unitary state or local tax return with any Person other than the Borrower and
its Subsidiaries (such other Person or Persons included in such returns, together with the
Borrower and its Subsidiaries, the “Affiliated Group”) exceed, in the aggregate, the
lesser of (I) the amount of such federal income tax or state or local tax, as the case may
be (the “Relevant Separate Tax Liability”), that the Borrower and its Subsidiaries
would have been obligated to pay if the Borrower and its Subsidiaries had filed a separate
consolidated federal income tax return or a separate consolidated, combined or unitary state
or local tax return, as the case may be, for such year and all prior taxable years (with the
Borrower as the common parent of such
affiliated group) and (II) the product of (a) the federal income or state or local tax
liability, as the case may be, of the Affiliated Group for such year and (b) a fraction, (x)
the numerator of which is an amount equal to the Relevant Separate Tax Liability of the
Borrower and its Subsidiaries for such year and (y) the denominator of which is the
aggregate of the total separate federal income, state or local tax liability, as the case
may be, that each member of the Affiliated Group (treating the Borrower and its Subsidiaries
as a single member and all other members of the Affiliated Group as one separate member)
would have incurred for such year if such members had filed separate federal income tax
returns or separate consolidated, combined or unitary state or local tax returns, as the
case may be, for such year and all prior taxable years and (B) each Unrestricted Wellbeing
Joint Venture shall be required to contribute to Holdings (and shall concurrently or prior
to any payment of any Dividend by the Borrower pursuant to this Section 10.06(v) have
contributed to Holdings) its allocable share (as reasonably determined by Holdings in good
faith) of all tax liabilities of Holdings and its consolidated Subsidiaries;




     (vi) Holdings and its Subsidiaries may make payments with respect to Intercompany Debt,
so long as the respective payment is permitted to be made in accordance with the terms of
the Intercompany Subordination Agreement; provided that, in no event shall the
Borrower be permitted to repay any Intercompany Debt incurred by it from Intermediate Holdco
pursuant to Section 10.05(xxi), unless the conditions set forth in subclauses (i), (ii),
(iii) and (iv) of Section 10.06(ix) shall have been satisfied at such time (for such
purposes, treating each reference to the making of a Dividend in said subclauses as if it
were a reference to the repayment of such Intercompany Debt);




     (vii) Holdings may make payments of interest and principal on the Shareholder
Subordinated Notes in accordance with the terms thereof, so long as the sum of (A) the
aggregate amount paid by Holdings in cash in respect of all redemptions and/or purchases of
Holdings Common Stock pursuant to Section 10.06(ii) plus (B) the aggregate amount of



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all principal and interest payments made on Shareholder Subordinated Notes, does not exceed
$2,000,000 in any Fiscal Year of Holdings;




     (viii) Holdings may pay regularly scheduled Dividends on Qualified Preferred Stock
issued by it pursuant to the terms thereof solely through the issuance of additional shares
of such Qualified Preferred Stock rather than in cash;




     (ix) the Borrower may pay cash Dividends to Intermediate Holdco, and Intermediate
Holdco may pay cash Dividends to Holdings, at the times and for the purposes described
below, so long as (i) no Default or Event of Default then exists or would result therefrom,
(ii) the aggregate amount of such cash Dividends shall not exceed the aggregate amount of
cash common equity contributions received by the Borrower from Intermediate Holdco
(including not more than $28,500,000 received prior to the Effective Date), to and including
the date of such cash Dividend, pursuant to clause (v) of Section 10.05(viii) or Section
10.05(xix), in each case only to the extent such cash common equity contributions were
funded by Intermediate Holdco with proceeds from the incurrence of any Wellbeing Project
Financing, (iii) each such Dividend is permitted
pursuant to the terms of the Existing Senior Notes Documents and, on and after the
execution and delivery thereof, the Permitted Senior Notes Documents and the Permitted
Refinancing Senior Notes Documents, (iv) no such Dividend by the Borrower to Intermediate
Holdco shall be paid, unless the proceeds thereof are promptly (and in any event within 5
Business Days of the payment of such Dividend) (A) Dividended by Intermediate Holdco to
Holdings for use within the time periods required by, and for the purposes described in,
immediately succeeding clause (v) and (B) on-loaned by Intermediate Holdco to Holdings for
use within the time periods required by, and for the purposes described in, Sub-clause (v)
of preceding Section 10.05(xxi) and (v) the proceeds of each such Dividend received by
Holdings shall be utilized by Holdings promptly (and, in any event, within 30 days of the
payment of such Dividend) to make an Investment in one or more Unrestricted Wellbeing Joint
Ventures pursuant to Section 10.05(xx) for the purposes of financing the Wellbeing Project
and/or the operations of the Unrestricted Wellbeing Joint Ventures;




     (x) the Refinancing may be consummated in accordance with the requirements of this
Agreement;




     (xi) so long as no Default and no Event of Default then exists or would result
therefrom, any Existing Senior Notes, any Permitted Senior Notes and any Permitted
Refinancing Senior Notes may be refinanced with any Permitted Refinancing Senior Notes in
accordance with the requirements of this Agreement;




     (xii) so long as no Specified Default and no Event of Default then exists or would
result therefrom, any Scheduled Existing Indebtedness, any Permitted Acquired Debt and any
Permitted Refinancing Indebtedness incurred to refinance same may be refinanced with
Permitted Refinancing Indebtedness in accordance with the requirements of this Agreement;
and, so long as no Event of Default has occurred and is continuing or




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would result therefrom, the Existing Senior Notes and any Permitted Refinancing Senior Notes
may be exchanged for Equity Interests of Holdings permitted by Section 10.10(a);




     (xiii) in addition to the actions permitted above, the Borrower and its Subsidiaries
may make Investments (and, without duplication, may repurchase or redeem (so long as any
repurchased Indebtedness is promptly cancelled) any Indebtedness otherwise described in
Section 10.09(a)(i)), so long as (I) no Default or Event of Default then exists or would
result therefrom, (II) the aggregate amount of cash expended pursuant to this Section 10.06
(xiii) to effect such Investments after the Effective Date does not exceed the sum of (x)
$50,000,000 and (y) the aggregate amount of Retained Excess Cash Flow Amount at the time
such Investment is made and (III) to the extent any such Investment (or any part thereof) is
made in reliance on preceding clause (II)(y), calculations are made by the Borrower of
compliance with Section 10.04(a) (regardless of whether any Indebtedness is then being
incurred pursuant to said Section 10.04(a)) for the Calculation Period most recently ended
prior to the date of the respective repurchase or redemption (determined on a Pro
Forma Basis after giving effect to such Investment and the incurrence of any
Indebtedness to finance same), as set forth in a certificate by an Authorized Officer of the
Borrower furnished to the Administrative Agent on the date of such Investment, and such
calculations shall show that, after giving effect to the respective Investment (and any
contemporaneous Investments) and any Indebtedness being incurred in connection therewith,
the Borrower would be permitted to incur at least $1 of additional Indebtedness pursuant to
Section 10.04(a) at such time; provided that, to the extent that such Investments
constitute redemptions and/or repurchases of Existing Senior Notes, Permitted Senior Notes
and/or Permitted Refinancing Senior Notes from time to time (whether redeemed in accordance
with the terms of the indenture therefor and/or repurchased on the open market), all such
Existing Senior Notes, Permitted Senior Notes or Permitted Refinancing Senior Notes, as the
case may be, so repurchased or redeemed are promptly cancelled by the Borrower; and




   (xiv) in addition to the actions permitted above, the Borrower and its
Subsidiaries may make Investments (and, without duplication, may repurchase or redeem) in
any Existing 2009 Senior Notes or Existing 2010 Senior Notes so long as (I) no Default or
Event of Default then exists or would result therefrom, (II) the aggregate amount of cash
expended pursuant to this Section 10.06(xiv) to effect such Investments after the Effective
Date does not exceed $50,000,000, (III) after giving effect to such Investments,
redemptions and repurchases, the Borrower (A) would be in compliance with Section 9.13 of
the Term Credit Agreement (as in effect on the effective date of Amendment 1) as of the most
recently completed test date and (B) has not less than $70,000,000 of Borrowing Availability
and (IV) all such Existing 2009 Senior Notes or Existing 2010 Senior Notes so repurchased or
redeemed are promptly cancelled by the Borrower.



          10.07. Transactions with Affiliates. No Credit Agreement Party will, nor will permit any of its Subsidiaries to, enter into any
transaction or series of transactions with any Affiliate of Holdings or any of its Subsidiaries
other than in the ordinary course of business and on terms and conditions
substantially as favorable to such Credit Agreement Party or such



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Subsidiary as would be
reasonably expected to be obtainable by such Credit Agreement Party or such Subsidiary at the time
in a comparable arm’s-length transaction with a Person other than an Affiliate; provided
that the following shall in any event be permitted: (i) the Transaction; (ii) intercompany
transactions among the Borrower and its Subsidiaries to the extent expressly permitted by Sections
10.02, 10.04, 10.05 and 10.06 and intercompany transactions among Holdings and its Subsidiaries to
the extent expressly provided in clauses (xx), (xxi) and (xxii) of Section 10.05; (iii) the payment
of consulting or other fees to the Borrower by any of its Subsidiaries in the ordinary course of
business; (iv) customary fees to non-officer directors of the Borrower and its respective
Subsidiaries; (v) the Borrower and its Subsidiaries may enter into the employment arrangements with
respect to the procurement of services with their respective officers and employees in the ordinary
course of business; (vi) Dividends may be paid by Holdings to the extent permitted by Section
10.06; (vii) the payment of customary fees (excluding management fees) to the Agents and their
Affiliates for services rendered (including, without limitation, any underwriting discounts and
commissions); (viii) transactions between the Borrower and/or any of its Subsidiaries and their
respective Affiliates listed on Schedule XVI hereto; and (ix) the California Disposition and any
loan of all or a portion of the Net Sale Proceeds therefrom to an Affiliate of the Borrower, so
long as (and only so long as) such transactions would not (in the absence of this clause (ix) and,
for such purpose, assuming same were in the “ordinary course of business”) give rise to a violation
of this Section 10.07. In no event shall any management, consulting or similar fee be paid or
payable by Holdings or any of its Subsidiaries to any Affiliate (other than the Borrower or any
other Credit Party), except as specifically provided in this Section 10.07.




          10.08. Fixed Charge Coverage Ratio. During any Compliance Period, the Borrower shall not permit (i) the Fixed Charge Coverage
Ratio to be less than 1.00:1.00 for the four Fiscal Quarters most recently ended for which
financial statements are available immediately prior to the beginning of such Compliance Period and
(ii) the Fixed Charge Coverage Ratio for each four-Fiscal Quarter period ending during such
Compliance Period to be less than 1.00:1.00. Within five Business Days of (x) the first day of a
Compliance Period and (y) the last Business Day of any Fiscal Quarter during which a Compliance
Period is occurring, Holdings shall provide to Administrative Agent a Compliance Certificate
calculating the Fixed Charge Coverage Ratio based on the most recent quarterly financial statements
delivered pursuant to Section 9.01(b).



          10.09. Limitation on Voluntary Payments and Modifications of Indebtedness; Modifications
of Certificate of Incorporation, By-Laws and Certain Other Agreements; Issuances of Capital Stock;
etc. (a) No Credit Agreement Party will, and no Credit Agreement Party will permit any of its
Subsidiaries to:




     (i) make (or give any notice in respect of) any voluntary or optional payment or
prepayment on or redemption, repurchase or acquisition for value of (including, without
limitation, by way of depositing with the trustee with respect thereto or any other Person
money or securities before due for the purpose of paying when due), or any prepayment, repurchase, redemption or acquisition for value as a result of any asset
sale, change of control or similar event of any Existing Indebtedness or, after the
incurrence or issuance thereof, any Permitted Refinancing Indebtedness, any Shareholder
Subordinated



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Note, any Qualified Preferred Stock, any Permitted Acquired Debt, any Permitted
Refinancing Senior Note, except to the extent expressly permitted under Section 10.06(xi),
(xii), (xiii) and or (xiv), in the case of Permitted Acquired Debt, required by Section
9.11(h);




     (ii) amend or modify, or permit the amendment or modification of, any provision of any
Existing Senior Notes Document or any Intermediate Holdco Credit Document or, on and after
the execution and delivery thereof, any Wellbeing Project Financing Document, any Permitted
Senior Notes Document and any Permitted Refinancing Senior Notes Document, in any such case
other than any technical or clarifying amendments, modifications or changes to any such
Documents that are not in any way adverse to the interests of the Lenders and do not relate
to the subordination provisions contained therein or, in the case of any Wellbeing Project
Financing Document, amendments, modifications or changes which do not result in the
Wellbeing Project Financing ceasing to meet the requirements of “Wellbeing Project
Financing” as set forth in the definition thereof; or




     (iii) amend, modify or change any Permitted Acquired Debt, any Permitted Refinancing
Indebtedness, any Tax Allocation Agreement, any Management Agreement, any Qualified
Preferred Stock, its certificate of incorporation (including, without limitation, by the
filing or modification of any certificate of designation), by-laws, certificate of
partnership, partnership agreement, certificate of limited liability company, limited
liability company agreement (or equivalent organizational documents) or any agreement
entered into by it, with respect to its capital stock or other Equity Interests (including
any Shareholders’ Agreement), or enter into any new Tax Allocation Agreement, Management
Agreement or agreement with respect to its capital stock or other Equity Interests, other
than (A) any change to Permitted Acquired Debt or Permitted Refinancing Indebtedness as a
result of the refinancing thereof as permitted by Section 10.09(a), (B) any amendments or
modifications to Permitted Refinancing Debt or Qualified Preferred Stock consistent with the
definitions thereof provided herein and (C) any amendments, modifications or changes
pursuant to this Section 10.09(a) and any such new agreements pursuant to this Section
10.09(a), (x) which do not adversely affect the interests of the Lenders in any material
respect, (y), in the case of any Management Agreement, which does not involve the payment by
Holdings or any of its Subsidiaries of any amount which could give rise to a violation of
this Agreement and (z) any amendment to such Person’s respective certificates of
incorporation or other organizational documents to authorize the issuance of capital stock
or other Equity Interests otherwise permitted to be issued pursuant to the terms of this
Agreement.



          (b) Neither Holdings nor any of its Subsidiaries shall designate any Indebtedness (other than
the Obligations) as “Designated Guarantor Senior Debt” or “Designated Senior Debt” for purposes of
the Existing Senior Notes Documents or, on and after the execution and delivery thereof, the
Permitted Senior Notes Documents and the Permitted Refinancing Senior Notes Documents.



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          10.10. Limitation on Issuance of Equity Interests. (a) Holdings will not issue (i) any Preferred Equity (or any options, warrants or rights
to purchase Preferred Equity) (other than Qualified Preferred Stock issued pursuant to clause (c)
below) or (ii) any redeemable common stock or equivalent common Equity Interests.



          (b) Neither Intermediate Holdco nor the Borrower shall, nor shall permit any of its
Subsidiaries to, issue any capital stock or other Equity Interests (including by way of sales of
treasury stock), except (i) for transfers and replacements of then outstanding shares of capital
stock or other Equity Interests, (ii) for stock splits, stock dividends and additional issuances
which do not decrease the aggregate percentage ownership of Holdings and its Subsidiaries in any
class of the capital stock or other Equity Interests of such Subsidiaries, (iii) in the case of
Foreign Subsidiaries of the Borrower, to qualify directors to the extent required by applicable
law, (iv) Subsidiaries formed after the Initial Borrowing Date pursuant to Section 10.13 may issue
capital stock or other Equity Interests in accordance with the requirements of Section 10.13 and
(v) issuances of Equity Interests (including Preferred Equity) by any Wholly-Owned Subsidiary of
the Borrower to one or more other Wholly-Owned Subsidiaries of the Borrower. All capital stock or
other Equity Interests issued in accordance with this Section 10.10(b) shall, to the extent
required by the relevant Security Document, be delivered to the Collateral Agent for pledge
pursuant to such Security Document.



          (c) Holdings may from time to time (i) issue Qualified Preferred Stock, so long as (x) no
Default or Event of Default shall exist at the time of any such issuance or immediately after
giving effect thereto, and (y) with respect to each issuance of Qualified Preferred Stock, the
gross cash proceeds therefrom (or in the case of Qualified Preferred Stock directly issued as
consideration for a Permitted Acquisition, the Fair Market Value thereof of the assets received
therefor) shall be at least equal to 100% of the liquidation preference thereof at the time of
issuance and (ii) issue additional shares of Qualified Preferred Stock to pay in kind regularly
scheduled Dividends on Qualified Preferred Stock theretofore issued in compliance with this Section
10.10(c).



          10.11. Limitation on Certain Restrictions on Subsidiaries. No Credit Agreement Party will, nor will permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective, any encumbrance or
restriction on the ability of any such Subsidiary to (x) pay dividends or make any other
distributions on its capital stock or any other Equity Interests or participation in its profits
owned by Holdings or any Subsidiary of Holdings, or pay any Indebtedness owed to Holdings or a
Subsidiary of Holdings, (y) make loans or advances to Holdings or any Subsidiary of Holdings or (z)
transfer any of its properties or assets to Holdings or any of its Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (i) applicable law, (ii) this Agreement
and the other Credit Documents, (iii) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest of the Borrower or a Subsidiary of the Borrower, (iv)
customary provisions restricting assignment of any licensing agreement (in which the Borrower or
any of its Subsidiaries is the licensee) or any other contract entered into by the Borrower or any
Subsidiary of the Borrower in the ordinary course of business, (v) any agreement or instrument
governing Permitted Acquired Debt, which
encumbrance or restriction is not applicable to any Person or the properties or assets of any
Person, other than the Person or the properties or assets of the



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Person acquired pursuant to the
respective Permitted Acquisition and so long as the respective encumbrances or restrictions were
not created (or made more restrictive) in connection with or in anticipation of the respective
Permitted Acquisition, (vi) restrictions applicable to any Non-Wholly Owned Subsidiary existing at
the time of the acquisition thereof as a result of an Investment pursuant to Section 10.05 or a
Permitted Acquisition effected in accordance with Section 9.14; provided that the
restrictions applicable to such joint venture are not made more burdensome, from the perspective of
the Borrower and its Subsidiaries, than those as in effect immediately before giving effect to the
consummation of the respective Investment or Permitted Acquisition; (vii) any restriction or
encumbrance with respect to assets subject to Liens permitted by Sections 10.03(iv), (x), (xi),
(xii) and (xvi); (viii) the Existing 2011 Senior Notes Documents; (ix) the Existing 2010 Senior
Notes Documents; (x) the Existing 2009 Senior Notes Documents; (xi) the Existing 2013 Senior Notes
Documents; (xii) the Intermediate Holdco Credit Documents; (xiii) the Term Credit Documents; (xiv)
the Wellbeing Project Financing Documents; (xv) on and after the execution and delivery thereof,
the Permitted Senior Notes Documents; and (xvi) on and after the execution and delivery thereof,
the Permitted Senior Refinancing Notes Documents.




          10.12. Limitation on the Creation of Subsidiaries and Joint Ventures. (a) Except as otherwise specifically provided in immediately succeeding clause (b), Holdings
will not, and will not permit any of its Subsidiaries to, establish, create or acquire after the
Initial Borrowing Date any Subsidiary, provided that the Borrower and its Wholly-Owned
Subsidiaries shall be permitted to establish or create Wholly-Owned Subsidiaries so long as (A) at
least 1 Business Day’s (or such longer period as is acceptable to the Administrative Agent in any
given case) of such establishment, creation or acquisition, as the case may be, written notice
thereof is given to the Administrative Agent (provided that no such notice shall be
required to be given in the case of a Shell Corporation), (B) subject to Sections 9.11(d) and 9.12,
the Equity Interests of each such new Wholly-Owned Subsidiary (if same is an Unrestricted
Subsidiary) are pledged pursuant to, and to the extent required by, the applicable Pledge
Agreements and, if such Equity Interests constitute certificated Equity Interests, the certificates
representing such Equity Interests, together with stock or other powers duly executed in blank, are
delivered to the Collateral Agent for the benefit of the Secured Creditors, (C) to the extent such
new Wholly-Owned Subsidiary is required, in accordance with the applicable provisions of Section
9.11, to become a Subsidiary Guarantor, (i) such new Wholly-Owned Subsidiary executes and delivers
counterparts of the Subsidiaries Guaranty, the Intercompany Subordination Agreement, the
Intercreditor Agreement and such Security Documents as would have been entered into by the
respective Subsidiary if same had been a Subsidiary Guarantor on the Initial Borrowing Date, and
takes all action in connection therewith as would otherwise have been required to be taken pursuant
to Section 6 if such new Wholly-Owned Subsidiary had been a Credit Party on the Initial Borrowing
Date, and (D) such new Wholly-Owned Subsidiary, to the extent requested by any Agent or the
Required Lenders, takes all other actions required pursuant to Section 9.11 (including, without
limitation, to, at its own expense, execute, acknowledge and deliver, or cause the execution,
acknowledgement and delivery of, and thereafter register, file or record in any appropriate
governmental office, any document or instrument reasonably deemed by the Collateral Agent to be
necessary or desirable for the creation and perfection of the Liens on its
assets intended to be created pursuant to the applicable Security Documents); provided
that (x) the Credit Documents required to be executed and delivered pursuant to clause (C) by such



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newly formed, created or acquired Subsidiary shall not be required to be so executed and delivered
until 45 days after the formation, creation or acquisition of such Subsidiary, and (y) in the case
of a Shell Corporation created or established by the Borrower or any of its Wholly-Owned
Subsidiaries, the actions described in clauses (B) and (C) and applicable to such Shell Corporation
shall not be required to be taken (so long as same remains a Shell Corporation) until 60 days after
the creation or establishment of such Shell Corporation.




          (b) In addition to Subsidiaries of the Borrower created pursuant to preceding clause (a), the
Borrower and its Subsidiaries may establish, acquire or create, and make Investments in, Non-Wholly
Owned Subsidiaries after the Initial Borrowing Date as a result of Permitted Acquisitions (subject
to the limitations contained in the definition thereof) and Investments expressly permitted to be
made pursuant to Section 10.05, provided that (x) all Equity Interests of each such
Non-Wholly Owned Subsidiary which is an Unrestricted Subsidiary shall be pledged by any Credit
Party which owns same to the extent required by the Pledge Agreements, and (y) any actions required
to be taken pursuant to Section 9.11 in connection with the establishment of, or Investments in,
the respective Subsidiaries are taken in accordance with the requirements of said Section 9.11.



          10.13. Special Restrictions Relating to Principal Property. No Credit Agreement Party will, nor will permit any Subsidiary Guarantor to, (i) own or
acquire any Principal Property (other than the Principal Properties designated on Schedule XVII
hereto) or (ii) directly or indirectly, create, incur, issue, assume, guarantee or otherwise become
liable for or suffer to exist any Indebtedness secured by a Lien on any Principal Property;
provided however that, notwithstanding the foregoing, (x) the Borrower and its
Subsidiaries may acquire (by way of third-party purchase) up to (but not more than) two Principal
Properties after the Initial Borrowing Date and, thereafter, own such Principal Properties and (y)
the Borrower and its Subsidiaries may own additional Principal Properties which are not Principal
Properties on the Initial Borrowing Date (or, if acquired after the Initial Borrowing Date, on such
date of acquisition) if (x) the respective Principal Property becomes a Principal Property after
the Initial Borrowing Date (or such date of acquisition) as a result of the making of capital
expenditures or other investments in such Property by the Borrower or the respective Subsidiary or
(y) the respective Principal Property is constructed by the Borrower or the respective Subsidiary.



          10.14. No Additional Deposit Accounts; etc. The Borrower will not, and will not permit any Subsidiary Guarantor, directly or indirectly,
open, maintain or otherwise have any checking, savings, deposit, securities or other accounts at
any bank or other financial institution where cash or Cash Equivalents are or may be deposited or
maintained with any Person, other than (i) the Core Concentration Account, (ii) the Collection
Accounts set forth on Part A of Schedule III, and (iii) the Excluded Deposit Accounts;
provided that the Borrower or any Subsidiary Guarantor may open new Collection Accounts,
not set forth in such Schedule III, so long as prior to opening any such account (i) the
Administrative Agent has consented in writing to such opening (which consent shall not be
unreasonably withheld or delayed), (ii) the Borrower has delivered an updated Schedule III to the
Administrative Agent listing such new account if such account is a Collection Account and (iii) in
the case of any new Collection Account), the financial institution with which such account is
opened, together with the Borrower or the



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Subsidiary Guarantor which has opened such account and
the Collateral Agent have executed and delivered to the Administrative Agent a Cash Management
Control Agreement.




          SECTION 11. Events of Default.



          Upon the occurrence of any of the following specified events (each, an “Event of
Default”):



          11.01. Payments. The Borrower shall (i) default in the payment when due of any principal of any Loan or
Note, (ii) default, and such default shall continue for three or more Business Days, in the payment
when due of any Unpaid Drawing, any interest on any Loan or Note or any Fees or (iii) default, and
such default shall continue for 10 or more Business Days after notice to the Borrower by the
Administrative Agent or any Lender, in the payment when due of any other amounts owing hereunder or
under any other Credit Document; or



          11.02. Representations, etc. Any representation, warranty or statement made or deemed made by any Credit Party herein or in
any other Credit Document (other than a Foreign Security Document) or in any statement or
certificate delivered pursuant hereto or thereto shall prove to be untrue in any material respect
on the date as of which made or deemed made; or



          11.03. Covenants. Holdings or any of its Subsidiaries shall (a) default in the due performance or observance
by it of any term, covenant or agreement contained in Sections 9.01(e)(i), 9.10, 9.11, 9.14, 9.17,
9.18, 9.19 or 10, or (b) default in the due performance or observance by it of any term, covenant
or agreement contained in Section 9.01(o) and such default shall continue unremedied for at least
one Business Day or (c) default in the due performance or observance by it of any term, covenant or
agreement contained in this Agreement (other than those referred to in Sections 11.01, 11.02 or
clause (a) or clause (b) of this Section 11.03) and such default shall continue unremedied for a
period of at least 30 days; or



          11.04. Default Under Other Agreements. (a) Holdings or any of its Subsidiaries shall (i) default in any payment with respect to
any Indebtedness (other than the Obligations) beyond the period of grace, if any, provided in the
instrument or agreement under which Indebtedness was created or (ii) default in the observance or
performance of any agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other event or condition
is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause (determined without regard to whether any notice is
required), any such Indebtedness to become due prior to its stated maturity; or (b) any
Indebtedness (other than the Obligations) of Holdings or any of its Subsidiaries shall be declared
to be (or shall become) due and payable, or shall be required to be prepaid other than by a
regularly scheduled required prepayment, prior to the stated maturity thereof; provided
that it shall not constitute an Event of Default pursuant to clause (a) or (b) of this Section
11.04 unless the principal amount of any one issue of such Indebtedness, or the aggregate amount of
all such Indebtedness referred to in clauses (a) and (b) above, equals or exceeds $25,000,000; or



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          11.05. Bankruptcy, etc. Holdings or any of its Subsidiaries shall commence a voluntary case concerning itself under
Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any
successor thereto (the “Bankruptcy Code”); or an involuntary case is commenced against Holdings or
any of its Subsidiaries and the petition is not controverted within 10 days, or is not dismissed
within 60 days, after commencement of the case; or a custodian (as defined in the Bankruptcy Code)
is appointed for, or takes charge of, all or substantially all of the property of Holdings or any
of its Subsidiaries; or Holdings or any of its Subsidiaries commences any other proceeding under
any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to
Holdings or any of its Subsidiaries; or there is commenced against Holdings or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60 days; or Holdings or
any of its Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or Holdings or any of its Subsidiaries suffers
any appointment of any custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 60 days; or Holdings or any of its Subsidiaries
makes a general assignment for the benefit of creditors; or any Company action is taken by Holdings
or any of its Subsidiaries for the purpose of effecting any of the foregoing; or



          11.06. ERISA. (a) Any Plan shall fail to satisfy the minimum funding standard required for any plan year
or part thereof under Section 412 of the Code or Section 302 of ERISA or a waiver of such standard
or extension of any amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a contributing sponsor (as
defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA shall be subject to
the advance reporting requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur with respect to such Plan
within the following 30 days which will result in a Material Adverse Effect, any Plan which is
subject to Title IV of ERISA shall have had or is likely to have a trustee appointed to administer
such Plan pursuant to Section 4042(b) of ERISA, any Plan or Multiemployer Plan which is subject to
Title IV of ERISA is, shall have been or is likely to be involuntarily terminated or to be the
subject of termination proceedings under ERISA, any Plan subject to Title IV of ERISA shall have an Unfunded Current Liability, a contribution required
to be made with respect to a Plan subject to Title IV of ERISA or Multiemployer Plan or a Foreign
Pension Plan has not been made within 60 days of when due, Holdings or any Subsidiary of Holdings
or any ERISA Affiliate has incurred or is likely to incur any liability to or on account of a Plan
subject to Title IV of ERISA or Multiemployer Plan under Section 409, 502(i), 502(l), 515, 4062,
4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on
account of a group health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the
Code) under Section 4980B of the Code, or Holdings or any Subsidiary of Holdings has incurred or is
likely to incur liabilities pursuant to one or more employee welfare benefit plans (as defined in
Section 3(1) of ERISA) that provide benefits to retired employees or other former employees (other
than as required by Section 601 of ERISA) or Plans or Foreign Pension Plans, a “default” within the
meaning of Section 4219(c)(5) of ERISA, shall occur with respect to any Plan or Multiemployer Plan;
(b) there shall result from any such event or events described above in this Section 10.06 the
imposition of a



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lien, the granting of a security interest, or a liability or a material risk of
incurring a liability resulting from any event described in clause (a) above; and (c) such lien,
security interest or liability, individually and/or in the aggregate, in the reasonable opinion of
the Required Lenders, has had, or could reasonably be expected to have, a Material Adverse Effect;
or




          11.07. Security Documents. (a) Any Security Document shall cease to be in full force and effect (except in accordance
with the terms thereof), or shall, subject to the Intercreditor Agreement, cease to give the
Collateral Agent for the benefit of the Secured Creditors the Liens, rights, powers and privileges
purported to be created thereby (including, without limitation, a perfected security interest in,
and Lien on, all of the Collateral), in favor of the Collateral Agent, superior to and prior to the
rights of all third Persons (except as permitted by Section 10.03), and subject to no other Liens
(except as permitted by Section 10.03), or (b) any Credit Party shall default in the due
performance or observance of any term, covenant or agreement on its part to be performed or
observed pursuant to any such Security Document and such default shall continue beyond any cure or
grace period specifically applicable thereto pursuant to the terms of any such Security Document;
provided that the failure to have a perfected and enforceable Lien on Collateral in favor
of the Collateral Agent shall not give rise to an Event of Default under this Section 11.07, unless
the aggregate fair market value of all Collateral over which the Collateral Agent fails to have a
perfected and enforceable Lien (exclusive of Collateral that is the subject of an Excluded Event)
equals or exceeds $10,000,000; or



          11.08. Guaranties. Any Guaranty or any provision thereof shall cease to be in full force or effect as to the
relevant Guarantor, or any Guarantor or Person acting by or on behalf of such Guarantor shall deny
or disaffirm such Guarantor’s obligations under the relevant Guaranty, or any Guarantor shall
default in the due performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to its Guaranty; or



          11.09. Judgments. One or more judgments or decrees shall be entered against Holdings or any of its
Subsidiaries involving a liability (to the extent not paid or covered by a reputable and solvent
insurance company (with any portion of any judgment or decree not so covered to be included in any
determination hereunder)) equal to or in excess of $25,000,000 for all such judgments and decrees
and all such judgments or decrees shall either be final and non-appealable or shall not have been
vacated, discharged or stayed or bonded pending appeal for any period of 60 consecutive days;
provided, however, that for the avoidance of doubt, the European Commission
Decision shall be deemed to have been stayed for so long as such decision is not final and
non-appealable and the Borrower and its applicable Subsidiaries are diligently pursuing an appeal
of such decision and have complied with all requirements of the European Commission with respect to
the posting of bonds, bank guarantees or other security for the European Commission Decision (after
giving effect to any waiver by the European Commission of any such requirements); provided,
further, that the rendering of any other such judgment(s) or decree(s) by courts outside of the
United States and Bermuda shall not be an Event of Default under this Section 11.09 unless (i)
Holdings and its Subsidiaries which are subject to the judgment(s) or decree(s), as of the date of
the issuance of such judgment(s) or decree(s) (or any later date while such judgment(s) or
decree(s) are still in effect) have at least $25,000,000 in net assets (determined on a book basis
without regard to any write-down or



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write-off of such assets as a result of such judgment(s) or
decree(s)) located in the jurisdictions (i.e., the relevant country or countries or any
larger jurisdiction of the respective court(s)) of the courts rendering such judgment(s) or
decree(s) (which is (or are) final and non-appealable or has (or have) not been vacated,
discharged, stayed or bonded pending appeal for any period of 60 consecutive days) or (ii) an order
or orders enforcing such judgment(s) or decree(s) (which is (or are) final and non-appealable or
has (or have) not been vacated, discharged, stayed or bonded pending appeal for any period of 60
consecutive days) is entered by a court or courts of competent jurisdiction in a jurisdiction or
jurisdictions where Holdings and/or its Subsidiaries subject to the order, as of the date of the
entry of such order of enforcement (or any later date while any such order is still in effect),
have at least $25,000,000 in net assets located in such jurisdiction or jurisdictions (determined
on a book basis without regard to any write-down or write-off of such assets as a result of such
judgment(s) or decree(s)); or




          11.10. Ownership. A Change of Control shall have occurred; or



          11.11. Denial of Liability. Any Credit Agreement Party shall deny its obligations under this Agreement, any Note or any
other Credit Document;


then, and in any such event, and at any time thereafter, if any Event of Default shall then be
continuing, the Administrative Agent shall, upon the written request of the Required Lenders, by
written notice to Holdings or the Borrower, take any or all of the following actions, without
prejudice to the rights of any Agent or any Lender to enforce its claims against any Credit Party
(provided that if an Event of Default specified in Section 11.05 shall occur with respect
to the Borrower, the result which would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i) and (ii) below shall occur automatically without
the giving of any such notice): (i) declare the Total Commitment terminated, whereupon the Revolving Loan
Commitment of each Lender shall forthwith terminate immediately and any Commitment Commission and
any other Fees shall forthwith become due and payable without any other notice of any kind; (ii)
declare the principal of and any accrued interest in respect of all Loans and all Obligations owing
hereunder (including Unpaid Drawings) to be, whereupon the same shall become, forthwith due and
payable without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower; (iii) enforce, as Collateral Agent (or direct the Collateral Agent to
enforce), subject to the Intercreditor Agreement, any or all of the Liens and security interests
created pursuant to the Security Documents; (iv) terminate any Letter of Credit which may be
terminated in accordance with its terms; (v) direct the Borrower to pay (and the Borrower agrees
that upon receipt of such notice, or upon the occurrence of an Event of Default specified in
Section 11.05 with respect to the Borrower, it will pay) to the Administrative Agent at the Payment
Office such additional amount of cash, to be held as security by the Administrative Agent, as is
equal to the aggregate Stated Amount of all Letters of Credit issued for the account of the
Borrower and then outstanding; and (vi) apply any cash collateral held by the Administrative Agent
as provided in Section 5.02 to the repayment of the Obligations.




          SECTION 12. The Administrative Agent.



          12.01. Appointment. The Lenders hereby irrevocably designate and appoint DBNY as Administrative Agent (for
purposes of this Section 12 and Section 13.01, the term




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“Administrative Agent” also shall include DBNY in its capacity as Collateral Agent pursuant to
the Security Documents) to act as specified herein and in the other Credit Documents. Each Lender
hereby irrevocably authorizes, and each holder of any Note by the acceptance of such Note shall be
deemed irrevocably to authorize, the Administrative Agent to take such action on its behalf under
the provisions of this Agreement, the other Credit Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to perform such duties
hereunder and thereunder as are specifically delegated to or required of the Administrative Agent
by the terms hereof and thereof and such other powers as are reasonably incidental thereto. The
Administrative Agent may perform any of its respective duties hereunder by or through its officers,
directors, agents, employees or affiliates.




          12.02. Nature of Duties. (a) The Administrative Agent shall not have any duties or responsibilities except those
expressly set forth in this Agreement and in the other Credit Documents. Neither the
Administrative Agent nor any of its officers, directors, agents, employees or affiliates shall be
liable for any action taken or omitted by it or them hereunder or under any other Credit Document
or in connection herewith or therewith, unless caused by its or their gross negligence or willful
misconduct (as determined by a court of competent jurisdiction in a final and non-appealable
decision). The duties of the Administrative Agent shall be mechanical and administrative in
nature; the Administrative Agent shall not have by reason of this Agreement or any other Credit
Document a fiduciary relationship in respect of any Lender or the holder of any Note; and nothing
in this Agreement or in any other Credit Document, expressed or implied, is intended to or shall be
so construed as to impose upon the Administrative Agent any obligations in respect of this
Agreement or any other Credit Document except as expressly set forth herein or therein.




          (b) Notwithstanding any other provision of this Agreement or any provision of any other Credit
Document, the Lead Arranger is named as such for recognition purposes only, and in its capacity as
such shall have no powers, duties, responsibilities or liabilities with respect to this Agreement
or the other Credit Documents or the transactions contemplated hereby and thereby; it being
understood and agreed that the Lead Arranger shall be entitled to all indemnification and
reimbursement rights in favor of the Administrative Agent as, and to the
extent, provided for under Sections 12.06 and 13.01. Without limitation of the foregoing, the
Lead Arranger shall not, solely by reason of this Agreement or any other Credit Documents, have any
fiduciary relationship in respect of any Lender or any other Person.




          12.03. Lack of Reliance on the Administrative Agent. Independently and without reliance upon the Administrative Agent, each Lender and the
holder of each Note, to the extent it deems appropriate, has made and shall continue to make (i)
its own independent investigation of the financial condition and affairs of Holdings and its
Subsidiaries in connection with the making and the continuance of the Loans and the taking or not
taking of any action in connection herewith and (ii) its own appraisal of the creditworthiness of
Holdings and its Subsidiaries and, except as expressly provided in this Agreement, the
Administrative Agent shall not have any duty or responsibility, either initially or on a continuing
basis, to provide any Lender or the holder of any




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Note with any credit or other information with
respect thereto, whether coming into its possession before the making of the Loans or at any time
or times thereafter. The Administrative Agent shall not be responsible to any Lender or the holder
of any Note for any recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith or for the execution,
effectiveness, genuineness, validity, enforceability, perfection, collectibility, priority or
sufficiency of this Agreement or any other Credit Document or the financial condition of Holdings
or any of its Subsidiaries or be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement or any other Credit
Document, or the financial condition of Holdings or any of its Subsidiaries or the existence or
possible existence of any Default or Event of Default.




          12.04. Certain Rights of the Administrative Agent. If the Administrative Agent requests instructions from the Required Lenders with respect to
any act or action (including failure to act) in connection with this Agreement or any other Credit
Document, the Administrative Agent shall be entitled to refrain from such act or taking such action
unless and until the Administrative Agent shall have received instructions from the Required
Lenders; and the Administrative Agent shall not incur liability to any Lender by reason of so
refraining. Without limiting the foregoing, neither any Lender nor the holder of any Note shall
have any right of action whatsoever against the Administrative Agent as a result of the
Administrative Agent acting or refraining from acting hereunder or under any other Credit Document
in accordance with the instructions of the Required Lenders.




          12.05. Reliance. The Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cablegram, radiogram, order or other document or telephone message signed, sent
or made by any Person that the Administrative Agent believed to be the proper Person, and, with
respect to all legal matters pertaining to this Agreement and any other Credit Document and its
duties hereunder and thereunder, upon advice of counsel selected by the Administrative Agent.




          12.06. Indemnification. To the extent the Administrative Agent (or any affiliate thereof) is not reimbursed and
indemnified by the Borrower, the Lenders will reimburse and indemnify the Administrative Agent (and
any affiliate thereof) in proportion to their respective “percentage” as used in determining the
Required Lenders (determined as if there were no Defaulting Lenders) for and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses
or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred
by the Administrative Agent (or any affiliate thereof) in performing its duties hereunder or under
any other Credit Document or in any way relating to or arising out of this Agreement or any other
Credit Document; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent’s (or such affiliate’s) gross
negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and
non-appealable decision).




          12.07. The Administrative Agent in its Individual Capacity. With respect to its obligation to make Loans, or issue or participate in Letters of Credit,
under this Agreement, the Administrative Agent shall have the rights and powers specified herein
for a “Lender” and may exercise the same rights and powers as though it were not performing
the duties specified herein;




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and the term “Lender,” “Required Lenders,”
“Holders of Notes” or any similar terms shall, unless the context clearly indicates
otherwise, include the Administrative Agent in its respective individual capacities. The
Administrative Agent and its affiliates may accept deposits from, lend money to, and generally
engage in any kind of banking, investment banking, trust or other business with, or provide debt
financing, equity capital or other services (including financial advisory services) to any Credit
Party or any Affiliate of any Credit Party (or any Person engaged in a similar business with any
Credit Party or any Affiliate thereof) as if they were not performing the duties specified herein,
and may accept fees and other consideration from any Credit Party or any Affiliate of any Credit
Party for services in connection with this Agreement and otherwise without having to account for
the same to the Lenders.




          12.08. Holders. (a) The Administrative Agent may deem and treat the payee of any Note as the owner thereof
for all purposes hereof unless and until a written notice of the assignment, transfer or
endorsement thereof, as the case may be, shall have been filed with the Administrative Agent. Any
request, authority or consent of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Note shall be conclusive and binding on any subsequent
holder, transferee, assignee or endorsee, as the case may be, of such Note or of any Note or Notes
issued in exchange therefor.




          (b) Without limiting the provisions of preceding clause (a), the parties hereto acknowledge
and agree that any Agent hereunder may also act in individual or agency capacities in connection
with other financings, including, without limitation, pursuant to the Term Credit Documents. The
parties hereto agree to each of the Agents acting in such other individual and
agency capacities, and shall not raise any claim in connection therewith (except to the extent
resulting from the gross negligence or willful misconduct of the respective such Person as an Agent
hereunder).




          12.09. Resignation by the Administrative Agent. (a) The Administrative Agent may resign from the performance of all its respective
functions and duties hereunder and/or under the other Credit Documents at any time by giving 15
Business Days’ prior written notice to the Lenders and, unless a Default or an Event of Default
under Section 11.05 then exists, the Borrower. Any such resignation by an Administrative Agent
hereunder shall also constitute its resignation as an Issuing Lender and the Swingline Lender, in
which case the resigning Administrative Agent (x) shall not be required to issue any further
Letters of Credit or make any additional Swingline Loans hereunder and (y) shall maintain all of
its rights as Issuing Lender or Swingline Lender, as the case may be, with respect to any Letters
of Credit issued by it, or Swingline Loans made by it, prior to the date of such resignation. Such
resignation shall take effect upon the appointment of a successor Administrative Agent pursuant to
clauses (b) and (c) below or as otherwise provided below.




          (b) Upon any such notice of resignation by the Administrative Agent, the Required Lenders
shall appoint a successor Administrative Agent hereunder or thereunder who shall be a commercial
bank or trust company reasonably acceptable to the Borrower, which acceptance shall not be
unreasonably withheld or delayed (provided that the Borrower’s approval shall not be
required if an Event of Default then exists).




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          (c) If a successor Administrative Agent shall not have been so appointed within such 15
Business Day period, the Administrative Agent, with the consent of the Borrower (which consent
shall not be unreasonably withheld or delayed, provided that the Borrower’s consent shall
not be required if an Event of Default then exists), shall then appoint a successor Administrative
Agent who shall serve as Administrative Agent hereunder or thereunder until such time, if any, as
the Required Lenders appoint a successor Administrative Agent as provided above.




          (d) If no successor Administrative Agent has been appointed pursuant to clause (b) or (c)
above by the 20th Business Day after the date such notice of resignation was given by the
Administrative Agent, the Administrative Agent’s resignation shall become effective and the
Required Lenders shall thereafter perform all the duties of the Administrative Agent hereunder
and/or under any other Credit Document until such time, if any, as the Required Lenders appoint a
successor Administrative Agent as provided above.




          (e) Upon a resignation of the Administrative Agent pursuant to this Section 12.09, the
Administrative Agent shall remain indemnified to the extent provided in this Agreement and the
other Credit Documents and the provisions of this Section 12 (and the analogous provisions of the
other Credit Documents) shall continue in effect for the benefit of the Administrative Agent for
all of its actions and inactions while serving as the Administrative Agent.




          12.10. Collateral Matters. (a) Each Lender authorizes and directs the Collateral Agent to enter into the Security
Documents and the Intercreditor Agreement. Each Lender hereby agrees, and each holder of any Note
by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any
action taken by the Required Lenders in accordance with the provisions of this Agreement or the
Security Documents, and the exercise by the Required Lenders of the powers set forth herein or
therein, together with such other powers as are reasonably incidental thereto, shall be authorized
and binding upon all of the Lenders. The Collateral Agent is hereby authorized on behalf of all of
the Lenders, without the necessity of any notice to or further consent from any Lender, from time
to time prior to an Event of Default, to take any action with respect to any Collateral or Security
Documents which may be necessary to perfect and maintain perfected the security interest in and
liens upon the Collateral granted pursuant to the Security Documents.




          (b) The Lenders hereby authorize the Collateral Agent, at its option and in its discretion, to
release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon
termination of the Revolving Loan Commitments (and all Letters of Credit) and payment and
satisfaction of all of the Obligations (other than inchoate indemnification obligations) at any
time arising under or in respect of this Agreement or the Credit Documents or the transactions
contemplated hereby or thereby, (ii) constituting property being sold or otherwise disposed of (to
Persons other than Holdings and its Subsidiaries) upon the sale or other disposition thereof in
compliance with Section 10.02, (iii) if approved, authorized or ratified in writing by the Required
Lenders (or all of the Lenders hereunder, to the extent required by Section 13.12), (iv) as
otherwise may be expressly provided in the relevant Security Documents. Upon request by the
Administrative Agent at any time, the Lenders will confirm in writing the Collateral Agent’s




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authority to release particular types or items of Collateral pursuant to this Section 12.10 or (v)
constituting Equity Interests or assets of any Subsidiary of the Borrower upon the liquidation or
dissolution of such Subsidiary in a transaction permitted by the Credit Documents.




          (c) The Collateral Agent shall have no obligation whatsoever to the Lenders or to any other
Person to assure that the Collateral exists or is owned by any Credit Party or is cared for,
protected or insured or that the Liens granted to the Collateral Agent herein or pursuant hereto
have been properly or sufficiently or lawfully created, perfected, protected or enforced or are
entitled to any particular priority, or to exercise or to continue exercising at all or in any
manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers
granted or available to the Collateral Agent in this Section 12.10 or in any of the Security
Documents, it being understood and agreed that in respect of the Collateral, or any act, omission
or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in
its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the
Lenders and that the Collateral Agent shall have no duty or liability whatsoever to the Lenders,
except for its gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).




          12.11. Delivery of Information. The Administrative Agent shall not be required to deliver to any Lender originals or copies
of any documents, instruments, notices, communications or other information
received by the Administrative Agent from any Credit Party, any Subsidiary, the Required
Lenders, any Lender or any other Person under or in connection with this Agreement or any other
Credit Document except (i) as specifically provided in this Agreement or any other Credit Document
and (ii) as specifically requested from time to time in writing by any Lender with respect to a
specific document, instrument, notice or other written communication received by and in the
possession of the Administrative Agent at the time of receipt of such request and then only in
accordance with such specific request.




          SECTION
13. Miscellaneous.




          13.01. Payment of Expenses, etc.The Borrower hereby agrees to:
(i) whether or not the transactions herein contemplated are
consummated, pay all reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and disbursements of White & Case LLP and the
Administrative Agent’s other counsel and consultants) in connection with the preparation,
execution, delivery and administration of this Agreement and the other Credit Documents and the
documents and instruments referred to herein and therein and any amendment, waiver or consent
relating hereto or thereto, of the Administrative Agent and its Affiliates in connection with its
or their syndication efforts with respect to this Agreement and of the Administrative Agent and,
after the occurrence of an Event of Default, each of the Issuing Lenders and Lenders in connection
with the enforcement of this Agreement and the other Credit Documents and the documents and
instruments referred to herein and therein or in connection with any refinancing or restructuring
of the credit arrangements provided under this Agreement in the nature of a “work-out” or pursuant
to any insolvency or bankruptcy proceedings (including, in each case without limitation, the
reasonable fees and disbursements of counsel and consultants (including, without limitation, any
inventory consultants) for the Administrative Agent and, after the occurrence of an Event of
Default,




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counsel for each of the Issuing Lenders and Lenders); (ii) pay and hold the Administrative
Agent, each of the Issuing Lenders and each of the Lenders harmless from and against any and all
present and future stamp, excise and other similar documentary taxes with respect to the foregoing
matters and save the Administrative Agent, each of the Issuing Lenders and each of the Lenders
harmless from and against any and all liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to the Administrative Agent, such Issuing Lender or
such Lender) to pay such taxes; and (iii) indemnify the Administrative Agent, each Issuing Lender
and each Lender, and each of their respective officers, directors, employees, representatives,
advisors, agents, affiliates, trustees and investment advisors from and hold each of them harmless
against any and all liabilities, obligations (including removal or remedial actions), losses,
damages, penalties, claims, actions, judgments, suits, costs, expenses and disbursements (including
reasonable attorneys’ and consultants’ fees and disbursements) incurred by, imposed on or assessed
against any of them as a result of, or arising out of, or in any way related to, or by reason of,
(a) any investigation, litigation or other proceeding (whether or not the Administrative Agent, any
Issuing Lender or any Lender is a party thereto and whether or not such investigation, litigation
or other proceeding is brought by or on behalf of any Credit Party) related to the entering into
and/or performance of this Agreement or any other Credit Document or the use of any Letter of
Credit or the proceeds of any Loans hereunder or the consummation of the Transaction or any other
transactions contemplated herein or in any other Credit Document or the exercise of any of their
rights or remedies provided herein or in the other Credit Documents, or (b) the actual or alleged
presence of Hazardous Materials in the air, surface water or groundwater or on the surface or
subsurface of any Real Property at any time owned, leased or operated by Holdings or any of its
Subsidiaries, the generation, storage, transportation, handling or disposal of Hazardous Materials
by Holdings or any of its Subsidiaries at any location, whether or not owned, leased or operated by
Holdings or any of its Subsidiaries, the non-compliance by Holdings or any of its Subsidiaries with
any Environmental Law (including applicable permits thereunder) applicable to any Real Property, or
any Environmental Claim asserted against Holdings, any of its Subsidiaries or any Real Property at
any time owned, leased or operated by Holdings or any of its Subsidiaries, including, in each case,
without limitation, the reasonable fees and disbursements of counsel and other consultants incurred
in connection with any such investigation, litigation or other proceeding (but excluding any
losses, liabilities, claims, damages or expenses to the extent incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified (as determined by a court of
competent jurisdiction in a final and non-appealable decision)). To the extent that the
undertaking to indemnify, pay or hold harmless the Administrative Agent, any Issuing Lender or any
Lender set forth in the preceding sentence may be unenforceable because it is violative of any law
or public policy, the Borrower shall make the maximum contribution to the payment and satisfaction
of each of the indemnified liabilities which is permissible under applicable law.




          13.02. Right of Setoff. (a) In addition to any rights now or hereafter granted under applicable law or otherwise,
and not by way of limitation of any such rights, upon the occurrence and during the continuance of
an Event of Default, the Administrative Agent, each Issuing Lender and each Lender is hereby
authorized at any time or from time to time, without presentment, demand, protest or other notice
of any kind to any Credit Party or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits (general or special) and any
other Indebtedness at any time held or owing by




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the Administrative Agent, such Issuing Lender or
such Lender (including, without limitation, by branches and agencies of the Administrative Agent,
such Issuing Lender or such Lender wherever located) to or for the credit or the account of
Holdings or any of its Subsidiaries against and on account of the Obligations and liabilities of
the Credit Parties to the Administrative Agent, such Issuing Lender or such Lender under this
Agreement or under any of the other Credit Documents, including, without limitation, all interests
in Obligations purchased by such Lender pursuant to Section 13.04(b), and all other claims of any
nature or description arising out of or connected with this Agreement or any other Credit Document,
irrespective of whether or not the Administrative Agent, such Issuing Lender or such Lender shall
have made any demand hereunder and although said Obligations, liabilities or claims, or any of
them, shall be contingent or unmatured.




          (b) NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY TIME THAT THE LOANS OR ANY OTHER
OBLIGATION SHALL BE
SECURED BY REAL PROPERTY LOCATED IN CALIFORNIA, NO LENDER SHALL EXERCISE A RIGHT OF SETOFF,
LIEN OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY PROCEEDING TO
ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE UNLESS IT IS TAKEN WITH THE CONSENT OF THE
REQUIRED LENDERS OR APPROVED IN WRITING BY THE ADMINISTRATIVE AGENT, IF SUCH SETOFF OR ACTION OR
PROCEEDING WOULD OR MIGHT (PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 580a, 580b, 580d
AND 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION 2924 OF THE CALIFORNIA CIVIL CODE, IF
APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE VALIDITY, PRIORITY OR ENFORCEABILITY OF THE LIENS
GRANTED TO THE COLLATERAL AGENT PURSUANT TO THE SECURITY DOCUMENTS OR THE ENFORCEABILITY OF THE
NOTES AND OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY LENDER OF ANY SUCH RIGHT
WITHOUT OBTAINING SUCH CONSENT OF THE REQUIRED LENDERS OR THE ADMINISTRATIVE AGENT SHALL BE NULL
AND VOID. THIS SUBSECTION (b) SHALL BE SOLELY FOR THE BENEFIT OF EACH OF THE LENDERS AND THE
ADMINISTRATIVE AGENT HEREUNDER.




          13.03. Notices. Except as otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopier or cable
communication) and mailed, telegraphed, telecopied, cabled or delivered: if to any Credit Party,
at the address specified opposite its signature below or in the other relevant Credit Documents; if
to any Lender, at its address specified on Schedule II; and if to the Administrative Agent, at the
Notice Office; or, as to any Credit Party or the Administrative Agent, at such other address as
shall be designated by such party in a written notice to the other parties hereto and, as to each
Lender, at such other address as shall be designated by such Lender in a written notice to the
Borrower and the Administrative Agent. All such notices and communications shall, when mailed,
telegraphed, telecopied, or cabled or sent by overnight courier, be effective when deposited in the
mails, delivered to the telegraph company, cable company or overnight courier, as the case may be,
or sent by telecopier, except that notices and




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communications to the Administrative Agent and the
Borrower shall not be effective until received by the Administrative Agent or the Borrower, as the
case may be.




          13.04. Benefit of Agreement; Assignments; Participations. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by
the respective successors and assigns of the parties hereto; provided, however,
neither Holdings nor the Borrower may assign or transfer any of its rights, obligations or interest
hereunder without the prior written consent of the Lenders and, provided further,
that, although any Lender may transfer, assign or grant participations in its rights hereunder,
such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or assign all
or any portion of its Revolving Loan Commitments hereunder except as provided in Sections 2.13 and
13.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a
“Lender” hereunder and, provided, further, that no Lender shall transfer or
grant any participation under which the participant shall have rights to approve any amendment to
or waiver of this Agreement or any other Credit Document except to the extent such amendment or
waiver would (i) extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless
such Letter of Credit is not extended beyond the Revolving Loan Maturity Date) in which such
participant is participating, or reduce the rate or extend the time of payment of interest or Fees
thereon (except in connection with a waiver of applicability of any post-default increase in
interest rates) or reduce the principal amount thereof (it being understood that any amendment or
modification to the financial definitions in this Agreement or to Section 13.07(a) shall not
constitute a reduction in the rate of interest or Fees payable hereunder), or increase the amount
of the participant’s participation over the amount thereof then in effect (it being understood that
a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment
shall not constitute a change in the terms of such participation, and that an increase in any
Revolving Loan Commitment (or the available portion thereof) or Loan shall be permitted without the
consent of any participant if the participant’s participation is not increased as a result
thereof), (ii) consent to the assignment or transfer by Holdings or the Borrower of any of its
rights and obligations under this Agreement or (iii) release all or substantially all of the
Collateral under all of the Security Documents (except as expressly provided in the Credit
Documents) supporting the Loans or Letters of Credit hereunder in which such participant is
participating. In the case of any such participation, the participant shall not have any rights
under this Agreement or any of the other Credit Documents (the participant’s rights against such
Lender in respect of such participation to be those set forth in the agreement executed by such
Lender in favor of the participant relating thereto) and all amounts payable by the Borrower
hereunder shall be determined as if such Lender had not sold such participation.




          (b) Notwithstanding the foregoing, any Lender (or any Lender together with one or more other
Lenders) may (x) assign all or a portion of its Revolving Loan Commitments and related outstanding
Obligations (or, if the Revolving Loan Commitments with respect to the relevant Tranche have
terminated, outstanding Obligations) hereunder to (i)(A) its parent company and/or any affiliate of
such Lender which is at least 50% owned by such Lender or its parent company or (B) to one or more
other Lenders or any affiliate of any such other Lender which is at least 50% owned by such other
Lender or its parent company (provided that any fund that invests in loans and is managed
or advised by the same investment advisor of another fund which is a Lender (or by an Affiliate of
such investment advisor) shall be treated as an affiliate of




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such other Lender for the purposes of
this sub-clause (x)(i)(B)), or (ii) in the case of any Lender that is a fund that invests in loans,
any other fund that invests in loans and is managed or advised by the same investment advisor of
any Lender or by an Affiliate of such investment advisor or (y) assign all, or if less than
all, a portion equal to at least $10,000,000 in the aggregate for the assigning Lender or assigning
Lenders, of such Revolving Loan Commitments and related outstanding Obligations (or, if the
Revolving Loan Commitments with respect to the relevant Tranche have terminated, outstanding
Obligations) hereunder to one or more Eligible Transferees (treating any fund that invests in loans
and any other fund that invests in loans and is managed or advised by the same investment advisor
of such fund or by an Affiliate of such investment advisor as a single Eligible Transferee), each
of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment
and Assumption Agreement, provided that (i) at such time, Schedule I shall be deemed
modified to reflect the Revolving Loan
Commitments and/or outstanding Loans, as the case may be, of such new Lender and of the
existing Lenders, (ii) upon the surrender of the relevant Notes by the assigning Lender (or, upon
such assigning Lender’s indemnifying the Borrower for any lost Note pursuant to a customary
indemnification agreement) new Notes will be issued, at the Borrower’s expense, to such new Lender
and to the assigning Lender upon the request of such new Lender or assigning Lender, such new Notes
to be in conformity with the requirements of Section 2.05 (with appropriate modifications) to the
extent needed to reflect the revised Revolving Loan Commitments and/or outstanding Loans, as the
case may be, (iii) the consent of the Administrative Agent and the Issuing Lender and, so long as
no Default or Event of Default then exists and the Syndication Date has theretofore occurred, the
Borrower, shall be required in connection with any such assignment pursuant to clause (y) above
(such consent, in any case, not to be unreasonably withheld, delayed or conditioned), (iv) the
Administrative Agent shall receive at the time of each such assignment, from the assigning or
assignee Lender, the payment of a non-refundable assignment fee of $3,500 and (v) no such transfer
or assignment will be effective until recorded by the Administrative Agent on the Register pursuant
to Section 13.15. To the extent of any assignment pursuant to this Section 13.04(b), the assigning
Lender shall be relieved of its obligations hereunder with respect to its assigned Revolving Loan
Commitments and outstanding Loans. At the time of each assignment pursuant to this Section
13.04(b) to a Person which is not already a Lender hereunder and which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax
purposes, the respective assignee Lender shall, to the extent legally entitled to do so, provide to
the Borrower the appropriate Internal Revenue Service Forms (and, if applicable, a Section
5.04(b)(ii) Certificate) described in Section 5.04(b). To the extent that an assignment of all or
any portion of a Lender’s Revolving Loan Commitments and related outstanding Obligations pursuant
to Section 2.13 or this Section 13.04(b) would, at the time of such assignment, result in increased
costs under Section 2.10, 3.06 or 5.04 from those being charged by the respective assigning Lender
prior to such assignment, then the Borrower shall not be obligated to pay such increased costs
(although the Borrower, in accordance with and pursuant to the other provisions of this Agreement,
shall be obligated to pay any other increased costs of the type described above resulting from
changes after the date of the respective assignment).




          (c) Nothing in this Agreement shall prevent or prohibit any Lender from pledging its Loans and
Notes hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such
Federal Reserve Bank and, with prior notification to the




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Administrative Agent (but without the
consent of the Administrative Agent or the Borrower), any Lender which is a fund may pledge all or
any portion of its Loans and Notes to its trustee or to a collateral agent providing credit or
credit support to such Lender in support of its obligations to such trustee, such collateral agent
or a holder of such obligations, as the case may be. No pledge pursuant to this clause (c) shall
release the transferor Lender from any of its obligations hereunder or substitute (by foreclosure
or otherwise) any such pledgee or assignee for such Lender as a party thereto.




          (d) Any Lender which assigns all of its Revolving Loan Commitments and/or Loans hereunder in
accordance with Section 13.04(b) shall cease to constitute a “Lender” hereunder, except with
respect to indemnification provisions under this Agreement (including,
without limitation, Sections 2.10, 2.11, 3.06, 5.04, 12.06, 13.01 and 13.06), which shall
survive as to such assigning Lender.




          13.05. No Waiver; Remedies Cumulative. No failure or delay on the part of the Administrative Agent, the Collateral Agent, any
Issuing Lender or any Lender in exercising any right, power or privilege hereunder or under any
other Credit Document and no course of dealing between the Borrower or any other Credit Party and
the Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder
or under any other Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights, powers and remedies
herein or in any other Credit Document expressly provided are cumulative and not exclusive of any
rights, powers or remedies which the Administrative Agent, the Collateral Agent, any Issuing Lender
or any Lender would otherwise have. No notice to or demand on any Credit Party in any case shall
entitle any Credit Party to any other or further notice or demand in similar or other circumstances
or constitute a waiver of the rights of the Administrative Agent, the Collateral Agent, any Issuing
Lender or any Lender to any other or further action in any circumstances without notice or demand.




          13.06. Payments Pro Rata. (a) Except as otherwise provided in this Agreement, the Administrative Agent agrees that
promptly after its receipt of each payment from or on behalf of the Borrower in respect of the
Obligations hereunder, the Administrative Agent shall distribute such payment to the Lenders
entitled thereto (other than any Lender that has consented in writing to waive its pro
rata share of any such payment) pro rata based upon their respective
shares, if any, of the Obligations with respect to which such payment was received.




          (b) Each of the Lenders agrees that, if it should receive any amount hereunder (whether by
voluntary payment, by realization upon security, by the exercise of the right of setoff or banker’s
lien, by counterclaim or cross action, by the enforcement of any right under the Credit Documents,
or otherwise), which is applicable to the payment of the principal of, or interest on, the Loans,
Unpaid Drawings, Commitment Commission or Letter of Credit Fees, of a sum which with respect to the
related sum or sums received by other Lenders is in a greater proportion than the total of such
Obligation then owed and due to such Lender bears to the total of such Obligation then owed and due
to all of the Lenders immediately prior to such receipt, then such Lender receiving such excess
payment shall purchase for cash without recourse or





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warranty from the other Lenders an interest in the Obligations of the respective Credit Party to
such Lenders in such amount as shall result in a proportional participation by all the Lenders in
such amount; provided that if all or any portion of such excess amount is thereafter
recovered from such Lenders, such purchase shall be rescinded and the purchase price restored to
the extent of such recovery, but without interest.




          (c) Notwithstanding anything to the contrary contained herein, the provisions of the preceding
Sections 13.06(a) and (b) shall be subject to the express provisions of this Agreement which
require, or permit, differing payments to be made to Non-Defaulting Lenders as opposed to
Defaulting Lenders.




          13.07. Calculations; Computations. (a) The financial statements to be furnished to the
Lenders pursuant hereto shall be made and prepared in accordance with U.S. GAAP consistently
applied throughout the periods involved (except as set forth in the notes thereto or as otherwise
disclosed in writing by Holdings to the Lenders), provided that (i) except as otherwise
specifically provided herein, all computations determining the Excess Cash Flow, the Senior
Leverage Ratio, the Total Leverage Ratio and compliance with Sections 3, 9.14 and 9, including in
each case definitions used therein, shall, in each case, utilize United States accounting
principles and policies in effect at the time of the preparation of, and in conformity with those
used to prepare, the historical consolidated audited financial statements of the Borrower delivered
to the Lenders pursuant to Section 7.10(b) of the Original Credit Agreement for Fiscal Year 2005,
(ii) to the extent expressly required pursuant to the provisions of this Agreement, certain
calculations shall be made on a Pro Forma Basis and (iii) for purposes of
determining compliance with any incurrence or expenditure tests set forth in Sections 9 and/or 10,
any amounts so incurred or expended (to the extent incurred or expended in a currency other than
Dollars) shall be converted into Dollars on the basis of the exchange rates (as shown on Reuters
ECB page 37 or, if same does not provide such exchange rates, on such other basis as is reasonably
satisfactory to the Administrative Agent) as in effect on the date of such incurrence or
expenditure under any provision of any such Section that has an aggregate Dollar limitation
provided for therein (and to the extent the respective incurrence or expenditure test regulates the
aggregate amount outstanding at any time and it is expressed in terms of Dollars, all outstanding
amounts originally incurred or spent in currencies other than Dollars shall be converted into
Dollars on the basis of the exchange rates (as shown on Reuters ECB page 37 or, if same does not
provide such exchange rates, on such other basis as is reasonably satisfactory to the
Administrative Agent) as in effect on the date of any new incurrence or expenditures made under any
provision of any such Section that regulates the Dollar amount outstanding at any time).




          (b) All computations of interest, Commitment Commission and other Fees hereunder shall be made
on the basis of a year of 360 days (except for interest calculated by reference to (x) the Prime
Lending Rate, which shall be based on a year of 365 or 366 days, as applicable and (y) Sterling
LIBOR, which shall be based on a year of 365 days) for the actual number of days (including the
first day but excluding the last day; except that in the case of Letter of Credit Fees and Facing
Fees, the last day shall be included) occurring in the period for which such interest, Commitment
Commission or Fees are payable.



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          13.08. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL. (a) THIS
AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
AND THEREUNDER SHALL, EXCEPT AS OTHERWISE PROVIDED IN ANY MORTGAGE, BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES). ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, EACH OF HOLDINGS AND THE
BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH OF HOLDINGS AND THE BORROWER
HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER
HOLDINGS OR THE BORROWER, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE AFOREMENTIONED COURTS,
THAT SUCH COURTS LACK PERSONAL JURISDICTION OVER HOLDINGS OR THE BORROWER. EACH OF HOLDINGS AND
THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO HOLDINGS OR THE BORROWER AT ITS ADDRESS SET FORTH
OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH OF
HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED
HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR
INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY LENDER OR THE
HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST HOLDINGS OR THE BORROWER IN ANY OTHER JURISDICTION.




          (b) EACH OF HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED
TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN
ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.




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          (c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.




          13.09. Counterparts. This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so executed and delivered
shall be an original, but all of which shall together constitute one and the same instrument. A
set of counterparts executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.




          13.10. Effectiveness. This Agreement shall become effective on the date (the “Effective
Date”) on which Holdings, the Borrower, the Administrative Agent, the Lead Arranger and each of
the Lenders shall have signed a counterpart hereof (whether the same or different counterparts) and
shall have delivered the same to the Administrative Agent at the Notice Office or, in the case of
the Lenders, shall have given to the Administrative Agent telephonic (confirmed in writing),
written or telex notice (actually received) at such office that the same has been signed and mailed
to it. The Administrative Agent will give Holdings, the Borrower and each Lender prompt written
notice of the occurrence of the Effective Date.




          13.11. Headings Descriptive. The headings of the several Sections and subsections of this
Agreement are inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.




          13.12. Amendment or Waiver; etc. (a) Neither this Agreement nor any other Credit Document
nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such
change, waiver, discharge or termination is in writing signed by the respective Credit Parties
party hereto or thereto and the Required Lenders (although additional parties may be added to (and
annexes may be modified to reflect such additions), and Subsidiaries of the Borrower may be
released from, the Subsidiaries Guaranty and the Security Documents in accordance with the
provisions hereof and thereof without the consent of the other Credit Parties party thereto or the
Required Lenders), provided that no such change, waiver, discharge or termination shall,
without the consent of each Lender (other than a Defaulting Lender) (with Obligations being
directly affected in the case of following clause (i) or clause (ix)), (i) extend the final
scheduled maturity of any Loan or Note or extend the stated expiration date of any Letter of Credit
beyond the Revolving Loan Maturity Date, or reduce the rate or extend the time of payment of
interest or Fees thereon (except in connection with the waiver of applicability of any post-default
increase in interest rates), or reduce (or forgive) the principal amount thereof (it being
understood that any amendment or modification to the financial definitions in this Agreement or to
Section 13.07(a) shall not constitute a reduction in the rate of interest or Fees for the purposes
of this clause (i)), (ii) release all or substantially all of (x) the Collateral (except as
expressly provided in the Credit Documents) under all the Security Documents or (y) the Guarantors
under the Guaranties, (iii) amend, modify or waive any provision of this Section 13.12(a) (except
for technical amendments with respect to additional extensions of credit pursuant to this Agreement
which afford the protections to such additional



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extensions of credit of the type provided to the Revolving Loan Commitments on the Effective
Date), (iv) reduce the “majority” voting threshold specified in the definition of Required Lenders
(it being understood that, with the consent of the Required Lenders, additional extensions of
credit pursuant to this Agreement may be included in the determination of the Required Lenders on
substantially the same basis as the extensions of Revolving Loan Commitments are included on the
Effective Date), (v) consent to the assignment or transfer by Holdings or the Borrower of any of
its rights and obligations under this Agreement, (vi) increase the advance rates applicable to the
Borrowing Base over those in effect on the Initial Borrowing Date (it being understood that the
establishment, modification or elimination of Reserves and adjustment, establishment and
elimination of criteria for Eligible Accounts and Eligible Inventory, in each case by
Administrative Agent in accordance with the terms hereof, will not be deemed such an increase in
advance rates), (vii) increase the percentage of the Borrowing Base for which Agent Advances may be
made pursuant to Section 2.01(e), (viii) increase the Total Commitment (other than as contemplated
by Section 2.14) or (ix) or increase the Revolving Loan Commitment of any Lender; provided
further, that no such change, waiver, discharge or termination shall (1) without the
consent of each Issuing Lender, amend, modify or waive any provision of Section 1 or alter its
rights or obligations with respect to Letters of Credit, (2) without the consent of the Swingline
Lender, alter the Swingline Lender’s rights or obligations with respect to Swingline Loans, (3)
without the consent of the Administrative Agent, amend, modify or waive any provision of Section 12
or any other provision as same relates to the rights or obligations of the Administrative Agent, or
(4) without the consent of Collateral Agent, amend, modify or waive any provision relating to the
rights or obligations of the Collateral Agent.




          (b) If, in connection with any proposed change, waiver, discharge or termination of or to any
of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the
first proviso to Section 13.12(a), the consent of the Required Lenders is obtained but the consent
of one or more of such other Lenders whose consent is required is not obtained, then the Borrower
shall have the right, so long as all non-consenting Lenders whose individual consent is required
are treated as described in either clause (A) or (B) below, to either (A) replace each such
non-consenting Lender or Lenders (or, at the option of the Borrower, if the respective Lender’s
consent is required with respect to less than all Tranches of Loans (or related Revolving
Loan Commitments), to replace only the Revolving Loan Commitments and/or Loans of the respective
non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with
one or more Replacement Lenders pursuant to Section 2.13 so long as at the time of such
replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or
termination or (B) terminate such non-consenting Lender’s Revolving Loan Commitment (if such
Lender’s consent is required as a result of its Revolving Loan Commitment) the outstanding Loans of
such Lender which gave rise to the need to obtain such Lender’s consent and/or cash collateralize
its applicable RL Percentage of the Letter of Credit of Outstandings, in accordance with Sections
4.02(b) and/or 5.01(b), provided that, unless the Revolving Loan Commitments which are
terminated and Loans which are repaid pursuant to preceding clause (B) are immediately replaced in
full at such time through the addition of new Lenders or the increase of the Revolving Loan
Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically
consent thereto), then in the case of any action pursuant to preceding clause (B), the Required
Lenders (determined after giving effect to the proposed action) shall specifically consent thereto,
provided, further, that the



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Borrower shall not have the right to replace a Lender, terminate its Revolving Loan Commitment
or repay its Loans solely as a result of the exercise of such Lender’s rights (and the withholding
of any required consent by such Lender) pursuant to the second proviso to Section 13.12(a).




          13.13. Survival. All indemnities set forth herein including, without limitation, in Sections
2.10, 2.11, 3.06, 5.04, 12.06 and 13.01 shall survive the execution, delivery and termination of
this Agreement and the Notes and the making and repayment of the Obligations.




          13.14. Domicile of Loans. Each Lender may transfer and carry its Loans at, to or for the
account of any office, Subsidiary or Affiliate of such Lender. Notwithstanding anything to the
contrary contained herein, to the extent that a transfer of Loans pursuant to this Section 13.14
would, at the time of such transfer, result in increased costs under Section 2.10, 2.11, 3.06 or
5.04 from those being charged by the respective Lender prior to such transfer, then the Borrower
shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay
any other increased costs of the type described above resulting from changes after the date of the
respective transfer).




          13.15. Register. The Borrower hereby designates the Administrative Agent to serve as its
agent, solely for purposes of this Section 13.15, to maintain a register (the “Register”)
on which it will record the Revolving Loan Commitments from time to time of each of the Lenders,
the Loans made by each of the Lenders and each repayment in respect of the principal amount of the
Loans of each Lender. Failure to make any such recordation, or any error in such recordation,
shall not affect the Borrower’s obligations in respect of such Loans. With respect to any Lender,
the transfer of the Revolving Loan Commitments of such Lender and the rights to the principal of,
and interest on, any Loan made pursuant to such Revolving Loan Commitments shall not be effective
until such transfer is recorded on the Register maintained by the Administrative Agent with respect
to ownership of such Revolving Loan Commitments and Loans and prior to such recordation all amounts
owing to the transferor with respect to such Revolving Loan Commitments and Loans shall remain
owing to the transferor. The registration of assignment or Revolving Loan transfer of all or part
of any Revolving Loan Commitments and Loans shall be recorded by the Administrative Agent on the
Register only upon the acceptance by the Administrative Agent of a properly executed and delivered
Assignment and Assumption Agreement pursuant to Section 13.04(b). Coincident with the delivery of
such an Assignment and Assumption Agreement to the Administrative Agent for acceptance and
registration of assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Lender shall surrender the Note (if any) evidencing such
Loan, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to
the assigning or transferor Lender and/or the new Lender at the request of any such Lender. The
Borrower agrees to indemnify the Administrative Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be imposed on, asserted against or incurred
by the Administrative Agent in performing its duties under this Section 13.15.




          13.16. Confidentiality. (a) Subject to the provisions of clause (b) of this Section 13.16,
each Lender agrees that it will use its reasonable efforts not to disclose without the prior
consent of Holdings (other than to its employees, auditors, advisors or counsel or to



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another Lender if such Lender or such Lender’s holding or parent company in its sole discretion
determines that any such party should have access to such information, provided such Persons shall
be subject to the provisions of this Section 13.16 to the same extent as such Lender) any
information with respect to Holdings or any of its Subsidiaries which is now or in the future
furnished pursuant to this Agreement or any other Credit Document, provided that any Lender
may disclose any such information (i) as has become generally available to the public other than by
virtue of a breach of this Section 13.16(a) by the respective Lender, (ii) as may be required or
appropriate in any report, statement or testimony submitted to any municipal, state or Federal
regulatory body having or claiming to have jurisdiction over such Lender or to the Federal Reserve
Board or the Federal Deposit Insurance Corporation or similar organizations (whether in the United
States or elsewhere) or their successors, (iii) as may be required or appropriate in respect to any
summons or subpoena or in connection with any litigation, (iv) in order to comply with any law,
order, regulation or ruling applicable to such Lender, (v) to the Administrative Agent or the
Collateral Agent, (vi) to any direct or indirect contractual counterparty in any swap, hedge or
similar agreement (or to any such contractual counterparty’s professional advisor), so long as such
contractual counterparty (or such professional advisor) agrees to be bound by the provisions of
this Section 13.16 and (vii) to any prospective or actual transferee or participant in connection
with any contemplated transfer or participation of any of the Notes or Commitments or any interest
therein by such Lender, provided that such prospective transferee agrees to be bound by the
confidentiality provisions contained in this Section 13.16.




          (b) Each of Holdings and the Borrower hereby acknowledges and agrees that each Lender may
share with any of its affiliates, and such affiliates may share with such Lender, any information
related to Holdings or any of its Subsidiaries (including, without limitation, any non-public
customer information regarding the creditworthiness of Holdings and its Subsidiaries), provided
such Persons shall be subject to the provisions of this Section 13.16 to the same extent as such
Lender.




          13.17. Special Provisions Regarding Pledges of Equity Interests in, and Promissory Notes Owed by,
Persons Not Organized in the United States. The parties hereto acknowledge and agree that the
provisions of the various Security Documents executed and delivered by the Credit Parties require
that, among other things, all promissory notes executed by, and capital stock and other Equity
Interests in, various Persons owned by the respective Credit Party be pledged, and delivered for
pledge, pursuant to the Security Documents. The parties hereto further acknowledge and agree that
each Credit Party shall be required to take all actions under the laws of the jurisdiction in which
such Credit Party is organized to create and perfect all security interests granted pursuant to the
various Security Documents and to take all actions under the laws of the United States and any
State thereof to perfect the security interests in the capital stock and other Equity Interests of,
and promissory notes issued by, any Person organized under the laws of said jurisdictions (in each
case, to the extent said capital stock, other Equity Interests or promissory notes are owned by any
Credit Party). Except as provided in the immediately preceding sentence, to the extent any
Security Document requires or provides for the pledge of promissory notes issued by, or capital
stock or other Equity Interests in, any Person organized under the laws of a jurisdiction other
than those specified in the immediately preceding sentence, it is acknowledged that, as of the
Initial Borrowing Date, no actions have been required to be taken to perfect, under local law
of the jurisdiction of the Person who issued



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the respective promissory notes or whose capital stock
or other Equity Interests are pledged, under the Security Documents. The Borrower hereby agrees
that, following any request by the Administrative Agent or the Required Lenders to do so, the
Borrower will, and will cause its Subsidiaries to, take such actions (including, without
limitation, the execution of Additional Security Documents, the making of any filings and the
delivery of appropriate legal opinions) under the local law of any jurisdiction with respect to
which such actions have not already been taken as are determined by the Administrative Agent or the
Required Lenders to be necessary or desirable in order to fully perfect, preserve or protect the
security interests granted pursuant to the various Security Documents under the laws of such
jurisdictions. If requested to do so pursuant to this Section 13.17, all such actions shall be
taken in accordance with the provisions of this Section 13.17 and Section 9.12 and within the time
periods set forth therein. All conditions and representations contained in this Agreement and the
other Credit Documents shall be deemed modified to the extent necessary to effect the foregoing and
so that same are not violated by reason of the failure to take actions under local law (but only
with respect to capital stock of, other Equity Interests in, and promissory notes issued by,
Persons organized under laws of jurisdictions other than the United States and any State thereof)
not required to be taken in accordance with the provisions of this Section 13.17, provided
that to the extent any representation or warranty would not be true because the foregoing actions
were not taken, the respective representation of warranties shall be required to be true and
correct in all material respects at such time as the respective action is required to be taken in
accordance with the foregoing provisions of Section 9.12 and this Section 13.17.




          13.18. Patriot Act. Each Lender subject to the USA PATRIOT ACT (Title 111 of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”) hereby notifies Holdings and the Borrower that
pursuant to the requirements of the Act, it is required to obtain, verify and record information
that identifies Holdings, the Borrower and the other Credit Parties and other information that will
allow such Lender to identify Holdings, the Borrower and the other Credit Parties in accordance
with the Act.




          13.19. Post-Closing Actions. Notwithstanding anything to the contrary contained in this
Agreement or the other Credit Documents, the parties hereto acknowledge and agree that:




          (a) UCC Filings; Filings with respect to Intellectual Property; etc. (i) Holdings
and its Subsidiaries were not required to have filed (or cause to have filed) on or prior to the
Initial Borrowing Date Financing Statements (Form UCC-1) or any filings with the United States
Patent and Trademark Office or the United States Copyright Office necessary to perfect the security
interest purported to be created by the Security Agreement or the Pledge Agreement, as applicable.
Not later than the fifth day (or such later date as may be agreed by the Administrative Agent)
after the Initial Borrowing Date, Holdings and its Subsidiaries shall have filed (or cause to have
filed) all of such Financing Statements (Form UCC-1) and any filings with the United States Patent
and Trademark Office or the United States Copyright Office necessary to perfect the security
interest purported to be created by the Security Agreement or the Pledge Agreement, as the case may
be.




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          (b) Real Estate. Holdings and its Subsidiaries shall be required to take the actions
specified in Part A of Schedule XII as promptly as practicable, and in any event within the time
periods set forth in Part A of said Schedule XII. The provisions of Part A of said Schedule XII
shall be deemed incorporated by reference herein as fully as if set forth herein in its entirety.




          (c) Cash Management Control Agreements. Within 45 days or such later date the
Administrative Agent agrees to, following the Initial Borrowing Date, (i) the applicable Credit
Agreement Parties, the Collateral Agent and the applicable Collection Banks shall have entered into
one or more Cash Management Control Agreements pursuant to Section 5.03 with respect to each
Collection Account listed on Schedule III, (ii) the applicable Credit Agreement Parties, the
Collateral Agent and the applicable banks shall have entered into one or more Cash Management
Control Agreements with respect to each other Deposit Account (other than the Excluded Deposit
Accounts) and (iii) the Borrower, the Collateral Agent and the applicable bank shall have entered
into a Cash Management Control Agreement with respect to the Core Concentration Account.




          (d) Other Actions. Holdings and its Subsidiaries shall be required to take the
actions specified in Parts B and C of Schedule XII as promptly as practicable, and in any event
within the time periods set forth in Parts B and C of said Schedule XII. The provisions of Parts B
and C of said Schedule XII shall be deemed incorporated by reference herein as fully as if set
forth herein in its entirety.




          All conditions precedent and representations contained in this Agreement and the other Credit
Documents shall be deemed modified to the extent necessary to effect the foregoing (and to permit
the taking of the actions described above within the time periods required above, rather than as
elsewhere provided in the Credit Documents), provided that (x) to the extent any
representation and warranty would not be true because the foregoing actions were not taken on the
Initial Borrowing Date, the respective representation and warranty shall be required to be true and
correct in all material respects at the time the respective action is taken (or was required to be
taken) in accordance with the foregoing provisions of this Section 13.19 and (y) all
representations and warranties relating to the Security Documents shall be required to be true
immediately after the actions required to be taken by Section 13.19 have been taken (or were
required to be taken). The acceptance of the benefits of each Credit Event shall constitute a
representation, warranty and covenant by the Borrower to each of the Lenders that the actions
required pursuant to this Section 13.19 will be, or have been, taken within the relevant time
periods referred to in this Section 13.19 and that, at such time, all representations and
warranties contained in this Agreement and the other Credit Documents shall then be true and
correct without any modification pursuant to this Section 13.19, and the parties hereto acknowledge
and agree that the failure to take any of the actions required above, within the relevant time
periods required above, shall give rise to an immediate Event of Default pursuant to this
Agreement.




          SECTION 14. Credit Agreement Party Guaranty.




          14.01. The Guaranty. In order to induce the Lenders to enter into this Agreement and to
extend credit hereunder, and in recognition of the direct benefits to be received



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by each Credit
Agreement Party from the proceeds of the Loans, the issuance of the Letters of Credit, each Credit
Agreement Party Guarantor hereby agrees with the Lenders as follows: each Credit Agreement Party
Guarantor hereby unconditionally and irrevocably guarantees, as primary obligor and not merely as
surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of
any and all of its Guaranteed Obligations to the Guaranteed Creditors. If any or all of the
Guaranteed Obligations of any Credit Agreement Party Guarantor to the Guaranteed Creditors becomes
due and payable hereunder, each Credit Agreement Party Guarantor unconditionally promises to pay
such indebtedness to the Guaranteed Creditors, or order, on demand, together with any and all
expenses which may be incurred by the Guaranteed Creditors in collecting any of the Guaranteed
Obligations. This Credit Agreement Party Guaranty is a guaranty of payment and not of collection.
This Credit Agreement Party Guaranty is a continuing one and all liabilities to which it applies or
may apply under the terms hereof shall be conclusively presumed to have been created in reliance
hereon. If claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount
or amounts received in payment or on account of any of the Guaranteed Obligations and any of the
aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order
of any court or administrative body having jurisdiction over such payee or any of its property or
(ii) any settlement or compromise of any such claim effected by such payee with any such claimant
(including the Borrower), then and in such event the respective Credit Agreement Party Guarantor
agrees that any such judgment, decree, order, settlement or compromise shall be binding upon such
Credit Agreement Party Guarantor, notwithstanding any revocation of this Credit Agreement Party
Guaranty or any other instrument evidencing any liability of the Borrower, and each Credit
Agreement Party Guarantor shall be and remain liable to the aforesaid payees hereunder for the
amount so repaid or recovered to the same extent as if such amount had never originally been
received by any such payee.




          14.02. Bankruptcy. Additionally, each Credit Agreement Party Guarantor unconditionally and
irrevocably guarantees the payment of any and all of the Guaranteed Obligations to the Guaranteed
Creditors whether or not due or payable by the Borrower upon the occurrence of any of the events
specified in Section 11.05, and unconditionally promises to pay such indebtedness to the Guaranteed
Creditors, or order, on demand.




          14.03. Nature of Liability. The liability of each Credit Agreement Party Guarantor hereunder
is exclusive and independent of any security for or other guaranty of the Guaranteed Obligations
whether executed by such Credit Agreement Party Guarantor, any other guarantor or by any other
party, and the liability of each Credit Agreement Party Guarantor hereunder is not affected or
impaired by (a) any direction as to application of payment by the Borrower or any other party, or
(b) any other continuing or other guaranty, undertaking or maximum liability of a guarantor or of
any other party as to the Guaranteed Obligations, or (c) any payment on or in reduction of any such
other guaranty or undertaking, or (d) any dissolution, termination or increase, decrease or change
in personnel by the Borrower, or (e) any payment made to the Guaranteed Creditors on the Guaranteed
Obligations which any such Guaranteed Creditor repays to the Borrower pursuant to court order in
any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and each
Credit Agreement Party Guarantor waives any right to the deferral or modification of its obligations hereunder by
reason of any such proceeding, or (f) any action or inaction of the type described in Section
14.05, or (g)



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the lack of validity or enforceability of any Credit Document or any other instrument
relating thereto.




          14.04. Independent Obligation. No invalidity, irregularity or unenforceability of all or any
part of the Guaranteed Obligations or of any security therefor shall affect, impair or be a defense
to this Credit Agreement Party Guaranty, and this Credit Agreement Party Guaranty shall be primary,
absolute and unconditional notwithstanding the occurrence of any event or the existence of any
other circumstances which might constitute a legal or equitable discharge of, or a defense
available to, a surety or guarantor except indefeasible payment in full in cash of the Guaranteed
Obligations. The obligations of each Credit Agreement Party Guarantor hereunder are independent of
the obligations of the Borrower, any other guarantor or any other party and a separate action or
actions may be brought and prosecuted against any Credit Agreement Party Guarantor whether or not
action is brought against the Borrower, any other guarantor or any other party and whether or not
the Borrower, any other guarantor or any other party be joined in any such action or actions. Each
Credit Agreement Party Guarantor waives, to the full extent permitted by law, the benefit of any
statute of limitations affecting its liability hereunder or the enforcement thereof. Any payment
by the Borrower or other circumstance that operates to toll any statute of limitations as to the
Borrower shall operate to toll the statute of limitations as to the relevant Credit Agreement Party
Guarantor.




          14.05. Authorization. Each Credit Agreement Party Guarantor authorizes the Guaranteed
Creditors without notice or demand (except as shall be required by applicable statute and cannot be
waived), and without affecting or impairing its liability hereunder, from time to time to:





     (a) change the manner, place or terms of payment of, and/or change or extend the time
of payment of, renew, increase, accelerate or alter, any of the Guaranteed Obligations
(including any increase or decrease in the rate of interest thereon), any security therefor,
or any liability incurred directly or indirectly in respect thereof, and this Credit
Agreement Party Guaranty shall apply to the Guaranteed Obligations as so changed, extended,
renewed, increased or altered;




     (b) take and hold security for the payment of the Guaranteed Obligations and sell,
exchange, release, impair, surrender, realize upon or otherwise deal with in any manner and
in any order any property by whomsoever at any time pledged or mortgaged to secure, or
howsoever securing, the Guaranteed Obligations or any liabilities (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof, and/or any offset
there against;




     (c) exercise or refrain from exercising any rights against the Borrower or others or
otherwise act or refrain from acting;




     (d) release or substitute any one or more endorsers, guarantors, the Borrower or other
obligors;




     (e) settle or compromise any of the Guaranteed Obligations, any security therefor or
any liability (including any of those hereunder) incurred directly or indirectly



-188-









 







in respect
thereof or hereof, and may subordinate the payment of all or any part thereof to the payment
of any liability (whether due or not) of the Borrower to its creditors other than the
Guaranteed Creditors;




     (f) apply any sums by whomsoever paid or howsoever realized to any liability or
liabilities of the Borrower to the Guaranteed Creditors regardless of what liability or
liabilities of the Borrower remain unpaid;




     (g) consent to or waive any breach of, or any act, omission or default under, this
Agreement, any other Credit Document, or any of the instruments or agreements referred to
herein or therein, or otherwise amend, modify or supplement this Agreement, any other Credit
Document, or any of such other instruments or agreements; and/or




     (h) take any other action that would, under otherwise applicable principles of common
law, give rise to a legal or equitable discharge of, or a defense available to, such Credit
Agreement Party Guarantor from its liabilities under this Credit Agreement Party Guarantor
Guaranty.



          14.06. Reliance. It is not necessary for the Guaranteed Creditors to inquire into the
capacity or powers of the Borrower or the officers, directors, partners or agents acting or
purporting to act on their behalf, and any Guaranteed Obligations made or created in reliance upon
the professed exercise of such powers shall be guaranteed hereunder.




          14.07. Subordination. Any of the indebtedness of the Borrower now or hereafter owing to any
Credit Agreement Party Guarantor is hereby subordinated to the Guaranteed Obligations of the
Borrower owing to the Guaranteed Creditors; and if the Administrative Agent so requests at a time
when an Event of Default exists, all such indebtedness of the Borrower to such Credit Agreement
Party Guarantor shall be collected, enforced and received by such Credit Agreement Party Guarantor
in trust for the benefit of the Guaranteed Creditors and be paid over to the Administrative Agent
on behalf of the Guaranteed Creditors on account of the Guaranteed Obligations of the Borrower to
the Guaranteed Creditors, but without affecting or impairing in any manner the liability of any
Credit Agreement Party Guarantor under the other provisions of this Credit Agreement Party
Guarantor Guaranty. Prior to the transfer by any Credit Agreement Party Guarantor of any note or
negotiable instrument evidencing any of the indebtedness of the Borrower to such Credit Agreement
Party Guarantor, such Credit Agreement Party Guarantor shall mark such note or negotiable
instrument with a legend that the same is subject to this subordination. Without limiting the
generality of the foregoing, each Credit Agreement Party Guarantor hereby agrees with the
Guaranteed Creditors that it will not exercise any right of subrogation which it may at any time
otherwise have as a result of this Credit Agreement Party Guarantor Guaranty (whether contractual,
under Section 509 of the Bankruptcy Code or otherwise) until all Guaranteed Obligations have been
irrevocably paid in full in cash.




          14.08. Waiver. (a) Each Credit Agreement Party Guarantor waives any right (except as shall
be required by applicable statute and cannot be waived) to require any Guaranteed Creditor to (i)
proceed against any the Borrower, any other guarantor or any other
party, (ii) proceed against or exhaust any security held from the Borrower, any other
guarantor or



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any other party or (iii) pursue any other remedy in any Guaranteed Creditor’s power
whatsoever. Each Credit Agreement Party Guarantor waives any defense based on or arising out of
any defense of the Borrower, any other guarantor or any other party, other than indefeasible
payment in full in cash of the Guaranteed Obligations, based on or arising out of the disability of
the Borrower, any other guarantor or any other party, or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause of the liability of
the Borrower other than indefeasible payment in full in cash of the Guaranteed Obligations. The
Guaranteed Creditors may, at their election, foreclose on any security held by the Administrative
Agent, the Collateral Agent or any other Guaranteed Creditor by one or more judicial or nonjudicial
sales, whether or not every aspect of any such sale is commercially reasonable (to the extent such
sale is permitted by applicable law), or exercise any other right or remedy the Guaranteed
Creditors may have against the Borrower or any other party, or any security, without affecting or
impairing in any way the liability of any Credit Agreement Party Guarantor hereunder except to the
extent the Guaranteed Obligations have been indefeasibly paid in full in cash. Each Credit
Agreement Party Guarantor waives any defense arising out of any such election by the Guaranteed
Creditors, even though such election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of such Credit Agreement Party Guarantor against the Borrower
or any other party or any security.




          (b) Each Credit Agreement Party Guarantor waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance, notices of protest,
notices of dishonor, notices of acceptance of this Credit Agreement Party Guarantor Guaranty, and
notices of the existence, creation or incurring of new or additional Guaranteed Obligations. Each
Credit Agreement Party Guarantor assumes all responsibility for being and keeping itself informed
of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks
which such Credit Agreement Party Guarantor assumes and incurs hereunder, and agrees that the
Guaranteed Creditors shall have no duty to advise any Credit Agreement Party Guarantor of
information known to them regarding such circumstances or risks.




          (c) Until such time as the Guaranteed Obligations have been paid in full in cash, each Credit
Agreement Party Guarantor hereby waives all rights of subrogation which it may at any time
otherwise have as a result of this Credit Agreement Party Guarantor Guaranty (whether contractual,
under Section 509 of the Bankruptcy Code, or otherwise) to the claims of the Guaranteed Creditors
against the Borrower or any other guarantor of the Guaranteed Obligations and all contractual,
statutory or common law rights of reimbursement, contribution or indemnity from the Borrower or any
other guarantor which it may at any time otherwise have as a result of this Credit Agreement Party
Guarantor Guaranty.




          (d) Each Credit Agreement Party Guarantor hereby acknowledges and affirms that it understands
that to the extent the Guaranteed Obligations are secured by Real Property located in California,
such Credit Agreement Party Guarantor shall be liable for the full amount of the liability
hereunder notwithstanding the foreclosure on such Real Property by trustee sale or any other reason
impairing such Credit Agreement Party Guarantor’s or any Guaranteed
Creditor’s right to proceed against the Borrower or any other guarantor of the Guaranteed



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Obligations. In accordance with Section 2856 of the California Code of Civil Procedure, each
Credit Agreement Party Guarantor hereby waives:





     (i) all rights of subrogation, reimbursement, indemnification, and contribution and any
other rights and defenses that are or may become available to such Credit Agreement Party
Guarantor by reason of Sections 2787 to 2855, inclusive, 2899 and 3433 of the California
Code of Civil Procedure;




     (ii) all rights and defenses that such Credit Agreement Party Guarantor may have
because the Guaranteed Obligations are secured by Real Property located in California,
meaning, among other things, that: (A) the Guaranteed Creditors may collect from such
Credit Agreement Party Guarantor without first foreclosing on any real or personal property
collateral pledged by any Credit Party, and (B) if the Guaranteed Creditors foreclose on any
Real Property collateral pledged by any Credit Party, (1) the amount of the Guaranteed
Obligations may be reduced only by the price for which that collateral is sold at the
foreclosure sale, even if the collateral is worth more than the sale price, and (2) the
Guaranteed Creditors may collect from such Credit Agreement Party Guarantor even if the
Guaranteed Creditors, by foreclosing on the Real Property collateral, have destroyed any
right such Credit Agreement Party Guarantor may have to collect from the Borrower, it being
understood that this is an unconditional and irrevocable waiver of any rights and defenses
such Credit Agreement Party Guarantor may have because the Guaranteed Obligations are
secured by Real Property (including, without limitation, any rights or defenses based upon
Section 580a, 580d or 726 of the California Code of Civil Procedure); and




     (iii) all rights and defenses arising out of an election of remedies by the Guaranteed
Creditors, even though that election of remedies, such as a nonjudicial foreclosure with
respect to security for the Guaranteed Obligations, has destroyed such Credit Agreement
Party Guarantor’s rights of subrogation and reimbursement against the Borrower by the
operation of Section 580d of the California Code of Civil Procedure or otherwise.



          (e) Each Credit Agreement Party Guarantor warrants and agrees that each of the waivers set
forth above is made with full knowledge of its significance and consequences and that if any of
such waivers are determined to be contrary to any applicable law of public policy, such waivers
shall be effective only to the maximum extent permitted by law.




          14.09. Payments. All payments made by a Credit Agreement Party Guarantor pursuant to this
Section 14 shall be made in the respective Applicable Currency in which the Guaranteed Obligations
are then due and payable (giving effect, in the circumstances contemplated by Section 2.14, to any
conversion occurring pursuant thereto). All payments made by a Credit Agreement Party Guarantor
pursuant to this Section 14 will be made without setoff, counterclaim or other defense, and shall
be subject to the provisions of Sections 5.03, 5.04 and 13.23.




*      *      *




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          IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute
and deliver this Agreement as of the date first above written.




Address:




	 	 	 	 	 
	 	DHM HOLDING COMPANY, INC.,

      as a Guarantor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DOLE HOLDING COMPANY, LLC,

      as a Guarantor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DOLE FOOD COMPANY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH,

      Individually and as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DEUTSCHE BANK SECURITIES INC.,

      as Lead Arranger

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



S-1









 






	 	 	 	 	 
	 	SIGNATURE PAGE TO THE CREDIT AGREEMENT DATED AS OF
APRIL 12, 2006, AMONG DHM HOLDING COMPANY, INC., DOLE
HOLDING COMPANY, LLC, DOLE FOOD COMPANY, INC., THE
LENDERS PARTY HERETO FROM TIME TO TIME, DEUTSCHE BANK
AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT, AND
DEUTSCHE BANK SECURITIES INC., AS LEAD ARRANGER




NAME OF INSTITUTION:

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




S-2











 





EXHIBIT B TO AMENDMENT NO. 1




 


 



AMENDED AND RESTATED INTERCREDITOR AGREEMENT




dated as of March 18, 2009




among




DHM HOLDING COMPANY, INC.,

DOLE HOLDING COMPANY, LLC,

DOLE FOOD COMPANY, INC.,

the other GRANTORS from time to time party hereto,




DEUTSCHE BANK AG NEW YORK BRANCH,

as Collateral Agent

under the ABL Credit Agreement,




DEUTSCHE BANK AG NEW YORK BRANCH,

as Collateral Agent

under the Term Credit Agreement




and




U.S. Bank National Association, as Collateral Agent

under the Notes Security Documents




 

 




 









 








Table of Contents




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	SECTION 1.
	 	DEFINITIONS	 	 	2
	 
	 	 	 	 	 	 
	1.1.
	 	Defined Terms	 	 	2
	1.2.
	 	Terms Generally	 	 	23
	 
	 	 	 	 	 	 
	SECTION 2.
	 	TL PRIORITY COLLATERAL	 	 	23
	 
	 	 	 	 	 	 
	2.1.
	 	Lien Priorities	 	 	23
	2.2.
	 	Exercise of Remedies	 	 	26
	2.3.
	 	Payments Over	 	 	31
	2.4.
	 	Other Agreements	 	 	31
	2.5.
	 	Insolvency or Liquidation Proceedings	 	 	43
	2.6.
	 	Reliance; Waivers; Etc.	 	 	48
	 
	 	 	 	 	 	 
	SECTION 3.
	 	ABL PRIORITY COLLATERAL	 	 	51
	 
	 	 	 	 	 	 
	3.1.
	 	Lien Priorities	 	 	51
	3.2.
	 	Exercise of Remedies	 	 	53
	3.3.
	 	Payments Over	 	 	58
	3.4.
	 	Other Agreements	 	 	59
	3.5.
	 	Insolvency or Liquidation Proceedings	 	 	71
	3.6.
	 	Reliance; Waivers; Etc.	 	 	75
	 
	 	 	 	 	 	 
	SECTION 4.
	 	COOPERATION WITH RESPECT TO ABL PRIORITY COLLATERAL	 	 	78
	 
	 	 	 	 	 	 
	4.1.
	 	Consent to License to Use Intellectual Property	 	 	78
	4.2.
	 	Access to Information	 	 	79
	4.3.
	 	Access to Property to Process and Sell Inventory	 	 	79
	4.4.
	 	Term Collateral Agent Assurances	 	 	82
	4.5.
	 	Grantor Consent	 	 	82
	 
	 	 	 	 	 	 
	SECTION 5.
	 	APPLICATION OF PROCEEDS	 	 	82
	 
	 	 	 	 	 	 
	5.1.
	 	Application of Proceeds in Distributions by the Term Collateral Agent	 	 	82
	5.2.
	 	Application of Proceeds in Distributions by the ABL Collateral Agent	 	 	84
	 
	 	 	 	 	 	 
	SECTION 6.
	 	MISCELLANEOUS	 	 	85
	 
	 	 	 	 	 	 
	6.1.
	 	Conflicts	 	 	86
	6.2.
	 	Effectiveness; Continuing Nature of This Agreement; Severability	 	 	86
	6.3.
	 	Amendments; Waivers	 	 	86
	6.4.
	 	Information Concerning Financial Condition of Holdings and Its Subsidiaries	 	 	86
	6.5.
	 	Submission to Jurisdiction; Waivers	 	 	87
	6.6.
	 	Notices	 	 	88
	6.7.
	 	Further Assurances	 	 	88






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	 	 	 	 	Page
	 
	 	 	 	 	 	 
	6.8.
	 	APPLICABLE LAW	 	 	89
	6.9.
	 	Binding on Successors and Assigns	 	 	89
	6.10.
	 	Specific Performance	 	 	89
	6.11.
	 	Headings	 	 	89
	6.12.
	 	Counterparts	 	 	89
	6.13.
	 	Authorization; No Conflict	 	 	89
	6.14.
	 	No Third Party Beneficiaries	 	 	90
	6.15.
	 	Provisions Solely to Define Relative Rights	 	 	90
	6.16.
	 	Additional Grantors	 	 	90
	6.17.
	 	Avoidance Issues	 	 	91
	6.18.
	 	Intercreditor Agreement	 	 	91
	6.19.
	 	Foreign Collateral	 	 	91
	6.20.
	 	Cash Collateral (Term Credit Agreement)	 	 	91
	6.21.
	 	Credit-Linked Deposits	 	 	92





Exhibit A            Form of Intercreditor Agreement Joinder





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          This AMENDED AND RESTATED INTERCREDITOR AGREEMENT is dated as of March 18, 2009 and is by and
among DHM HOLDING COMPANY, INC., a Delaware corporation (“Holdings”), DOLE HOLDING COMPANY,
LLC, a Delaware limited liability company (“Intermediate Holdco”), DOLE FOOD COMPANY, INC.,
a Delaware corporation (the “Company”), the other GRANTORS (as defined in Section 1.1) from
time to time party hereto, DEUTSCHE BANK AG NEW YORK BRANCH (in its individual capacity, and any
successor corporation thereto by merger, consolidation or otherwise, “DBAG”), as ABL
Collateral Agent (as defined below), DBAG, as Term Collateral Agent (as defined below) and U.S.
Bank National Association (in its individual capacity, and any successor corporation thereto by
merger, consolidation or otherwise, “U.S. Bank”), as Notes Collateral Agent (as defined
below).




RECITALS:




          WHEREAS, certain of the Grantors have entered into a Credit Agreement, dated as of April 12,
2006 (as amended, supplemented, amended and restated or otherwise modified and in effect from time
to time, the “ABL Credit Agreement”), among Holdings, Intermediate Holdco, the Company, as
borrower, the lenders from time to time party thereto (the “ABL Lenders”), DBAG, as
administrative agent (in such capacity and together with its successors and assigns in such
capacity, the “ABL Administrative Agent”), DBAG, as collateral agent (in such capacity and
together with its successors and assigns in such capacity, the “ABL Collateral Agent”),
Banc of America Securities LLC (in its individual capacity, and any successor corporation thereto
by merger, consolidation or otherwise, “BAS”), as syndication agent, Deutsche Bank
Securities Inc. (in its individual capacity, and any successor corporation thereto by merger,
consolidation or otherwise, “DBSI”), as lead arranger and DBSI and BAS, as book running
managers;




          WHEREAS, pursuant to the various ABL Credit Documents, Grantors have provided guarantees and
security for the ABL Obligations;




          WHEREAS, certain of the Grantors have entered into a Credit Agreement, dated as of April 12,
2006 (as amended, supplemented, amended and restated or otherwise modified and in effect from time
to time, the “Term Credit Agreement” and, together with the ABL Credit Agreement, the
“Credit Agreements”), among Holdings, Intermediate Holdco, the Company, as a borrower (in
such capacity, the “U.S. Term Borrower”) and Solvest, Ltd., a company organized under the
laws of Bermuda, as a borrower (in such capacity the “Bermuda Term Borrower” and, together
with the U.S. Term Borrower, the “Term Borrowers”), the lenders from time to time party
thereto (the “Term Lenders” and, together with the ABL Lenders, the “Lenders”),
DBAG, as administrative agent (in such capacity and together with its successors and assigns in
such capacity, the “Term Administrative Agent” and, together with the ABL Administrative
Agent, the “Administrative Agents”) and as deposit bank, DBAG, as collateral agent (in such
capacity and together with its successors and assigns in such capacity, the “Term Collateral
Agent”), DBSI, as lead arranger and sole book runner, BAS, as syndication agent and The Bank of
Nova Scotia (in its individual capacity, and any successor corporation thereto by merger,
consolidation or otherwise, “Scotia Capital”), as syndication agent;




 









 








          WHEREAS, pursuant to the various Term Documents, Grantors have provided guarantees and
security for the Term Obligations;




          WHEREAS, the Company is party to an Indenture dated as of March 18, 2009 (as amended,
restated, supplemented, waived, Refinanced or otherwise modified from time to time, the
“Indenture”), among the Company, the guarantors identified therein and U.S. Bank, as
trustee (in such capacity and together with its successors and assigns in such capacity, the
“Trustee”), and as collateral agent for the holders of Notes Obligations (in such capacity
and together with its successors and assigns in such capacity, the “Notes Collateral Agent”
and, together with the ABL Collateral Agent and the Term Collateral Agent, the “Collateral
Agents” and together with the Administrative Agents and the Trustee, the “Agents”);




          WHEREAS, pursuant to the various Notes Documents, Grantors have provided guarantees and
security for the Notes Obligations;




          WHEREAS, the Company and the other Grantors have secured the ABL Obligations under the ABL
Credit Agreement and any other ABL Documents (including any Permitted Refinancing thereof) with a
First Priority Lien on the ABL Priority Collateral and a Second Priority Lien on the TL Priority
Collateral;




          WHEREAS, the Company and the other Grantors have secured the Term Obligations under the Term
Credit Agreement and any other Term Documents (including any Permitted Refinancing thereof) with a
First Priority Lien on the TL Priority Collateral and a Second Priority Lien on the ABL Priority
Collateral; and




          WHEREAS, the Company and the other Grantors intend to secure the Notes Obligations under the
Indenture and any other Notes Documents with a Third Priority Lien on the TL Priority Collateral
and a Third Priority Lien on the ABL Priority Collateral.




          NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:




SECTION 15. Definitions.




           15.01. Defined Terms. The following terms when used in this Agreement, including its
preamble and recitals, shall have the following meanings:




          “ABL Administrative Agent” shall have the meaning set forth in the recitals hereto.




          “ABL Collateral Agent” shall have the meaning set forth in the recitals hereto and
includes any New ABL Agent to the extent set forth in Section 3.4(g).




          “ABL Collateral Priority Lien” shall have the meaning set forth in Section 3.4(a)(iv).




          “ABL Credit Agreement” shall have the meaning set forth in the recitals hereto.





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          “ABL Documents” shall mean the ABL Credit Agreement and the Credit Documents (as
defined in the ABL Credit Agreement) and each of the other agreements, documents and instruments
providing for or evidencing any ABL Obligations (including any Permitted Refinancing of any ABL
Obligations), and any other document or instrument executed or delivered at any time in connection
with any ABL Obligations (including any Permitted Refinancing of any ABL Obligations), together
with any amendments, replacements, modifications, extensions, renewals or supplements to, or
restatements of, any of the foregoing.




          “ABL Lenders” shall have the meaning set forth in the recitals hereto.




          “ABL Obligations” shall mean all obligations (including guaranty obligation) of every
nature of each Grantor from time to time owed to the ABL Secured Parties or any of them, under any
ABL Document (including any ABL Document in respect of a Permitted Refinancing of any ABL
Obligations), whether for principal, premium, interest (including interest which, but for the
filing of a petition in bankruptcy with respect to Holdings or any of its Subsidiaries, would have
accrued on any ABL Obligation (including any Permitted Refinancing of any ABL Obligations), whether
or not a claim is allowed against such Person for such interest in the related bankruptcy
proceeding), reimbursement of amounts drawn under (and obligations to cash collateralize) letters
of credit and bank guaranties, fees, expenses, indemnification or otherwise.




          “ABL Permitted Liens” shall mean the “Permitted Liens” under, and as defined in, the
ABL Credit Agreement as originally in effect.




          “ABL Priority Collateral” shall mean, subject to the relevant provisions of Sections
6.21 and 6.22, all interests of each Grantor in the following, in each case whether now owned or
existing or hereafter acquired or arising and wherever located, including (1) all rights of each
Grantor to receive moneys due and to become due under or pursuant to the following, (2) all rights
of each Grantor to receive return of any premiums for or proceeds of any insurance, indemnity,
warranty or guaranty with respect to the following or to receive condemnation proceeds with respect
to the following, (3) all claims of each Grantor for damages arising out of or for breach of or
default under any of the following, and (4) all rights of each Grantor to terminate, amend,
supplement, modify or waive performance under any of the following, to perform thereunder and to
compel performance and otherwise exercise all remedies thereunder:




     (i) all Accounts and Receivables, but for purposes of this clause (i) excluding rights
to payment for any property which specifically constitutes TL Priority Collateral (and not
by virtue of clause (xi) of the definition thereof) which has been or is to be sold, leased,
licensed, assigned or otherwise disposed of;





     (ii) all Chattel Paper;




     (iii) all Deposit Accounts and all cash, checks, other negotiable instruments, funds
and other property held therein or credited thereto, and all Money (in each case, other than
the Asset Sale Proceeds Account, and all cash, checks, securities, financial assets or other
property held therein or credited thereto which constitute TL Priority Collateral and all
identifiable proceeds of any TL Priority Collateral);




     (iv) all Inventory;



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     (v) to the extent evidencing or governing any of the items referred to in the preceding
clauses (i) through (iv), all General Intangibles, Instruments (including, without
limitation, Promissory Notes) and Letter of Credit Rights; provided that to the
extent any of the foregoing also relates to TL Priority Collateral, only that portion
related to the items referred to in the preceding clauses (i) through (iv) as being included
in the ABL Priority Collateral shall be included in the ABL Priority Collateral;




     (vi) to the extent relating to any of the items referred to in the preceding clauses
(i) through (v), all Documents and Insurance; provided that to the extent any of the
foregoing also relates to TL Priority Collateral only that portion related to the items
referred to in the preceding clauses (i) through (v) as being included in the ABL Priority
Collateral shall be included in the ABL Priority Collateral;




     (vii) to the extent relating to any of the items referred to in the preceding clauses
(i) through (vi), all Supporting Obligations; provided that to the extent any of the
foregoing also relates to TL Priority Collateral only that portion related to the items
referred to in the preceding clauses (i) through (vi) as being included in the ABL Priority
Collateral shall be included in the ABL Priority Collateral;




     (viii) all books, Records, Receivables Records and Collateral Records relating to the
foregoing (including without limitation all books, databases, customer lists, engineer
drawings, Records, Receivables Records and Collateral Records, whether tangible or
electronic, which contain any information relating to any of the foregoing); and




     (ix) all Cash Proceeds, products, accessions, rents and profits of or in respect of any
of the foregoing (including without limitation, all insurance proceeds) and all collateral
security, guarantees and other Collateral Support given by any Person with respect to any of
the foregoing.


Notwithstanding anything to the contrary contained above or in the definition of the TL Priority
Collateral, to the extent proceeds of Collateral are identifiable proceeds received from the sale
or disposition of all or substantially all of the Capital Stock of any of the Domestic Subsidiaries
of Holdings which is a Grantor or all or substantially all of the assets of any such Domestic
Subsidiary, such proceeds shall constitute (1) first, in an amount equal to the net book value of
the Accounts (as described in clause (i) above, and excluding any Accounts to the extent excluded
pursuant to said clause (i)) and Inventory owned by such Domestic Subsidiary at the time of such
sale, ABL Priority Collateral and (2) second, to the extent in excess of the amounts described in
preceding clause (1), TL Priority Collateral.




          “ABL Priority Collateral Enforcement Actions” shall have the meaning set forth in
Section 4.3(a).




          “ABL Priority Collateral Lien” shall have the meaning set forth in Section 3.4(a).




          “ABL Priority Collateral Processing and Sale Period” shall have the meaning set forth
in Section 4.3(a).





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          “ABL Secured Parties” shall mean the lenders (including, in any event, each letter of
credit issuer and each swingline lender) and agents under the ABL Credit Agreement and shall
include all former lenders and agents under the ABL Credit Agreement to the extent that any ABL
Obligations owing to such Persons were incurred while such Persons were lenders or agents under the
ABL Credit Agreement and such ABL Obligations have not been paid or satisfied in full and all new
ABL Secured Parties to the extent set forth in Section 3.4(g).




          “ABL Security Agreement” shall mean the Security Agreement (as defined in the ABL
Credit Agreement).




          “ABL Security Documents” shall mean the ABL Security Agreement and the other Security
Documents (as defined in the ABL Credit Agreement) and any other agreement, document or instrument
pursuant to which a Lien is granted securing any ABL Obligations (including any Permitted
Refinancing of any ABL Obligations) or under which rights or remedies with respect to such Liens
are governed, together with any amendments, replacements, modifications, extensions, renewals or
supplements to, or restatements of, any of the foregoing.




          “ABL Standstill Period” shall have the meaning set forth in Section 2.2(a).




          “Account” shall mean any “account” as such term is defined in the UCC as in effect in
the State of New York on the date hereof, and in any event shall include but shall not be limited
to, all rights to payment of any monetary obligation, whether or not earned by performance, (i) for
property that has been or is to be sold, leased, licensed, assigned or otherwise disposed of, (ii)
for services rendered or to be rendered, (iii) for a policy of insurance issued or to be issued,
(iv) for a secondary obligation incurred or to be incurred, (v) for energy provided or to be
provided, (vi) for the use or hire of a vessel under a charter or other contract, (vii) arising out
of the use of a credit or charge card or information contained on or for use with the card, or
(viii) as winnings in a lottery or other game of chance operated or sponsored by a State,
governmental unit of a State, or person licensed or authorized to operate the game by a State or
governmental unit of a State. Without limiting the foregoing, the term “account” shall include all
Health-Care-Insurance Receivables.




          “Additional Junior Lien Agreement” shall mean any agreement covering any additional
indebtedness issued by the Company constituting secured obligations under the Notes Security
Documents (pursuant to a joinder agreement thereto), to the extent such secured indebtedness is
permitted to be incurred in accordance with the Indenture, the Term Credit Agreement and the ABL
Credit Agreement and the terms of such joinder agreement subject the agent and the holders of such
indebtedness to the terms of this Agreement.




          “Administrative Agents” shall have the meaning set forth in the recitals hereto.




          “Affiliate” shall mean, with respect to any Person, any other Person directly or
indirectly controlling (including but not limited to all directors and officers of such Person),
controlled by, or under direct or indirect common control with such Person. A Person shall be
deemed to control another Person if such Person possesses, directly or indirectly, the power (i) to
vote 10% or more of the securities having ordinary voting power for the election of directors (or
equivalent governing body) of such Person or (ii) to direct or cause the direction of the




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management and policies of such other Person, whether through the ownership of voting securities,
by contract or otherwise; provided, however, that neither any Agent nor any Lender
(nor any Affiliate thereof) shall be considered an Affiliate of Holdings or any Subsidiary thereof.




          “Agents” shall have the meaning set forth in the recitals hereto.




          “Agreement” shall mean this Amended and Restated Intercreditor Agreement as the same
may be amended, modified, restated and/or supplemented from time to time in accordance with its
terms.




          “Asset Sale Proceeds Account” shall mean one or more Deposit Accounts established by
the TL Collateral Agent into which there shall be deposited proceeds of sales or dispositions of TL
Priority Collateral (to the extent such proceeds constitute TL Priority Collateral).




          “Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy,”
as now and hereafter in effect, or any successor statute.




          “Bankruptcy Law” shall mean the Bankruptcy Code, and any similar federal or state or
non-U.S. law or statute for the supervision, administration or relief of debtors, including,
without limitation, bankruptcy or insolvency laws.




          “BAS” shall have the meaning set forth in the recitals hereto.




          “Bermuda Guaranteed Obligations” shall have the meaning set forth in the definition of
Term Obligations.




          “Bermuda Term Borrower” shall have the meaning set forth in the recitals hereto.




          “Business Day” shall mean any day except Saturday, Sunday and any day which shall be
in New York, New York, a legal holiday or a day on which banking institutions are authorized or
required by law or other government action to close.




          “Capital Lease” shall mean, as applied to any Person, any lease of any property
(whether real, person or mixed) by that Person as lessee that, in conformity with U.S. GAAP, is or
should be accounted for as a capital lease on the balance sheet of that Person.




          “Capital Stock” shall mean any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation), including without limitation,
partnership interests and membership interests, and any and all warrants, rights or options to
purchase or other arrangements or rights to acquire any of the foregoing.




          “Capitalized Lease Obligations” shall mean, with respect to any Person, all
obligations under Capital Leases of such Person, in each case taken at the amount thereof accounted
for as indebtedness in accordance with U.S. GAAP.




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          “Cash Proceeds” shall mean all proceeds of any Collateral received by any Grantor
consisting of cash and checks.




          “Chattel Paper” shall mean “chattel paper” as such term is defined in Article 9 of the
UCC, as in effect in the State of New York on the date hereof. Without limiting the foregoing, the
term “Chattel Paper” shall in any event include all “tangible chattel paper” and all “electronic
chattel paper”, as each term is defined in Article 9 of the UCC as in effect in the State of New
York on the date hereof.




          “Collateral” shall mean all property (whether real, personal, movable or immovable)
with respect to which any security interests have been granted (or purported to be granted) by any
Grantor pursuant to any ABL Security Document, Term Security Document or Notes Security Document.




          “Collateral Agents” shall have the meaning set forth in the recitals hereto.




          “Collateral Records” shall mean all books, records, ledger cards, files,
correspondence, customer lists, blueprints, technical specifications, manuals, computer software,
computer printouts, tapes, disks and related data processing software and similar items that at any
time evidence or contain information relating to any of the Collateral or are otherwise necessary
or helpful in the collection thereof or realization thereupon.




          “Collateral Support” shall mean all property (real or personal) assigned, hypothecated
or otherwise securing any Collateral and shall include any security agreement or other agreement
granting a lien or security interest in such real or personal property.




          “Commercial Tort Claims” shall mean all “commercial tort claims” as such term is
defined in Article 9 of the UCC as in effect in the State of New York on the date hereof.




          “Commodities Accounts” shall mean all “commodity accounts” as such term is defined in
Article 9 of the UCC as in effect in the State of New York on the date hereof.




          “Company” shall have the meaning set forth in the recitals hereto.




          “Comparable ABL Security Document” shall mean, in relation to any Collateral subject
to any Lien created under any Term Security Document or Notes Security Document, that ABL Security
Document which creates (or purports to create) a Lien on the same Collateral, granted by the same
Grantor, as the same may be amended, modified or otherwise supplemented from time to time in
accordance with the terms hereof, thereof and the Credit Agreements and the Indenture.



          “Comparable Notes Security Document” shall mean, in relation to any Collateral subject
to any Lien created under any Term Security Document or ABL Security Document, that Notes Security
Document which creates (or purports to create) a Lien on the same Collateral, granted by the same
Grantor, as the same may be amended, modified or otherwise supplemented from time to time in
accordance with the terms hereof, thereof, the Credit Agreements and the Indenture.



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          “Comparable Term Security Document” shall mean, in relation to any Collateral subject
to any Lien created under any ABL Security Document or Notes Security Document, that Term Security
Document which creates (or purports to create) a Lien on the same Collateral, granted by the same
Grantor, as the same may be amended, modified or otherwise supplemented from time to time in
accordance with the terms hereof, thereof and the Credit Agreements and the Indenture.




          “Contingent Obligation” shall mean, as to any Person, any obligation of such Person as
a result of such Person being a general partner of any other Person, unless the underlying
obligation is expressly made non-recourse as to such general partner, and any obligation of such
Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other
obligations (“primary obligations”) of any other Person (the “primary obligor”) in
any manner, whether directly or indirectly, including, without limitation, any obligation of such
Person, whether or not contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof; provided, however, that the term
Contingent Obligation shall not include endorsements of instruments for deposit or collection in
the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the lesser of (x) the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith and (y) the stated amount of such Contingent
Obligation.




          “Copyright Licenses” shall mean any and all agreements providing for the granting of
any right in or to Copyrights (whether such Grantor is licensee or licensor thereunder).




          “Copyrights” shall mean any United States or foreign copyright (including community
designs), now or hereafter owned by any Grantor, including, but not limited to, copyrights in
software and databases, and all Mask Works (as defined under 17 U.S.C. 901 of the U.S. Copyright
Act), whether registered or not registered, and, with respect to any and all of the foregoing: (i)
all registrations and applications therefor (whether in the United States Copyright Office or any
foreign equivalent office), (ii) all extensions and renewals thereof, (iii) all rights
corresponding thereto throughout the world, (iv) all rights to sue for past, present and future
infringements thereof and (v) all Proceeds of the foregoing, including licenses, royalties, income,
payments, claims, damages and proceeds of suit.




          “Credit Agreements” shall have the meaning set forth in the recitals hereto.




          “DBAG” shall have the meaning set forth in the recitals hereto.




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          “DBSI” shall have the meaning set forth in the recitals hereto.




          “Defaulting ABL Secured Party” shall have the meaning set forth in Section 3.4(h).




          “Defaulting Term Secured Party” shall have the meaning set forth in Section 2.4(h).




          “Deposit Account” shall mean a demand, time, savings, passbook or like account with a
bank, savings and loan association, credit union or like organization, other than an account
evidenced by a negotiable certificate of deposit.




          “DIP Financing” shall have the meaning set forth in Section 2.5(a).




          “Discharge of ABL Obligations” shall mean, except to the extent otherwise provided in
Section 3.4(f), the occurrence of all of the following:





     (i) termination or expiration of all commitments to extend credit that would constitute
ABL Obligations;




     (ii) payment in full in cash of the principal of and interest and premium (if any) on
all ABL Obligations (other than any undrawn letters of credit or bank guaranties);




     (iii) discharge or cash collateralization (at 110% of the aggregate undrawn amount) of
all outstanding letters of credit and bank guaranties constituting ABL Obligations; and




     (iv) payment in full in cash of all other ABL Obligations that are outstanding and
unpaid at the time the termination, expiration, discharge and/or cash collateralization set
forth in clauses (i) through (iii) above have occurred (other than any obligations for
taxes, costs, indemnifications, reimbursements, damages and other contingent liabilities in
respect of which no claim or demand for payment has been made at such time).



          “Discharge of Term Obligations” shall mean, except to the extent otherwise provided in
Section 2.4(f), the occurrence of all of the following:





     (i) termination or expiration of all commitments to extend credit that would constitute
Term Obligations (including, without limitation the Bermuda Guaranteed Obligations);




     (ii) payment in full in cash of the principal of and interest and premium (if any) on
all Term Obligations (other than any undrawn letters of credit or bank guaranties)
including, without limitation, any such Term Obligations constituting Bermuda Guaranteed
Obligations;




     (iii) discharge or cash collateralization (at 110% of the aggregate undrawn amount) of
all outstanding letters of credit and bank guaranties constituting Term



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Obligations including, without limitation, outstanding letters of credit and bank guaranties
constituting Bermuda Guaranteed Obligations; and




     (iv) payment in full in cash of all other Term Obligations (including, without
limitation, Bermuda Guaranteed Obligations) that are outstanding and unpaid at the time the
termination, expiration, discharge and/or cash collateralization set forth in clauses (i)
through (iii) above have occurred (other than any obligations for taxes, costs,
indemnifications, reimbursements, damages and other contingent liabilities in respect of
which no claim or demand for payment has been made at such time).



          “Documents” shall mean all “documents” as such term is defined in Article 9 of the UCC
in the State of New York on the date hereof.




          “Domestic Subsidiary” shall have the meaning provided in the Term Credit Agreement as
originally in effect.




          “Eligible ABL Purchaser” shall have the meaning set forth in Section 2.4(h).




          “Eligible Term Purchaser” shall have the meaning set forth in Section 3.4(h).




          “Equipment” shall mean any “equipment” as such term is defined in Article 9 of the UCC
as in effect in the State of New York on the date hereof, and in any event, shall include, but
shall not be limited to, all machinery, equipment, furnishings, appliances, furniture, fixtures,
tools, and vehicles now or hereafter owned by any Grantor in each case, regardless of whether
characterized as equipment under the UCC) and (y) and any and all additions, substitutions and
replacements of any of the foregoing and all accessions thereto, wherever located, whether or not
at any time of determination incorporated or installed therein or attached thereto, and all
replacements therefore, together with all attachments, components, parts, equipment and accessories
installed thereon or affixed thereto.




          “First Priority” shall mean, (i) with respect to any Lien purported to be created on
any ABL Priority Collateral pursuant to any ABL Security Document, that such Lien is prior in right
to any other Lien thereon, other than any ABL Permitted Liens (excluding ABL Permitted Liens as
described in clause (iii) of Section 10.03 of the ABL Credit Agreement) applicable to such ABL
Priority Collateral which as a matter of law (and giving effect to any actions taken pursuant to
the last paragraph of Section 10.03 of the ABL Credit Agreement) have priority over the respective
Liens on such ABL Priority Collateral created pursuant to the relevant ABL Security Document and
(ii) with respect to any Lien purported to be created on any TL Priority Collateral pursuant to any
Term Security Document, that such Lien is prior in right to any other Lien thereon, other than any
TL Permitted Liens (excluding TL Permitted Liens as described in clause (iii) of Section 9.03 of
the Term Credit Agreement) applicable to such TL Priority Collateral which as a matter of law (and
giving effect to any actions taken pursuant to the last paragraph of Section 9.03 of the Term
Credit Agreement) have priority over the respective Liens on such TL Priority Collateral created
pursuant to the relevant Term Security Document.




          “Fixtures” shall mean all “fixtures” as such term is defined in Article 9 of the UCC
as in effect in the State of New York on the date hereof.





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          “Foreign Subsidiary” shall have the meaning provided in the Term Credit Agreement as
originally in effect.




          “General Intangibles” shall mean “general intangibles” as defined in Article 9 of the
UCC as in effect in the State of New York on the date hereof.




          “Goods” shall mean “goods” as such term is defined in Article 9 of the UCC as in
effect in the State of New York on the date hereof.




          “Grantors” shall mean Holdings, Intermediate Holdco, the Company and each of their
respective Domestic Subsidiaries that have executed and delivered, or may from time to time
hereafter execute and deliver, an ABL Security Document, a Term Security Document or a Notes
Security Document.




          “Health-Care-Insurance Receivable” shall mean any “health-care-insurance receivable”
as such term is defined in the Uniform Commercial Code as in effect on the date hereof in the State
of New York.




          “Hedge Agreement” shall mean any Interest Rate Protection Agreement and any Other
Hedging Agreement.




          “Holdings” shall have the meaning set forth in the recitals hereto.




          “Indebtedness” shall mean, as to any Person, without duplication, (i) all indebtedness
(including principal, interest, fees and charges) of such Person for borrowed money or for the
deferred purchase price of property or services, (ii) the maximum amount available to be drawn or
paid under all letters of credit, bankers’ acceptances, bank guaranties and similar obligations
issued for the account of such Person and all unpaid drawings and unreimbursed payments in respect
of such letters of credit, bankers’ acceptances, bank guaranties and similar obligations, (iii) all
indebtedness of the types described in clause (i), (ii), (iv), (v), (vi) or (vii) of this
definition secured by any Lien on any property owned by such Person, whether or not such
indebtedness has been assumed by such Person (provided that, if the Person has not assumed
or otherwise become liable in respect of such indebtedness, such indebtedness shall be deemed to be
in an amount equal to the fair market value of the property to which such Lien relates as
determined in good faith by such Person), (iv) the aggregate amount of all Capitalized Lease
Obligations of such Person, (v) all obligations of such Person to pay a specified purchase price
for goods or services, whether or not delivered or accepted, i.e., take-or-pay and similar
obligations, (vi) all Contingent Obligations of such Person, and (vii) all obligations under any
Interest Rate Protection Agreement, any Other Hedging Agreement or under any similar type of
agreement and (viii) obligations arising under Synthetic Leases.




          “Indenture” shall have the meaning set forth in the recitals hereto and shall also
include any Additional Junior Lien Agreement.




          “Insolvency or Liquidation Proceeding” shall mean any of the following: (i) the
filing by any Grantor of a voluntary petition in bankruptcy under any provision of any bankruptcy
law (including, without limitation, the Bankruptcy Code) or a petition
to take advantage of any receivership or insolvency laws, including, without limitation, any petition




-11-









 







seeking the dissolution, winding up, total or partial liquidation, reorganization, composition, arrangement,
adjustment or readjustment or other relief of such Grantor, such Grantor’s debts or such Grantor’s
assets or the appointment of a trustee, receiver, liquidator, custodian or similar official for
such Grantor or a material part of such Grantor’s property; (ii) the admission in writing by such
Grantor of its inability to pay its debts generally as they become due; (iii) the appointment of a
receiver, liquidator, trustee, custodian or other similar official for such Grantor or all or a
material part of such Grantor’s assets; (iv) the filing of any petition against such Grantor under
any bankruptcy law (including, without limitation, the Bankruptcy Code) or other receivership or
insolvency law, including, without limitation, any petition seeking the dissolution, winding up,
total or partial liquidation, reorganization, composition, arrangement, adjustment or readjustment
or other relief of such Grantor, such Grantor’s debts or such Grantor’s assets or the appointment
of a trustee, receiver, liquidator, custodian or similar official for such Grantor or a material
part of such Grantor’s property; (v) the general assignment by such Grantor for the benefit of
creditors or any other marshalling of the assets and liabilities of such Grantor; or (vi) a
corporate (or similar) action taken by such Grantor to authorize any of the foregoing.




          “Instrument” shall mean “instruments” as such term is defined in Article 9 of the UCC
as in effect in the State of New York on the date hereof (provided, however,
Instruments shall not include any Instruments received in connection with grower loans extended in
accordance with Section 9.05 of the Term Credit Agreement, Section 10.05 of the ABL Credit
Agreement to the extent local law or the relevant grower loan documents prohibit such pledge).




          “Insurance” shall mean (i) all insurance policies covering any or all of the
Collateral (regardless of whether the ABL Collateral Agent, the Term Collateral Agent or the Notes
Collateral Agent is the loss payee or additional insured thereof) and (ii) any key man life
insurance policies.




          “Intellectual Property” shall mean, collectively, the Copyrights, the Copyright
Licenses, the Patents, the Patent Licenses, the Trademarks, the Trademark Licenses, the Trade
Secrets, and the Trade Secret Licenses.




          “Intercreditor Agreement Joinder” shall mean an agreement substantially in the form of
Exhibit A.




          “Interest Rate Protection Agreement” shall mean any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement,
interest rate floor agreement or other similar agreement or arrangement.




          “Intermediate Holdco” shall have the meaning set forth in the recitals hereto.




          “Inventory” shall mean merchandise, inventory and goods, and all additions,
substitutions and replacements thereof and all accessions thereto, wherever located, together with
all goods, supplies, incidentals, packaging materials, labels, materials and any other items used
or usable in manufacturing, processing, packaging or shipping same, in all stages of production
from raw materials through work in process to finished goods, and all products and proceeds of
whatever sort and wherever located, any portion thereof which may be returned, rejected,


-12-









 







reclaimed or repossessed by any of the Collateral Agents from any Grantor’s customers, and shall specifically
include all “inventory” as such term is defined in the UCC as in effect in the State of New York on
the date hereof.




          “Investment Accounts” shall mean all Securities Accounts, Commodities Accounts and
Deposit Accounts.




          “Investment Property” shall mean all “investment property” as such term is defined in
Article 9 of the UCC as in effect in the State of New York on the date hereof.




          “Joint Venture” shall mean a joint venture, partnership or other similar arrangement,
whether in corporate, partnership or other legal form; provided, in no event shall any
corporate subsidiary of any Person be considered to be a Joint Venture to which such Person is a
party.




          “Lender” shall have the meaning set forth in the recitals hereto.




          “Letter of Credit Rights” shall mean “letter-of-credit rights” as such term is defined
in Article 9 of the UCC as in effect in the State of New York on the date hereof.




          “Lien” shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, charge, lien (statutory or other), charge, preference,
priority or other security agreement of any kind or nature whatsoever (including any agreement to
give any of the foregoing, any conditional sale or other title retention agreement, any financing
or similar statement or notice filed under the UCC or any similar recording or notice statute or
other law, and any lease having substantially the same effect as the foregoing).




          “Material Contract” shall mean any contract or other arrangement to which Holdings or
any of its Subsidiaries is a party (other than the Term Documents, the ABL Documents and the Notes
Documents) for which breach, nonperformance, cancellation or failure to renew could reasonable be
expected to have a Material Adverse Effect (as defined in the Term Credit Agreement as originally
in effect).




          “Money” shall mean “money” as defined in the UCC as in effect in the State of New York
on the date hereof.




          “New ABL Agent” shall have the meaning set forth in Section 3.4(g).




          “New Term Agent” shall have the meaning set forth in Section 2.4(g).




          “Notes” shall mean (x) the new series of 13 7/8% Senior Secured Notes due 2014 issued
pursuant to the terms of the Indenture on the date hereof and (y) any Indebtedness issued pursuant
to any Additional Junior Lien Agreement.




          “Notes Collateral Agent” shall have the meaning set forth in the recitals hereto.




          “Notes Documents” shall mean the Indenture and each of the other agreements, documents
and instruments providing for or evidencing any Notes Obligations (including any


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Permitted Refinancing of any Notes Obligations), and any other document or instrument executed or delivered
at any time in connection with any Notes Obligations (including any Permitted Refinancing of any
Notes Obligations), together with any amendments, replacements, modifications, extensions, renewals
or supplements to, or restatements of, any of the foregoing.




          “Noteholders” shall mean the holders of the Notes.




          “Notes Obligations” shall mean all obligations (including guaranty obligation) of
every nature of each Grantor from time to time owed to the Noteholders or any of them, under any
Notes Document (including any Notes Document in respect of a Permitted Refinancing of any Notes
Obligations), whether for principal, premium, interest (including interest which, but for the
filing of a petition in bankruptcy with respect to Holdings or any of its Subsidiaries, would have
accrued on any Notes Obligations (including any Permitted Refinancing of any Notes Obligations),
whether or not a claim is allowed against such Person for such interest in the related bankruptcy
proceeding), reimbursement of amounts drawn under (and obligations to cash collateralize) letters
of credit and bank guaranties, fees, expenses, indemnification or otherwise.




          “Notes Permitted Liens” shall mean “Permitted Liens” under, and as defined in, the
Indenture.




          “Notes Secured Parties” shall mean the Notes Collateral Agent, any other agent or
trustee for the Noteholders pursuant to the terms of the Indenture and the Notes Documents and the
Noteholders.




          “Notes Security Agreement” shall mean the Security Agreement (as defined in the
Indenture).




          “Notes Security Documents” shall mean the Notes Security Agreement and the other
Security Documents (as defined in the Indenture) and any other agreement, document or instrument
pursuant to which a Lien is granted securing any Notes Obligations (including any Permitted
Refinancing of any Notes Obligations) or under which rights or remedies with respect to such Liens
are governed, together with any amendments, replacements, modifications, extensions, renewals or
supplements to, or restatements of, any of the foregoing. For the avoidance of doubt, “Notes
Security Documents” shall not include any ABL Documents or any Term Documents.




          “Other Hedging Agreements” shall mean any foreign exchange contracts, currency swap
agreements or other similar agreements or arrangements designed to protect against fluctuations in
currency values.




          “Patent Licenses” shall mean all agreements providing for the granting of any right in
or to Patents (whether such Grantor is licensee or licensor thereunder).




          “Patents” shall mean all patents (whether United States or foreign) in or to which any
Grantor now has or hereafter has any right, title or interest therein and certificates of
invention, or similar industrial property rights, and applications for any of the foregoing,
including, but not limited to: (i) all reissues, divisions, continuations (including, but not
limited to, continuations-in-part and improvements thereof), extensions, renewals, and
reexaminations




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thereof, (ii) all rights corresponding thereto throughout the world, (ii) all
inventions and improvements described therein, (iii) all rights to sue for past, present and future
infringements thereof, (iv) all licenses, claims, damages, and proceeds of suit arising therefrom,
and (v) all Proceeds of the foregoing, including licenses, royalties, income, payments, claims,
damages, and proceeds of suit.




          “Permitted Refinancing” shall mean, as to any Indebtedness, the Refinancing of such
Indebtedness (“Refinancing Indebtedness”) to refinance such existing Indebtedness;
provided that, in the case of such Refinancing Indebtedness, the following conditions are
satisfied:




     (i) the weighted average life to maturity of such Refinancing Indebtedness shall be
greater than or equal to the weighted average life to maturity of the Indebtedness being
refinanced, and the first scheduled principal payment in respect of such Refinancing
Indebtedness shall not be earlier than the first scheduled principal payment in respect of
the Indebtedness being refinanced;




     (ii) the principal amount of such Refinancing Indebtedness shall be less than or equal
to the principal amount then outstanding of the Indebtedness being refinanced, except to the
extent an increase in the principal amount thereof is permitted at such time pursuant to the
ABL Documents, the Term Documents and the Notes Documents which then remain in effect; and




     (iii) the terms applicable to such Refinancing Indebtedness and, if applicable, the
related guarantees of such Refinancing Indebtedness, shall not violate the applicable
requirements contained in any Term Documents or ABL Documents which remain outstanding after
giving effect to the respective Permitted Refinancing.




          “Person” shall mean any individual, partnership, joint venture, firm, corporation,
limited liability company, association, trust or other enterprise or any government or political
subdivision or any agency, department or instrumentality thereof.




          “Pledged ABL Priority Collateral” shall have the meaning set forth in Section 3.4(f).




          “Pledged Debt” shall mean all Indebtedness owed to a Grantor issued by the obligors
named therein, the instruments evidencing such Indebtedness, and all interest, cash, instruments
and other property or proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such Indebtedness.




          “Pledged Equity Interests” shall mean all Pledged Stock, Pledged LLC Interests,
Pledged Partnership Interests and Pledged Trust Interests.




          “Pledged LLC Interests” shall mean all interests in any limited liability company and
the certificates, if any, representing such limited liability company interests and any interest of
a Grantor on the books and records of such limited liability company or on the books and records of
any securities intermediary pertaining to such interest and all dividends, distributions, cash,
warrants, rights, options, instruments, securities and other property or proceeds from time




-15-









 







to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such
limited liability company interests.




          “Pledged Partnership Interests” shall mean all interests in any general partnership,
limited partnership, limited liability partnership or other partnership and the certificates, if
any, representing such partnership interests and any interest of a Grantor on the books and records
of such partnership or on the books and records of any securities intermediary pertaining to such
interest and all dividends, distributions, cash, warrants, rights, options, instruments, securities
and other property or proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such partnership interests.




          “Pledged Stock” shall mean all shares of capital stock owned by a Grantor, and the
certificates, if any, representing such shares and any interest of a Grantor in the entries on the
books of the issuer of such shares or on the books of any securities intermediary pertaining to
such shares, and all dividends, distributions, cash, warrants, rights, options, instruments,
securities and other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such shares.




          “Pledged TL Priority Collateral” shall have the meaning set forth in Section 2.4(f).




          “Pledged Trust Interests” shall mean all interests in a Delaware business trust or
other trust (whether under the laws of the State of Delaware or otherwise) and the certificates, if
any, representing such trust interests and any interest of a Grantor on the books and records of
such trust or on the books and records of any securities intermediary pertaining to such interest
and all dividends, distributions, cash, warrants, rights, options, instruments, securities and
other property or proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such trust interests.




          “Proceeds” shall mean all “proceeds” as such term is defined in Article 9 of the UCC
as in effect in the State of New York on the date hereof and, in any event, shall also include, but
not be limited to, (i) any and all proceeds of any insurance, indemnity, warranty or guaranty
payable to either Collateral Agent or any Grantor from time to time with respect to any of the
Collateral, (ii) any and all payments (in any form whatsoever) made or due and payable to any
Grantor from time to time in connection with any requisition, confiscation, condemnation, seizure
or forfeiture of all or any part of the Collateral by any governmental authority (or any person
acting under color of governmental authority) and (iii) any and all other amounts from time to time
paid or payable under or in connection with any of the Collateral.




          “Processing and Sale Period” shall have the meaning set forth in Section 4.3(a).




          “Promissory Note” shall mean a “promissory note” as such term is defined in Article 9
of the UCC as in effect in the State of New York on the date hereof.




          “Receivables” shall mean all rights to payment, whether or not earned by performance,
for goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services
rendered or to be rendered, including, without limitation all such rights constituting or evidenced
by any Account, Chattel Paper, Instrument, General Intangible or




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Investment Property, together with all of a Grantor’s rights, if any, in any goods or other property giving rise to such right to
payment and all Collateral Support and Supporting Obligations related thereto and all Receivables
Records.




          “Receivables Records” shall mean (i) all original copies of all documents, instruments
or other writings or electronic records or other Records evidencing Receivables, (ii) all books,
correspondence, credit or other files, Records, ledger sheets or cards, invoices, and other papers
relating to Receivables, including, without limitation, all tapes, cards, computer tapes, computer
discs, computer runs, record keeping systems and other papers and documents relating to
Receivables, whether in the possession or under the control of a Grantor or any computer bureau or
agent from time to time acting for a Grantor or otherwise, (iii) all evidences of the filing of
financing statements and the registration of other instruments in connection therewith, and
amendments, supplements or other modifications thereto, notices to other creditors or secured
parties, and certificates, acknowledgments, or other writings, including, without limitation, lien
search reports, from filing or other registration officers, (iv) all credit information, reports
and memoranda relating thereto and (v) all other written or nonwritten forms of information related
in any way to the foregoing or any Receivable.




          “Record” shall have the meaning specified in Article 9 of the UCC as in effect in the
State of New York on the date hereof.




          “Recovery” shall have the meaning set forth in Section 6.17.




          “Refinance” shall mean, in respect of any Indebtedness, to refinance, extend, renew,
retire, defease, amend, modify, supplement, restructure, replace, refund or repay, or to issue
other Indebtedness, in exchange or replacement for, such Indebtedness in whole or in part.
“Refinanced” and “Refinancing” shall have correlative meanings.




          “Second Priority” shall mean, (i) with respect to any Lien purported to be created on
any TL Priority Collateral pursuant to the ABL Security Documents, that such Lien is prior in right
to any other Lien thereon, other than (x) Liens permitted pursuant to clause (y) of Section
10.03(iii) of the ABL Credit Agreement and (y) TL Permitted Liens permitted to be prior to the
Liens on the TL Priority Collateral in accordance with clause (ii) of the definition “First
Priority” contained herein; provided that in no event shall any such TL Permitted Lien be
permitted (on a consensual basis) to be junior and subordinate to any ABL Permitted Liens as
described in clause (x) above and senior in priority to the relevant Liens created pursuant to the
ABL Security Documents and (ii) with respect to any Lien purported to be created on any ABL
Priority Collateral pursuant to the Term Security Documents, that such Lien is prior in right to
any other Lien thereon, other than (x) Liens permitted pursuant to clause (y) of Section 9.03(iii)
of the Term Credit Agreement and (y) ABL Permitted Liens permitted to be prior to the Liens on the
ABL Priority Collateral in accordance with clause (i) of the definition “First Priority” contained
herein; provided that in no event shall any such ABL Permitted Lien be permitted (on a
consensual basis) to be junior and subordinate to any TL Permitted Liens as described in clause (x)
above and senior in priority to the relevant Liens created pursuant to the Term Security Documents.




          “Scotia Capital” shall have the meaning set forth in the recitals hereto.





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          “Secured Hedge Counterparty” shall have the meaning provided in the Term Credit
Agreement as originally in effect.




          “Secured Parties” shall mean the ABL Secured Parties, the Term Secured Parties and the
Notes Secured Parties.




          “Securities” shall mean all “securities” as such term is defined in Article 8 of the
UCC as in effect in the State of New York on the date hereof, any stock, shares, partnership
interests, voting trust certificates, certificates of interest or participation in any profit
sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences
of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as “securities” or any certificates of interest, shares or
participations in temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.




          “Securities Accounts” shall mean all “securities accounts” as such term is defined in
Article 8 of the UCC as in effect in the State of New York on the date hereof.




          “Securities Entitlements” shall mean all “securities entitlements” as such term is
defined in Article 8 of the UCC as in effect in the State of New York on the date hereof.




          “Subsequent ABL Collateral Priority Lien” shall have the meaning set forth in Section
3.4(b).




          “Subsequent Term Collateral Priority Lien” shall have the meaning set forth in Section
2.4(b).




          “Subsidiary” shall mean, with respect to any Person, any corporation, partnership,
limited liability company, association, joint venture or other business entity of which more than
50% of the total voting power of shares of stock or other ownership interests entitled (without
regard to the occurrence of any contingency) to vote in the election of the Person or Persons
(whether directors, managers, trustees or other Persons performing similar functions) having the
power to direct or cause the direction of the management and policies thereof is at the time owned
or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of
that Person or a combination thereof; provided, in determining the percentage of ownership
interests of any Person controlled by another Person, no ownership interest in the nature of a
“qualifying share” of the former Person shall be deemed to be outstanding.




          “Supporting Obligations” shall mean any “supporting obligation” as such term is
defined in the UCC as in effect in the State of New York on the date hereof, now or hereafter owned
by any Grantor, or in which any Grantor has any rights, and, in any event, shall include, but shall
not be limited to all of such Grantor’s rights in any Letter-of-Credit Right or secondary
obligation that supports the payment or performance of, and all security for, any Collateral
consisting of Accounts, Chattel Paper, Documents, General Intangibles, Instruments or Investment
Properties.




          “Synthetic Lease” shall mean, as applied to any Person, any lease (including leases
that may be terminated by the lessee at any time) of any property (whether real, personal




-18-









 







or mixed), (i) that is not a capital lease in accordance with U.S. GAAP and (ii) in respect of which
the lessee retains or obtains ownership of the property so leased for federal income tax purposes,
other than any such lease under which that Person is the lessor.




          “Term Administrative Agent” shall have the meaning set forth in the recitals hereto.




          “Term Borrower” shall have the meaning set forth in the recitals hereto.




          “Term Collateral Agent” shall have the meaning set forth in the recitals hereto and
includes any New Term Agent to the extent set forth in Section 2.4(g).




          “Term Collateral Priority Lien” shall have the meaning set forth in Section 2.4(a).




          “Term Credit Agreement” shall have the meaning set forth in the recitals hereto.




          “Term Documents” shall mean (x) the Term Credit Agreement and the Credit Documents (as
defined in the Term Credit Agreement), (y) each Interest Rate Protection Agreement or Other Hedging
Agreement with one or more Secured Hedge Counterparties which is secured pursuant to one or more of
the Security Documents (as defined in the Term Credit Agreement) and (z) each of the other
agreements, documents and instruments providing for or evidencing any Term Obligation (including
any Permitted Refinancing of any Term Obligation), and any other document or instrument executed or
delivered at any time in connection with any Term Obligation (including any Permitted Refinancing
of any Term Obligation), together with any amendments, replacements, modifications, extensions,
renewals or supplements to, or restatements of, any of the foregoing.




          “Term Lenders” shall have the meaning set forth in the recitals hereto.




          “Term Obligations” shall mean all obligations (including guaranty obligations) of
every nature of each Grantor, from time to time owed to the Term Secured Parties or any of them,
under any Term Document (including any Term Document in respect of a Permitted Refinancing of any
Term Obligations), whether for principal, premium, interest (including interest which, but for the
filing of a petition in bankruptcy with respect to such Person, would have accrued on any Term
Obligation (including any Permitted Refinancing of any Term Obligations), whether or not a claim is
allowed against Holdings or any of its Subsidiaries for such interest in the related bankruptcy
proceeding), reimbursement of amounts drawn under (and obligations to cash collateralize) letters
of credit and bank guaranties, fees, expenses, indemnification or otherwise. For the avoidance of
doubt, it is specifically agreed that (x) each Grantor has provided a full and unconditional
guarantee of all obligations of the Bermuda Term Borrower under the Term Documents (the
“Bermuda Guaranteed Obligations”), (y) each Grantor has granted a Lien on its Collateral to
secure the Bermuda Guaranteed Obligations and (z) the Bermuda Guaranteed Obligations constitute a
portion of the Term Obligations.




          “Term Pledge Agreement” shall mean the U.S. Pledge Agreement (as defined in the Term
Credit Agreement).




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          “Term Secured Parties” shall mean the lenders and agents under the Term Credit
Agreement (including, without limitation, the holders of Bermuda Guaranteed Obligations) and the
Secured Hedge Counterparties and shall include all former lenders and agents under the Term Credit
Agreement and Secured Hedge Counterparties to the extent that any Term Obligations owing to such
Persons were incurred while such Persons were lenders or agents under the Term Credit Agreement or
Secured Hedge Counterparties and such Term Obligations have not been paid or satisfied in full and
all new Term Secured Parties to the extent set forth in Section 2.4(f) hereof.




          “Term Security Agreement” shall mean the U.S. Security Agreement (as defined in the
Term Credit Agreement).




          “Term Security Documents” shall mean the Term Security Agreement and the other
Security Documents (as defined in the Term Credit Agreement) and any other agreement, document or
instrument pursuant to which a Lien is granted securing any Term Obligations (including any
Permitted Refinancing of any Term Obligation) or under which rights or remedies with respect to
such Liens are governed, together with any amendments, replacements, modifications, extensions,
renewals or supplements to, or restatements of, any of the foregoing.




          “Term Standstill Period” shall have the meaning set forth in Section 3.2(a).




          “Third Priority” shall mean, with respect to any Lien purported to be created on any
Collateral pursuant to the Notes Security Documents, that such Lien is prior in right to any other
Lien thereon other than Liens securing the ABL Obligations, Liens securing the Term Obligations and
Liens securing obligations permitted to be secured prior to the ABL Obligations and the Term
Obligations pursuant to the definitions of First Priority and Second Priority contained herein.




          “TL Permitted Liens” shall mean the “Permitted Liens” under, and as defined in, the
Term Credit Agreement as in effect on the Restatement Effective Date (as defined therein).




          “TL Priority Collateral” shall mean, subject to the relevant provisions of
Sections 6.21 and 6.22, all interests of each Grantor in the following, in each case whether now
owned or existing or hereafter acquired or arising and wherever located, including (1) all rights
of each Grantor to receive moneys due and to become due under or pursuant to the following, (2) all
rights of each Grantor to receive return of any premiums for or proceeds of any insurance,
indemnity, warranty or guaranty with respect to the following or to receive condemnation proceeds
with respect to the following, (3) all claims of each Grantor for damages arising out of or for
breach of or default under any of the following, and (4) all rights of each Grantor to terminate,
amend, supplement, modify or waive performance under any of the following, to perform thereunder
and to compel performance and otherwise exercise all remedies thereunder:





     (i) the Asset Sale Proceeds Account;




     (ii) all Equipment;




     (iii) all Fixtures;



-20-









 






     (iv) all General Intangibles, including, without limitation, Material Contracts (in
each case other than General Intangibles evidencing or governing ABL Priority Collateral);




     (v) all Instruments (other than Instruments evidencing or governing or attached to (to
the extent so attached) ABL Priority Collateral);




     (vi) all Letter of Credit Rights (other than Letter of Credit Rights addressed in
clause (v) of the definition of “ABL Priority Collateral” herein);




     (vii) without duplication, all Pledged Equity Interests, all Pledged Debt, all
Securities, all Security Entitlements and all Securities Accounts (in each case, other than
any Collateral specifically listed as ABL Priority Collateral and any Supporting Obligations
supporting ABL Priority Collateral);




     (viii) all Intellectual Property;




     (ix) all Commercial Tort Claims;




     (x) all real property (including leasehold interests) on which the Grantors are
required to provide a Lien to the Term Secured Parties pursuant to the Term Credit Agreement
and any title insurance with respect to such real property and the proceeds thereof;




     (xi) except to the extent constituting, or relating to, the ABL Priority Collateral,
all other personal property (whether tangible or intangible) of such Grantor;




     (xii) to the extent constituting, or relating to, any of the items referred to in the
preceding clauses (i) through (xi), all Documents and Insurance; provided that to
the extent any of the foregoing also relates to ABL Priority Collateral only that portion
related to the items referred to in the preceding clauses (i) through (xi) as being included
in the TL Priority Collateral shall be included in the TL Priority Collateral;




     (xiii) to the extent relating to any of the items referred to in the preceding clauses
(i) through (xii), all Supporting Obligations; provided that to the extent any of
the foregoing also relates to ABL Priority Collateral only that portion related to the items
referred to in the preceding clauses (i) through (xii) as being included in the TL Priority
Collateral shall be included in the TL Priority Collateral;




     (xiv) all books, Records and Collateral Records relating to the foregoing (including
without limitation all books, databases, customer lists, engineer drawings, Records and
Collateral Records, whether tangible or electronic, which contain any information relating
to any of the foregoing); provided that to the extent any of such books, Records and
Collateral Records also relates to ABL Priority Collateral only that portion related to the
items referred to in the preceding clauses (i) through (xiii) as being included in the TL
Priority Collateral shall be included in the TL Priority Collateral; and



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     (xv) all Cash Proceeds and, solely to the extent not constituting ABL Priority
Collateral, non-Cash Proceeds, products, accessions, rents and profits of or in respect of
any of the foregoing and all collateral security, guarantees and other Collateral Support
given by any Person with respect to any of the foregoing.


Notwithstanding anything to the contrary contained above or in the definition of ABL Priority
Collateral, to the extent proceeds of Collateral are identifiable proceeds received from the sale
or disposition of all or substantially all of the Capital Stock of any of the Domestic Subsidiaries
of Holdings which is a Grantor or all or substantially all of the assets of any such Domestic
Subsidiary, such proceeds shall constitute (1) first, in an amount equal to the net book value of
the Accounts (as described in clause (i) of the definition of ABL Priority Collateral, and
excluding any Accounts to the extent excluded pursuant to said clause (i)) and Inventory owned by
such Domestic Subsidiary at the time of such sale, ABL Priority Collateral and (2) second, to the
extent in excess of the amounts described in preceding clause (1), TL Priority Collateral.




          “TL Priority Collateral Enforcement Action Notice” shall have the meaning set forth in
Section 4.3(a).




          “TL Priority Collateral Enforcement Actions” shall have the meaning set forth in
Section 4.3(a).




          “Trademark Licenses” shall mean any and all agreements providing for the granting of
any right in or to Trademarks (whether such Grantor is licensee or licensor thereunder).




          “Trademarks” shall mean (i) all United States and foreign trademarks, trade names,
corporate names, company names, business names, fictitious business names, Internet domain names,
service marks, certification marks, collective marks, logos, other source or business identifiers,
designs and general intangibles of a like nature, all registrations and applications for any of the
foregoing, (ii) all extensions or renewals of any of the foregoing, (iii) all of the goodwill of
the business connected with the use of and symbolized by the foregoing, (iv) the right to sue for
past, present and future infringement or dilution of any of the foregoing or for any injury to
goodwill, and (v) all Proceeds of the foregoing, including licenses, royalties, income, payments,
claims, damages, and proceeds of suit.




          “Trade Secret Licenses” shall mean any and all agreements providing for the granting
of any right in or to Trade Secrets (whether a Grantor is licensee or licensor thereunder).




          “Trade Secrets” shall mean all trade secrets and all other confidential or proprietary
information and know-how whether or not such Trade Secret has been reduced to a writing or other
tangible form, including all documents and things embodying, incorporating, or referring in any way
to such Trade Secret, including but not limited to: (i) any secretly held existing engineering or
other data, information, production procedures and other know-how relating to the design
manufacture, assembly, installation, use, operation, marketing, sale and/or servicing of any
products or business of any Grantor worldwide, (ii) the right to sue for past, present and future
misappropriation or other violation of any Trade Secret, and (iii) all Proceeds




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of the foregoing, including licenses, royalties, income, payments, claims, damages, and proceeds of suit.




          “Trustee” shall have the meaning set forth in the recitals hereto.




          “UCC” shall mean the Uniform Commercial Code as in effect from time to time in the
relevant jurisdiction.




          “U.S. Bank” shall have the meaning set forth in the recitals hereto.




          “U.S. GAAP” shall mean generally accepted accounting principles in the United States
of America as in effect from time to time.




          “U.S. Term Borrower” shall have the meaning set forth in the recitals hereto.




          15.02. Terms Generally. The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word “will”
shall be construed to have the same meaning and effect as the word “shall.” Unless the context
requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified, (b) any reference herein to any
Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,”
“hereof” and “hereunder,” and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision of this Agreement, (d) all references
herein to Exhibits or Sections shall be construed to refer to Exhibits or Sections of this
Agreement, (e) the words “asset” and “property” shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights, (f) terms defined in the UCC but not otherwise defined
herein shall have the same meanings herein as are assigned thereto in the UCC, (g) reference to any
law means such law as amended, modified, codified, replaced or re-enacted, in whole or in part, and
in effect on the date hereof, including rules, regulations, enforcement procedures and any
interpretations promulgated thereunder, and (h) references to Sections or clauses shall refer to
those portions of this Agreement, and any references to a clause shall, unless otherwise
identified, refer to the appropriate clause within the same Section in which such reference occurs.




SECTION 16. TL Priority Collateral.




          16.01. Lien Priorities.




          (a) Relative Priorities. Notwithstanding (i) the time, manner, order or method of
grant, creation, attachment or perfection of any Liens securing the ABL Obligations or the Notes
Obligations granted on the TL Priority Collateral or of any Liens securing the Term Obligations
granted on the TL Priority Collateral, (ii) the validity or enforceability of the security
interests and Liens granted in favor of any Collateral Agent or any Secured Party on the TL
Priority Collateral, (iii) the date on which any ABL Obligations, Term Obligations or



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Notes Obligations is extended, (iv) any provision of the UCC or any other applicable law, including any
rule for determining priority thereunder or under any other law or rule governing the relative
priorities of secured creditors, including with respect to real property or fixtures, (v) any
provision set forth in any ABL Document, any Term Document or any Notes Document (other than this
Agreement), (vi) the possession or control by any Collateral Agent or any Secured Party or any
bailee of all or any part of any TL Priority Collateral as of the date hereof or otherwise, or
(vii) any other circumstance whatsoever, the ABL Collateral Agent, on behalf of itself and the ABL
Secured Parties, and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties
hereby agree that:





     (i) any Lien on the TL Priority Collateral securing any Term Obligations now or
hereafter held by or on behalf of the Term Collateral Agent or any Term Secured Parties or
any agent or trustee therefor, regardless of how acquired, whether by grant, possession,
statute, operation of law, subrogation or otherwise, shall be senior in all respects and
prior to (x) any Lien on the TL Priority Collateral securing any of the ABL Obligations and
(y) any Lien on the TL Priority Collateral securing any of the Notes Obligations;




     (ii) any Lien on the TL Priority Collateral now or hereafter held by or on behalf of
the ABL Collateral Agent, any ABL Secured Parties, the Notes Collateral Agent, any Notes
Secured Parties or any agent or trustee therefor regardless of how acquired, whether by
grant, possession, statute, operation of law, subrogation or otherwise, shall be junior and
subordinate in all respects to all Liens on the TL Priority Collateral securing any Term
Obligations;




     (iii) any Lien on the TL Priority Collateral securing any ABL Obligations now or
hereafter held by or on behalf of the ABL Collateral Agent or any ABL Secured Parties or any
agent or trustee therefor, regardless of how acquired, whether by grant, possession,
statute, operation of law, subrogation or otherwise, shall be senior in all respects and
prior to any Lien on the TL Priority Collateral securing any of the Notes Obligations; and




     (iv) any Lien on the TL Priority Collateral now or hereafter held by or on behalf of
the Notes Collateral Agent, any Notes Secured Party or any agent or trustee therefor
regardless of how acquired, whether by grant, possession, statute, operation of law,
subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on
the TL Priority Collateral securing any ABL Obligations.


All Liens on the TL Priority Collateral securing any Term Obligations shall be and remain senior in
all respects and prior to all Liens on the TL Priority Collateral securing (x) any ABL Obligations
and (y) any Notes Obligations for all purposes, whether or not such Liens securing any Term
Obligations are subordinated to any Lien securing any other obligation of the Company, any other
Grantor or any other Person. All Liens on the TL Priority Collateral securing any ABL Obligations
shall be and shall remain senior in all respects and prior to all Liens on the TL Priority
Collateral securing any Notes Obligations for all purposes, whether or not such Liens securing any
ABL Obligations are subordinated to any Lien securing any other obligation of the Company, any
other Grantor or any other Person.





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          (b) Prohibition on Contesting Liens. Each of the ABL Collateral Agent, for itself
and on behalf of each ABL Secured Party, the Term Collateral Agent, for itself and on behalf of
each Term Secured Party, and the Notes Collateral Agent for itself and on behalf of each Notes
Secured Party, agrees that it shall not (and hereby waives any right to) contest or support any
other Person in contesting, in any proceeding (including any Insolvency or Liquidation
Proceeding), (i) the priority, validity or enforceability of a Lien held by or on behalf of any of
the Term Secured Parties in the TL Priority Collateral, by or on behalf of any of the ABL Secured
Parties in the TL Priority Collateral or by or on behalf of any of the Notes Secured Parties in
the TL Priority Collateral, as the case may be or (ii) the validity or enforceability of any ABL
Security Document (or any ABL Obligations thereunder), any Term Security Document (or any Term
Obligations thereunder) or any Notes Security Document (or any Notes Obligations thereunder);
provided that nothing in this Agreement shall be construed to prevent or impair the rights
of any of the Collateral Agents or any Secured Party to enforce this Agreement, including the
priority of the Liens on the TL Priority Collateral securing the Term Obligations, the ABL
Obligations and the Notes Obligations as provided in Sections 2.1(a), 2.2(a) and 2.2(b).



          (c) No New Liens. So long as the Discharge of Term Obligations has not occurred, the
parties hereto agree that the Company or any other Grantor shall not grant or permit any
additional Liens on any asset or property of any Grantor to secure any ABL Obligation or Notes
Obligation unless it has granted or contemporaneously grants (x)(i) a First Priority Lien on such
asset or property to secure the Term Obligations if such asset or property constitutes TL Priority
Collateral or (ii) a Second Priority Lien on such asset or property to secure the Term Obligations
if such asset or property constitutes ABL Priority Collateral, (y)(i) a Second Priority Lien on
such asset or property to secure the ABL Obligations if such asset or property constitutes TL
Priority Collateral or (ii) a First Priority Lien on such asset or property to secure the ABL
Obligations if such asset or property constitutes ABL Priority Collateral and (z) a Third Priority
Lien on such asset or property to secure the Notes Obligations. To the extent that the provisions
of clause (x)(i) in the immediately preceding sentence are not complied with for any reason,
without limiting any other rights and remedies available to the Term Collateral Agent and/or the
Term Secured Parties, each of the ABL Collateral Agent, on behalf of ABL Secured Parties, and the
Notes Collateral Agent, on behalf of the Notes Secured Parties, agrees that any amounts received
by or distributed to any of them pursuant to or as a result of Liens on the TL Priority Collateral
granted in contravention of such clause (x)(i) of this Section 2.1(c) shall be subject to Section
2.3.



          (d) Effectiveness of Lien Priorities. Each of the parties hereto acknowledges that
the Lien priorities provided for in this Agreement shall not be affected or impaired in any manner
whatsoever, including, without limitation, on account of: (i) the invalidity, irregularity or
unenforceability of all or any part of the ABL Documents, the Term Documents or the Notes
Documents; (ii) any amendment, change or modification of any ABL Documents, Term Documents or
Notes Documents; or (iii) any impairment, modification, change, exchange, release or subordination
of or limitation on, any liability of, or stay of actions or lien enforcement proceedings against,
Holdings or any of its Subsidiaries party to any of the ABL Documents, the Term Documents or the
Notes Documents, its property, or its estate in bankruptcy resulting from any bankruptcy,
arrangement, readjustment, composition,



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liquidation, rehabilitation, similar proceeding or otherwise involving or affecting any
Secured Party.



          16.02. Exercise of Remedies.



          (a) So long as the Discharge of Term Obligations has not occurred, whether or not any
Insolvency or Liquidation Proceeding has been commenced by or against Holdings, the Company or any
other Grantor:




     (i) none of the ABL Collateral Agent, the ABL Secured Parties, the Notes Collateral
Agent or the Notes Secured Parties (x) will exercise or seek to exercise any rights or
remedies (including, without limitation, setoff) with respect to any TL Priority Collateral
(including, without limitation, the exercise of any right under any lockbox agreement,
account control agreement, landlord waiver or bailee’s letter or similar agreement or
arrangement in respect of TL Priority Collateral to which the ABL Collateral Agent, the
Notes Collateral Agent, any ABL Secured Party or any Notes Secured Party is a party) or
institute or commence, or join with any Person (other than the Term Collateral Agent and the
Term Secured Parties) in commencing any action or proceeding with respect to such rights or
remedies (including any action of foreclosure), enforcement, collection or execution;
provided, however, that the ABL Collateral Agent may exercise any or all
such rights after the passage of a period of 180 days from the date of delivery of a notice
in writing to the Term Collateral Agent of the ABL Collateral Agent’s intention to exercise
its right to take such actions (the “ABL Standstill Period”); provided,
further, however, notwithstanding anything herein to the contrary, neither
the ABL Collateral Agent nor any ABL Secured Party will exercise any rights or remedies with
respect to any TL Priority Collateral if, notwithstanding the expiration of the ABL
Standstill Period, the Term Collateral Agent or Term Secured Parties shall have commenced
the exercise of any of their rights or remedies with respect to all or any portion of the TL
Priority Collateral (prompt notice of such exercise to be given to the ABL Collateral Agent)
and are pursuing the exercise thereof, (y) will contest, protest or object to any
foreclosure proceeding or action brought by the Term Collateral Agent or any Term Secured
Party with respect to, or any other exercise by the Term Collateral Agent or any Term
Secured Party of any rights and remedies relating to, the TL Priority Collateral under the
Term Documents or otherwise, or (z) subject to the rights of the ABL Collateral Agent under
clause (i)(x) above, will object to the forbearance by the Term Collateral Agent or the Term
Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other
exercise of any rights or remedies relating to the TL Priority Collateral, in each case so
long as the respective interests of the ABL Secured Parties and the Notes Secured Parties
attach to the proceeds thereof subject to the relative priorities described in Section 2.1;
provided, that the Notes Collateral Agent and the Notes Secured Parties will not
object to the forbearance by the ABL Collateral Agent or the ABL Secured Parties from
bringing or pursuing any foreclosure proceeding or action or any other exercise of any
rights or remedies relating to the TL Priority Collateral, in each case so long as the
interests of the Notes Secured Parties attach to the proceeds thereof subject to the
relative priorities described in Section 2.1; provided, however, that
nothing in this Section 2.2(a) shall be construed to authorize (A) the ABL Collateral Agent,
any ABL Secured Party, the Notes Collateral Agent or any Notes Secured Party to



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sell any TL Priority Collateral free of the Lien of the Term Collateral Agent or any
Term Secured Party or (B) the Notes Collateral Agent or any Notes Secured Party to sell any
TL Priority Collateral free of the Lien of the ABL Collateral Agent or any ABL Secured
Party; and




     (ii) subject to Section 4, the Term Collateral Agent and the Term Secured Parties shall
have the exclusive right to enforce rights, exercise remedies (including set off and the
right to credit bid their debt) and make determinations regarding the disposition of, or
restrictions with respect to, the TL Priority Collateral without any consultation with or
the consent of the ABL Collateral Agent, any ABL Secured Party, the Notes Collateral Agent
or any Notes Secured Party; provided, that:




     the ABL Collateral Agent may take any action (not adverse to the prior Liens on
the TL Priority Collateral securing the Term Obligations, or the rights of any Term
Collateral Agent or the Term Secured Parties to exercise remedies in respect
thereof) in order to preserve or protect its Lien on the TL Priority Collateral;




     the Notes Collateral Agent may take any action (not adverse to the prior Liens
on the TL Priority Collateral securing the Term Obligations and the ABL Obligations,
or the rights of any Term Collateral Agent, the Term Secured Parties, any ABL
Collateral Agent or the ABL Secured Parties to exercise remedies in respect thereof)
in order to preserve or protect its Lien on the TL Priority Collateral;




     the ABL Secured Parties and the Notes Secured Parties shall be entitled to file
any necessary responsive or defensive pleadings in opposition to any motion, claim,
adversary proceeding or other pleading made by any person objecting to or otherwise
seeking the disallowance of the claims of the ABL Secured Parties or the Notes
Secured Parties, as applicable, including without limitation any claims secured by
the TL Priority Collateral, if any, in each case in accordance with the terms of
this Agreement;




     the ABL Secured Parties and the Notes Secured Parties shall be entitled to file
any pleadings, objections, motions or agreements which assert rights or interests
available to unsecured creditors of the Grantors arising under either the Bankruptcy
Law or applicable non-bankruptcy law, in each case in accordance with the terms of
this Agreement;




     the ABL Secured Parties and the Notes Secured Parties shall be entitled to vote
on any plan of reorganization and file any proof of claim in an Insolvency or
Liquidation Proceeding or otherwise and other filings and make any arguments and
motions that are, in each case, in accordance with the terms of this Agreement, with
respect to the TL Priority Collateral; and




     the ABL Collateral Agent or any ABL Secured Party may exercise any of its
rights or remedies with respect to the TL Priority Collateral after the



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termination of the ABL Standstill Period to the extent permitted by clause
(i)(x) above.


Subject to Section 4, in exercising rights and remedies with respect to the TL Priority Collateral,
the Term Collateral Agent and the Term Secured Parties may enforce the provisions of the Term
Documents and exercise remedies thereunder, all in such order and in such manner as they may
determine in the exercise of their sole discretion. Such exercise and enforcement shall include
the rights of an agent appointed by them to sell or otherwise dispose of TL Priority Collateral
upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise
all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and
of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.




          (b) Following the Discharge of Term Obligations, so long as the Discharge of ABL Obligations
has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or
against Holdings, the Company or any other Grantor:




     (i) none of the Notes Collateral Agent and the Notes Secured Parties (x) will exercise
or seek to exercise any rights or remedies (including, without limitation, setoff) with
respect to any TL Priority Collateral (including, without limitation, the exercise of any
right under any lockbox agreement, account control agreement, landlord waiver or bailee’s
letter or similar agreement or arrangement in respect of TL Priority Collateral to which the
Notes Collateral Agent or any Notes Secured Party is a party) or institute or commence, or
join with any Person (other than the ABL Collateral Agent and the ABL Secured Parties) in
commencing any action or proceeding with respect to such rights or remedies (including any
action of foreclosure), enforcement, collection or execution; (y) will contest, protest or
object to any foreclosure proceeding or action brought by the ABL Collateral Agent or any
ABL Secured Party with respect to, or any other exercise by the ABL Collateral Agent or any
ABL Secured Party of any rights and remedies relating to, the TL Priority Collateral under
the ABL Documents or otherwise, or (z) will object to the forbearance by the ABL Collateral
Agent or the ABL Secured Parties from bringing or pursuing any foreclosure proceeding or
action or any other exercise of any rights or remedies relating to the TL Priority
Collateral, in each case so long as the respective interests of the Notes Secured Parties
attach to the proceeds thereof subject to the relative priorities described in Section 2.1;
and




     (ii) the ABL Collateral Agent and the ABL Secured Parties shall have the exclusive
right to enforce rights, exercise remedies (including set off and the right to credit bid
their debt) and make determinations regarding the disposition of, or restrictions with
respect to, the TL Priority Collateral without any consultation with or the consent of the
Notes Collateral Agent or any Notes Secured Party; provided, that:




     the Notes Collateral Agent may take any action (not adverse to the prior Liens
on the TL Priority Collateral securing the ABL Obligations, or the rights of any ABL
Collateral Agent or the ABL Secured Parties to exercise remedies in respect thereof)
in order to preserve or protect its Lien on the TL Priority Collateral;



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     the Notes Secured Parties shall be entitled to file any necessary responsive or
defensive pleadings in opposition to any motion, claim, adversary proceeding or
other pleading made by any person objecting to or otherwise seeking the disallowance
of the claims of the Notes Secured Parties, including without limitation any claims
secured by the TL Priority Collateral, if any, in each case in accordance with the
terms of this Agreement;




     the Notes Secured Parties shall be entitled to file any pleadings, objections,
motions or agreements which assert rights or interests available to unsecured
creditors of the Grantors arising under either the Bankruptcy Law or applicable
non-bankruptcy law, in each case in accordance with the terms of this Agreement; and




     the Notes Secured Parties shall be entitled to vote on any plan of
reorganization and file any proof of claim in an Insolvency or Liquidation
Proceeding or otherwise and other filings and make any arguments and motions that
are, in each case, in accordance with the terms of this Agreement, with respect to
the TL Priority Collateral.


In exercising rights and remedies with respect to the TL Priority Collateral, the ABL Collateral
Agent and the ABL Secured Parties may enforce the provisions of the ABL Documents and exercise
remedies thereunder, all in such order and in such manner as they may determine in the exercise of
their sole discretion. Such exercise and enforcement shall include the rights of an agent
appointed by them to sell or otherwise dispose of TL Priority Collateral upon foreclosure, to incur
expenses in connection with such sale or disposition, and to exercise all the rights and remedies
of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under
Bankruptcy Laws of any applicable jurisdiction.




          (c) Each of the ABL Collateral Agent, on behalf of itself and the ABL Secured Parties and the
Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that they will
not take or receive any TL Priority Collateral or any proceeds of TL Priority Collateral in
connection with the exercise of any right or remedy (including setoff) with respect to any TL
Priority Collateral unless and until the Discharge of Term Obligations has occurred, except as
expressly provided in the proviso in clause (ii) of Section 2.2(a) or in Section 4. Following the
Discharge of Term Obligations, the Notes Collateral Agent, on behalf of itself and the Notes
Secured Parties, agrees that it will not take or receive any TL Priority Collateral or any
proceeds of TL Priority Collateral in connection with the exercise of any right or remedy
(including setoff) with respect to any TL Priority Collateral unless and until the Discharge of
ABL Obligations has occurred. Without limiting the generality of the foregoing, (x) unless and
until the Discharge of Term Obligations has occurred, except as expressly provided in the proviso
in clause (ii) of Section 2.2(a) or in Section 4, the sole right of the ABL Collateral Agent, the
ABL Secured Parties with respect to the TL Priority Collateral is to hold a Lien on the TL
Priority Collateral pursuant to the ABL Documents for the period and to the extent granted therein
and to receive a share of the proceeds thereof, if any, after the Discharge of Term Obligations
has occurred in accordance with the terms hereof, the Term Documents and applicable law and (y)
unless and until the Discharge of Term Obligations and Discharge of ABL Obligations have occurred,
except as expressly provided in the proviso in clause (ii) of



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Section 2.2(a) and the proviso in clause (ii) of Section 2.2(b), the sole right of the Notes
Collateral Agent and the Notes Secured Parties with respect to the TL Priority Collateral is to
hold a Lien on the TL Priority Collateral pursuant to the Notes Documents for the period and to
the extent granted therein and to receive a share of the proceeds thereof, if any, after the
Discharge of Term Obligations and the Discharge of ABL Obligations has occurred in accordance with
the terms hereof, the Term Documents, the ABL Documents and applicable law.



          (d) Subject to the proviso in clause (ii) of Section 2.2(a), the proviso in clause (ii) of
Section 2.2(b) and Section 4:




     (i) the ABL Collateral Agent, for itself and on behalf of the ABL Secured Parties,
agrees that the ABL Collateral Agent and the ABL Secured Parties will not take any action
that would hinder any exercise of remedies under the Term Documents with respect to the TL
Priority Collateral or is otherwise prohibited hereunder, including any sale, lease,
exchange, transfer or other disposition of the TL Priority Collateral, whether by
foreclosure or otherwise,




     (ii) the Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties,
agrees that the Notes Collateral Agent and the Notes Secured Parties will not take any
action that would hinder any exercise of remedies under the Term Documents or the ABL
Documents with respect to the TL Priority Collateral or is otherwise prohibited hereunder,
including any sale, lease, exchange, transfer or other disposition of the TL Priority
Collateral, whether by foreclosure or otherwise,




     (iii) the ABL Collateral Agent, for itself and on behalf of the ABL Secured Parties,
hereby waives any and all rights it or the ABL Secured Parties may have as a junior lien
creditor with respect to the TL Priority Collateral or otherwise to object to the manner in
which the Term Collateral Agent or the Term Secured Parties seek to enforce or collect the
Term Obligations or the Liens granted in any of the TL Priority Collateral, regardless of
whether any action or failure to act by or on behalf of the Term Collateral Agent or Term
Secured Parties is adverse to the interest of the ABL Secured Parties, and




     (iv) the Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties,
hereby waives any and all rights it or the Notes Secured Parties may have as a junior lien
creditor with respect to the TL Priority Collateral or otherwise to object to the manner in
which the Term Collateral Agent, the Term Secured Parties, the ABL Collateral Agent or the
ABL Secured Parties seek to enforce or collect the Term Obligations or the ABL Obligations
or the Liens granted in any of the TL Priority Collateral, regardless of whether any action
or failure to act by or on behalf of the Term Collateral Agent, Term Secured Parties, the
ABL Collateral Agent or the ABL Secured Parties is adverse to the interest of the Notes
Secured Parties.



          (e) The ABL Collateral Agent hereby acknowledges and agrees that no covenant, agreement or
restriction contained in any ABL Document (other than this Agreement) shall be deemed to restrict
in any way the rights and remedies of the Term



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Collateral Agent or the Term Secured Parties with respect to the TL Priority Collateral as
set forth in this Agreement and the Term Documents.



          (f) The Notes Collateral Agent hereby acknowledges and agrees that no covenant, agreement or
restriction contained in any Notes Document (other than this Agreement) shall be deemed to
restrict in any way the rights and remedies of the Term Collateral Agent, the Term Secured
Parties, the ABL Collateral Agent or the ABL Secured Parties with respect to the TL Priority
Collateral as set forth in this Agreement, the Term Documents and the ABL Documents.



          16.03. Payments Over.



          (a) So long as the Discharge of Term Obligations has not occurred, any TL Priority
Collateral, cash proceeds thereof or non-cash proceeds not constituting ABL Priority Collateral
received by the ABL Collateral Agent, the Notes Collateral Agent, any ABL Secured Parties or any
Notes Secured Parties in connection with the exercise of any right or remedy (including set off)
relating to the TL Priority Collateral in contravention of this Agreement shall be segregated and
held in trust and forthwith paid over to the Term Collateral Agent for the benefit of the Term
Secured Parties in the same form as received, with any necessary endorsements or as a court of
competent jurisdiction may otherwise direct. The Term Collateral Agent is hereby authorized to
make any such endorsements as agent for the ABL Collateral Agent, any such ABL Secured Parties,
the Notes Collateral Agent or any such Notes Secured Parties. This authorization is coupled with
an interest and is irrevocable until such time as this Agreement is terminated in accordance with
its terms.



          (b) Following the Discharge of Term Obligations, so long as the Discharge of ABL Obligations
has not occurred, any TL Priority Collateral, cash proceeds thereof or non-cash proceeds received
by the Notes Collateral Agent or any Notes Secured Parties in connection with the exercise of any
right or remedy (including setoff) relating to the TL Priority Collateral in contravention of this
Agreement shall be segregated and held in trust and forthwith paid over to the ABL Collateral
Agent for the benefit of the ABL Secured Parties in the same form as received, with any necessary
endorsements or as a court of competent jurisdiction may otherwise direct. The ABL Collateral
Agent is hereby authorized to make any such endorsements as agent for the Notes Collateral Agent
or any such Notes Secured Parties. This authorization is coupled with an interest and is
irrevocable until such time as this Agreement is terminated in accordance with its terms.



          16.04. Other Agreements.



          (a) Releases by Term Collateral Agent.




     (i) If, in connection with:




          the exercise of any Term Collateral Agent’s remedies in respect of the TL Priority
Collateral provided for in Section 2.2(a), including any sale, lease, exchange, transfer or
other disposition of any such TL Priority Collateral; or



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          any sale, lease, exchange, transfer or other disposition of any TL Priority Collateral
permitted under the terms of the Term Documents, the ABL Documents and the Notes Documents
(whether or not an event of default thereunder, and as defined therein, has occurred and is
continuing),


the Term Collateral Agent, for itself or on behalf of any of the Term Secured Parties, releases any
of its Liens on any part of the TL Priority Collateral other than, in the case of clause (2) above,
(A) in connection with the Discharge of Term Obligations and (B) after the occurrence and during
the continuance of any event of default under the ABL Credit Agreement or the Indenture, then the
Liens, if any, of the ABL Collateral Agent, for itself or for the benefit of the ABL Secured
Parties and the Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties, on
such TL Priority Collateral (but not the Proceeds thereof, which shall be subject to the priorities
set forth in this Agreement) shall be automatically, unconditionally and simultaneously released
and the ABL Collateral Agent, for itself or on behalf of any such ABL Secured Parties, and the
Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties, promptly shall
execute and deliver to the Term Collateral Agent or such Grantor such termination statements,
releases and other documents as the Term Collateral Agent or such Grantor may request to
effectively confirm such release; provided that in the case of clause (a)(i) above, any proceeds of
such disposition shall be applied in accordance with this Agreement.





     (ii) Until the Discharge of Term Obligations occurs, the ABL Collateral Agent, for
itself and on behalf of the ABL Secured Parties and the Notes Collateral Agent, for itself
and on behalf of the Notes Secured Parties, hereby irrevocably constitute and appoint the
Term Collateral Agent and any officer or agent of the Term Collateral Agent, with full power
of substitution, as its true and lawful attorney in fact with full irrevocable power and
authority in the place and stead of the ABL Collateral Agent or the Notes Collateral Agent
or such holder or in the Term Collateral Agent’s own name, from time to time in the Term
Collateral Agent’s discretion, for the purpose of carrying out the terms of this Section
2.4(a) with respect to TL Priority Collateral, to take any and all appropriate action and to
execute any and all documents and instruments which may be necessary to accomplish the
purposes of this Section 2.4(a) with respect to TL Priority Collateral, including any
endorsements or other instruments of transfer or release.




     (iii) Until the Discharge of Term Obligations occurs, to the extent that the Term
Secured Parties (a) have released any Lien on TL Priority Collateral and any such Lien is
later reinstated or (b) obtain any new First Priority Liens on assets constituting TL
Priority Collateral from Grantors, then the ABL Secured Parties shall be granted a Second
Priority Lien on any such TL Priority Collateral and the Notes Secured Parties shall be
granted a Third Priority Lien or any such TL Priority Collateral.




     (iv) If, prior to the Discharge of Term Obligations, a subordination of the Term
Collateral Agent’s Lien on any TL Priority Collateral is permitted (or in good faith
believed by the Term Collateral Agent to be permitted) under the Term Credit Agreement and
the ABL Credit Agreement to another Lien permitted under the Term Credit Agreement, the ABL
Credit Agreement and the Indenture (a “Term Collateral Priority Lien”), then the
Term Collateral Agent is authorized to execute and deliver a subordination agreement with
respect thereto in form and substance satisfactory to it, and



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the ABL Collateral Agent, for itself and on behalf of the ABL Secured Parties and the
Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties, shall
promptly execute and deliver to the Term Collateral Agent an identical subordination
agreement subordinating (x) the Liens of the ABL Collateral Agent for the benefit of (and on
behalf of) the ABL Secured Parties to such Term Collateral Priority Lien and (y) the Liens
of the Notes Collateral Agent for the benefit of (and on behalf of) the Notes Secured
Parties to such Term Collateral Priority Lien.



          (b) Releases by ABL Collateral Agent.




     (i) Following the Discharge of Term Obligations, but prior to the Discharge of ABL
Obligations, if, in connection with:




          the exercise of any ABL Collateral Agent’s remedies in respect of the TL Priority
Collateral provided for in Section 2.2(b), including any sale, lease, exchange, transfer or
other disposition of any such TL Priority Collateral; or




          any sale, lease, exchange, transfer or other disposition of any TL Priority Collateral
permitted under the terms of the ABL Documents and the Notes Documents (whether or not an
event of default thereunder, and as defined therein, has occurred and is continuing),


the ABL Collateral Agent, for itself or on behalf of any of the ABL Secured Parties, releases any
of its Liens on any part of the TL Priority Collateral other than, in the case of clause (2) above,
(A) in connection with the Discharge of ABL Obligations and (B) after the occurrence and during the
continuance of any event of default under the Indenture, then the Liens, if any, of the Notes
Collateral Agent, for itself or for the benefit of the Notes Secured Parties, on such TL Priority
Collateral (but not the Proceeds thereof, which shall be subject to the priorities set forth in
this Agreement) shall be automatically, unconditionally and simultaneously released and the Notes
Collateral Agent, for itself or on behalf of any such Notes Secured Parties, promptly shall execute
and deliver to the ABL Collateral Agent or such Grantor such termination statements, releases and
other documents as the ABL Collateral Agent or such Grantor may request to effectively confirm such
release; provided that in the case of clause (b)(i) above, any proceeds of such disposition shall
be applied in accordance with this Agreement.





     (ii) Following the Discharge of Term Obligations and until the Discharge of ABL
Obligations occurs, the Notes Collateral Agent, for itself and on behalf of the Notes
Secured Parties, hereby irrevocably constitute and appoint the ABL Collateral Agent and any
officer or agent of the ABL Collateral Agent, with full power of substitution, as its true
and lawful attorney in fact with full irrevocable power and authority in the place and stead
of the Notes Collateral Agent or such holder or in the ABL Collateral Agent’s own name, from
time to time in the ABL Collateral Agent’s discretion, for the purpose of carrying out the
terms of this Section 2.4(b) with respect to TL Priority Collateral, to take any and all
appropriate action and to execute any and all documents and instruments which may be
necessary to accomplish the purposes of this Section 2.4(b) with respect to TL Priority
Collateral, including any endorsements or other instruments of transfer or release.



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     (iii) Following the Discharge of Term Obligations and until the Discharge of ABL
Obligations occurs, to the extent that the ABL Secured Parties (a) have released any Lien on
TL Priority Collateral and any such Lien is later reinstated or (b) obtain any new Second
Priority Liens on assets constituting TL Priority Collateral from Grantors, then the Notes
Secured Parties shall be granted a Third Priority Lien on any such TL Priority Collateral.




     (iv) If, prior to the Discharge of ABL Obligations, a subordination of the ABL
Collateral Agent’s Lien on any TL Priority Collateral is permitted (or in good faith
believed by the ABL Collateral Agent to be permitted) under the ABL Credit Agreement to
another Lien permitted under the ABL Credit Agreement and the Indenture (a “Subsequent
Term Collateral Priority Lien”), then the ABL Collateral Agent is authorized to execute
and deliver a subordination agreement with respect thereto in form and substance
satisfactory to it, and the Notes Collateral Agent, for itself and on behalf of the Notes
Secured Parties, shall promptly execute and deliver to the ABL Collateral Agent an identical
subordination agreement subordinating the Liens of the Notes Collateral Agent for the
benefit of (and on behalf of) the Notes Secured Parties to such Subsequent Term Collateral
Priority Lien.



          (c) Insurance. Unless and until the Discharge of Term Obligations has occurred, the
Term Collateral Agent and the Term Secured Parties shall have the sole and exclusive right,
subject to the rights of the Grantors under the Term Documents, to adjust settlement for any
insurance policy covering the TL Priority Collateral in the event of any loss thereunder and to
approve any award granted in any condemnation or similar proceeding (or any deed in lieu of
condemnation) in respect of the TL Priority Collateral. Following the Discharge of Term
Obligations, unless and until the Discharge of ABL Obligations has occurred, the ABL Collateral
Agent and the ABL Secured Parties shall have the sole and exclusive right, subject to the rights
of the Grantors under the ABL Documents, to adjust settlement for any insurance policy covering
the TL Priority Collateral in the event of any loss thereunder and to approve any award granted in
any condemnation or similar proceeding (or any deed in lieu of condemnation) in respect of the TL
Priority Collateral.



          (d) Amendments to ABL Security Documents or Notes Security Documents.




     (i) Without the prior written consent of the Term Collateral Agent, no ABL Security
Document or Notes Security Document may be amended, supplemented or otherwise modified or
entered into to the extent such amendment, supplement or modification, or the terms of any
new ABL Document or new Notes Document, would contravene the provisions of this Agreement.
Grantors agree that each ABL Security Document and Notes Security Document shall include the
following language (with any necessary modifications to give effect to applicable
definitions) (or language to similar effect approved by the Term Collateral Agent):




“Notwithstanding anything herein to the contrary, the liens and security interests
granted to [the ABL Collateral Agent] [the Notes Collateral Agent] pursuant to this
Agreement in any TL Priority Collateral and the exercise of any right or remedy by
[the ABL Collateral Agent] [the Notes Collateral Agent] with respect



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to any TL Priority Collateral hereunder are subject to the provisions of the
Intercreditor Agreement, dated as of [April 12, 2006] [March 18, 2009] (as amended,
restated, supplemented or otherwise modified from time to time, the
“Intercreditor Agreement”), among DHM HOLDING COMPANY, INC., a Delaware
corporation, DOLE HOLDING COMPANY, LLC, a Delaware limited liability company, DOLE
FOOD COMPANY, INC., a Delaware corporation (the “Company”), the other
GRANTORS from time to time party thereto, DEUTSCHE BANK AG NEW YORK BRANCH, as ABL
Collateral Agent, DBAG, as Term Collateral Agent, U.S. BANK NATIONAL ASSOCIATION, as
Notes Collateral Agent and certain other persons party or that may become party
thereto from time to time. In the event of any conflict between the terms of the
Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement
shall govern and control.”


In addition, Grantors agree that (x) each mortgage in favor of the ABL Secured Parties or the Notes
Secured Parties covering any TL Priority Collateral shall contain such other language as the Term
Collateral Agent may reasonably request to reflect the subordination of such mortgage to the
mortgage in favor of the Term Secured Parties covering such TL Priority Collateral and (y) each
mortgage in favor of the Notes Secured Parties covering any TL Priority Collateral shall contain
such other language as the ABL Collateral Agent may reasonably request to reflect the subordination
of such mortgage to the mortgage in favor of the ABL Secured Parties covering such TL Priority
Collateral.





     (ii) In the event any Term Collateral Agent or the Term Secured Parties and the
relevant Grantor enter into any amendment, waiver or consent in respect of any of the Term
Security Documents for the purpose of adding to, or deleting from, or waiving or consenting
to any departures from any provisions of, any Term Security Document or changing in any
manner the rights of the Term Collateral Agent, such Term Secured Parties, the Company or
any other Grantor thereunder, in each case with respect to or relating to the TL Priority
Collateral, then such amendment, waiver or consent shall apply automatically to any
comparable provision of (x) the Comparable ABL Security Document without the consent of the
ABL Collateral Agent or the ABL Secured Parties and without any action by the ABL Collateral
Agent, the Company or any other Grantor and (y) the Comparable Notes Security Document
without the consent of the Notes Collateral Agent or the Notes Secured Parties and without
any action by the Notes Collateral Agent, the Company or any other Grantor,
provided, that (A) no such amendment, waiver or consent shall have the effect of (i)
removing assets that constitute TL Priority Collateral subject to the Lien of the ABL
Security Documents or the Notes Security Documents, except to the extent that a release of
such Lien is permitted or required by Section 2.4(a) and provided that there is a
corresponding release of such Lien securing the Term Obligations, (ii) imposing duties on
the ABL Collateral Agent or the Notes Collateral Agent without its consent or (iii)
permitting other liens on the TL Priority Collateral not permitted under the terms of the
ABL Documents, the Notes Documents or Section 2.5 and (B) notice of such amendment, waiver
or consent shall have been given to the ABL Collateral Agent and the Notes Collateral Agent
within ten (10) Business Days after the effective date of such amendment, waiver or consent.



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     (iii) Following the Discharge of Term Obligations, in the event any ABL Collateral
Agent or the ABL Secured Parties and the relevant Grantor enter into any amendment, waiver
or consent in respect of any of the ABL Security Documents for the purpose of adding to, or
deleting from, or waiving or consenting to any departures from any provisions of, any ABL
Security Document or changing in any manner the rights of the ABL Collateral Agent, such ABL
Secured Parties, the Company or any other Grantor thereunder, in each case with respect to
or relating to the TL Priority Collateral, then such amendment, waiver or consent shall
apply automatically to any comparable provision of the Comparable Notes Security Document
without the consent of the Notes Collateral Agent or the Notes Secured Parties and without
any action by the Notes Collateral Agent, the Company or any other Grantor,
provided, that (A) no such amendment, waiver or consent shall have the effect of (i)
removing assets that constitute TL Priority Collateral subject to the Lien of the Notes
Security Documents, except to the extent that a release of such Lien is permitted or
required by Section 2.4(b) and provided that there is a corresponding release of
such Lien securing the ABL Obligations, (ii) imposing duties on the Notes Collateral Agent
without its consent or (iii) permitting other liens on the TL Priority Collateral not
permitted under the terms of the Notes Documents or Section 2.5 and (B) notice of such
amendment, waiver or consent shall have been given to the Notes Collateral Agent within ten
(10) Business Days after the effective date of such amendment, waiver or consent.



          (e) Rights As Unsecured Creditors. Except as otherwise set forth in Section 2.1 and
the Notes Documents, the ABL Collateral Agent, the ABL Secured Parties, the Notes Collateral Agent
and the Notes Secured Parties may exercise rights and remedies as unsecured creditors against the
Company or any other Grantor that has guaranteed the ABL Obligations or the Notes Obligations in
accordance with the terms of the ABL Documents, the Notes Documents and applicable law. Except as
otherwise set forth in Section 2.1, nothing in this Agreement shall prohibit the receipt by the
ABL Collateral Agent, any ABL Secured Parties, the Notes Collateral Agent or any Notes Secured
Parties of the required payments of interest, principal and other amounts in respect of the ABL
Obligations and Notes Obligations, as applicable, so long as such receipt is not the direct or
indirect result of the exercise by the ABL Collateral Agent, any ABL Secured Parties, the Notes
Collateral Agent or any Notes Secured Parties of rights or remedies as a secured creditor
(including set off) in respect of the TL Priority Collateral in contravention of this Agreement or
enforcement in contravention of this Agreement of any Lien held by any of them.



          (f) Bailee for Perfection.




     (i) The Term Collateral Agent agrees to hold that part of the TL Priority Collateral that is
in its possession or control (or in the possession or control of its agents or bailees) to the
extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such TL
Priority Collateral being the “Pledged TL Priority Collateral”) as collateral agent for the
Term Secured Parties and as bailee for and, with respect to any collateral that cannot be perfected
in such manner, as agent for, the ABL Collateral Agent (on behalf of the ABL Secured Parties) and
the Notes Collateral Agent (on behalf of the Notes Secured Parties) and any assignee thereof and
act as such agent under all control agreements relating to the Pledged TL Priority Collateral, in
each case solely for the purpose of perfecting the security



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interest granted under the Term Documents, the ABL Documents and the Notes Documents, as
applicable, subject to the terms and conditions of this Section 2.4(f). Following the Discharge of
Term Obligations, the ABL Collateral Agent agrees to hold the Pledged TL Priority Collateral as
collateral agent for the ABL Secured Parties and as bailee for and, with respect to any collateral
that cannot be perfected in such manner, as agent for, the Notes Collateral Agent (on behalf of the
Notes Secured Parties) and any assignee thereof solely for the purpose of perfecting the security
interest granted under the ABL Documents and the Notes Documents, as applicable, subject to the
terms and conditions of this Section 2.4(f). As security for the payment and performance in full
of all the Notes Obligations and ABL Obligations each Grantor hereby grants to the Term Collateral
Agent for the benefit of the Notes Secured Parties and the ABL Secured Parties a lien on and
security interest in all of the right, title and interest of such Grantor, in and to and under the
Pledged TL Priority Collateral wherever located and whether now existing or hereafter arising or
acquired from time to time. As security for the payment and performance in full of all the Notes
Obligations, each Grantor hereby grants to the ABL Collateral Agent for the benefit of the Notes
Secured Parties a lien on and security interest in all of the right, title and interest of such
Grantor, in and to and under the Pledged TL Priority Collateral wherever located and whether now
existing or hereafter arising or acquired from time to time.




     (ii) Subject to the terms of this Agreement, (x) until the Discharge of Term
Obligations has occurred, the Term Collateral Agent shall be entitled to deal with the
Pledged TL Priority Collateral in accordance with the terms of the Term Documents as if the
Liens of the ABL Collateral Agent under the ABL Security Documents and the Liens of the
Notes Collateral Agent under the Notes Security Documents did not exist and (y) following
the Discharge of Term Obligations and until the Discharge of ABL Obligations has occurred,
the ABL Collateral Agent shall be entitled to deal with the Pledged TL Priority Collateral
in accordance with the terms of the ABL Documents as if the Liens of the Notes Collateral
Agent under the Notes Security Documents did not exist. The rights of the ABL Collateral
Agent and the Notes Collateral Agent shall at all times be subject to the terms of this
Agreement and to the Term Collateral Agent’s rights under the Term Documents.




     (iii) The Term Collateral Agent shall have no obligation whatsoever to any Term Secured
Party, the ABL Collateral Agent, any ABL Secured Party, the Notes Collateral Agent or any
Notes Secured Party to ensure that the Pledged TL Priority Collateral is genuine or owned by
any of the Grantors or to preserve rights or benefits of any Person except as expressly set
forth in this Section 2.4(f). The duties or responsibilities of the Term Collateral Agent
under this Section 2.4(f) shall be limited solely to holding the Pledged TL Priority
Collateral as bailee or agent in accordance with this Section 2.4(f). The ABL Collateral
Agent shall have no obligation whatsoever to any ABL Secured Party, the Notes Collateral
Agent or any Notes Secured Party to ensure that the Pledged TL Priority Collateral is
genuine or owned by any of the Grantors or to preserve rights or benefits of any Person
except as expressly set forth in this Section 2.4(f). The duties or responsibilities of the
ABL Collateral Agent under this Section 2.4(f) shall be limited solely to holding the
Pledged TL Priority Collateral as bailee or agent in accordance with this Section 2.4(f).



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     (iv) The Term Collateral Agent acting pursuant to this Section 2.4(f) shall not have by
reason of the Term Security Documents, the ABL Security Documents, the Notes Security
Documents, this Agreement or any other document a fiduciary relationship in respect of any
Term Secured Party, the ABL Collateral Agent, any ABL Secured Party, the Notes Collateral
Agent or any Notes Secured Party. The ABL Collateral Agent acting pursuant to this Section
2.4(f) shall not have by reason of the ABL Security Documents, the Notes Security Documents,
this Agreement or any other document a fiduciary relationship in respect of any ABL Secured
Party, the Notes Collateral Agent or any Notes Secured Party.




     (v) Upon the Discharge of Term Obligations under the Term Documents to which the Term
Collateral Agent is a party, the Term Collateral Agent shall deliver or cause to be
delivered the remaining Pledged TL Priority Collateral (if any) in its possession or in the
possession of its agents or bailees, together with any necessary endorsements, first, to the
ABL Collateral Agent to the extent ABL Obligations remain outstanding, second, to the Notes
Collateral Agent to the extent Notes Obligations remain outstanding and third, to the
applicable Grantor to the extent no Term Obligations, ABL Obligations or Notes Obligations
remain outstanding (in each case, so as to allow such Person to obtain control of such
Pledged TL Priority Collateral) and will cooperate with the ABL Collateral Agent or Notes
Collateral Agent, as applicable, in assigning (without recourse to or warranty by the Term
Collateral Agent or any Term Secured Party or agent or bailee thereof) control over any
other Pledged TL Priority Collateral under its control. The Term Collateral Agent further
agrees to take all other action reasonably requested by such Person in connection with such
Person obtaining a first priority interest in the Pledged TL Priority Collateral or as a
court of competent jurisdiction may otherwise direct. Following the Discharge of Term
Obligations and upon the Discharge of ABL Obligations under the ABL Documents to which the
ABL Collateral Agent is a party, the ABL Collateral Agent shall deliver or cause to be
delivered the remaining Pledged TL Priority Collateral (if any) in its possession or in the
possession of its agents or bailees, together with any necessary endorsements, first, to the
Notes Collateral Agent to the extent Notes Obligations remain outstanding, and second, to
the applicable Grantor to the extent no ABL Obligations or Notes Obligations remain
outstanding (in each case, so as to allow such Person to obtain control of such Pledged TL
Priority Collateral) and will cooperate with the Notes Collateral Agent in assigning
(without recourse to or warranty by the ABL Collateral Agent or any ABL Secured Party or
agent or bailee thereof) control over any other Pledged TL Priority Collateral under its
control. The ABL Collateral Agent further agrees to take all other action reasonably
requested by such Person in connection with such Person obtaining a first priority interest
in the Pledged TL Priority Collateral or as a court of competent jurisdiction may otherwise
direct.




     (vi) Notwithstanding anything to the contrary herein, if, for any reason, any ABL
Obligations remain outstanding upon the Discharge of Term Obligations, all rights of the
Term Collateral Agent hereunder and under the Term Security Documents, the ABL Security
Documents or the Notes Security Documents (1) with respect to the delivery and control of
any part of the TL Priority Collateral, and (2) to direct, instruct, vote upon or otherwise
influence the maintenance or disposition of such TL Priority Collateral, shall immediately,
and (to the extent permitted by law) without further action



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on the part of either of the Notes Collateral Agent, the ABL Collateral Agent or the
Term Collateral Agent, pass to the ABL Collateral Agent, who shall thereafter hold such
rights for the benefit of the ABL Secured Parties and as bailee for and, with respect to any
collateral that cannot be perfected in such manner, as agent for, the Notes Secured Parties.
Each of the Term Collateral Agent and the Grantors agrees that it will, if any ABL
Obligations or Notes Obligations remain outstanding upon the Discharge of Term Obligations,
take any other action required by any law or reasonably requested by the ABL Collateral
Agent or the Notes Collateral Agent, in connection with the ABL Collateral Agent’s
establishment and perfection of a First Priority security interest in the TL Priority
Collateral and the Notes Collateral Agent’s establishment and perfection of a Second
Priority security interest in the TL Priority Collateral.




     (vii) Notwithstanding anything to the contrary contained herein, if for any reason,
prior to the Discharge of the ABL Obligations, the Term Collateral Agent or the Notes
Collateral Agent acquires possession of any Pledged ABL Priority Collateral, the Term
Collateral Agent or the Notes Collateral Agent shall hold same as bailee and/or agent to the
same extent as is provided in preceding clause (i) with respect to Pledged TL Priority
Collateral, provided that as soon as is practicable the Term Collateral Agent or the
Notes Collateral Agent shall deliver or cause to be delivered such Pledged ABL Priority
Collateral to the ABL Collateral Agent in a manner otherwise consistent with the
requirements of preceding clause (v).



          (g) When Discharge of Term Obligations Deemed to Not Have Occurred. Notwithstanding
anything to the contrary herein, if at any time after the Discharge of Term Obligations has
occurred (or concurrently therewith) the Company or any other Grantor immediately thereafter (or
concurrently therewith) enters into any Permitted Refinancing of any Term Obligations, then such
Discharge of Term Obligations shall automatically be deemed not to have occurred for all purposes
of this Agreement (other than with respect to any actions taken prior to the date of such
designation as a result of the occurrence of such first Discharge of Term Obligations), and the
obligations under the Permitted Refinancing shall automatically be treated as Term Obligations
(together with Interest Rate Protection Agreements and Other Hedging Agreements on the basis
provided in the definition of “Term Documents” contained herein) for all purposes of this
Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set
forth herein, the term “Term Credit Agreement” shall be deemed appropriately modified to refer to
such Permitted Refinancing and the Term Collateral Agent under such Term Documents shall be a Term
Collateral Agent for all purposes hereof and the new secured parties under such Term Documents
(together with Secured Hedge Counterparties as provided herein) shall automatically be treated as
Term Secured Parties for all purposes of this Agreement. Upon receipt of a notice stating that
the Company or any other Grantor has entered into a new Term Document in respect of a Permitted
Refinancing of Term Obligations (which notice shall include the identity of the new collateral
agent, such agent, the “New Term Agent”), and delivery by the New Term Agent of an
Intercreditor Agreement Joinder, the ABL Collateral Agent and the Notes Collateral Agent shall
promptly (i) enter into such documents and agreements (including amendments or supplements to this
Agreement) as the Company or such New Term Agent shall reasonably request in order to provide to
the New Term Agent the rights contemplated hereby, in each case consistent in all material
respects with the terms of this Agreement and (ii) deliver to the New Term Agent any Pledged TL
Priority



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Collateral held by the ABL Collateral Agent or the Notes Collateral Agent together with any
necessary endorsements (or otherwise allow the New Term Agent to obtain control of such Pledged TL
Priority Collateral). The New Term Agent shall agree to be bound by the terms of this Agreement.
If the new Term Obligations under the new Term Documents are secured by assets of the Grantors of
the type constituting TL Priority Collateral that do not also secure the ABL Obligations and the
Notes Obligations, then the ABL Obligations shall be secured at such time by a Second Priority
Lien on such assets to the same extent provided in the ABL Security Documents with respect to the
other TL Priority Collateral and the Notes Obligations shall be secured at such time by a Third
Priority Lien on such assets to the same extent provided in the Notes Security Documents with
respect to the other TL Priority Collateral. If the new Term Obligations under the new Term
Documents are secured by assets of the Grantors of the type constituting ABL Priority Collateral
that do not also secure the ABL Obligations and the Notes Obligations, then the ABL Obligations
shall be secured at such time by a First Priority Lien on such assets to the same extent provided
in the ABL Security Documents with respect to the other ABL Priority Collateral and the Notes
Obligations shall be secured at such time by a Third Priority Lien on such assets to the same
extent provided in the Notes Security Documents with respect to the other ABL Priority Collateral.



          (h) Option to Purchase Term Obligations.




     (i) Without prejudice to the enforcement of remedies by the Term Collateral Agent and
the Term Secured Parties, any Person or Persons (in each case who must meet all eligibility
standards contained in all relevant Term Documents) at any time or from time to time
designated by the holders of more than 50% in aggregate outstanding principal amount of the
ABL Obligations under the ABL Credit Agreement as being entitled to exercise all default
purchase options as to the Term Obligations then outstanding (an “Eligible ABL
Purchaser”) shall have the right to purchase by way of assignment (and shall thereby
also assume all commitments and duties of the Term Secured Parties), at any time during the
exercise period described in clause (iii) below of this Section 2.4(h), all, but not less
than all, of the Term Obligations (other than the Term Obligations of a Defaulting Term
Secured Party (as defined below)), including all principal of and accrued and unpaid
interest and fees on and all prepayment or acceleration penalties and premiums in respect of
all Term Obligations outstanding at the time of purchase; provided that at the time
of (and as a condition to) any purchase pursuant to this Section 2.4(h), all commitments
pursuant to any then outstanding Term Credit Agreement shall have terminated and all Hedge
Agreements constituting Term Documents also shall have been terminated in accordance with
their terms. Any purchase pursuant to this Section 2.4(h)(i) shall be made as follows:




          for (x) a purchase price equal to the sum of (A) (I) in the case of all loans, advances
or other similar extensions of credit that constitute Term Obligations (including
unreimbursed amounts drawn in respect of letters of credit and bank guaranties, but
excluding the undrawn amount of then outstanding letters of credit and bank guaranties),
100% of the principal amount thereof and all accrued and unpaid interest thereon through the
date of purchase (without regard, however, to any acceleration prepayment penalties
or premiums other than customary breakage costs) and (II) in the case of all credit-linked
deposits (or equivalents) related to the foregoing Obligations set forth in preceding clause



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(I) (which credit-linked deposits, for the avoidance of doubt, will continue to be held
by the applicable deposit bank for application pursuant to the terms of the Term Credit
Agreement and it being understood and agreed that upon any drawing under any letter of
credit or any bank guaranty, such deposit bank and the Term Administrative Agent shall apply
the credit-linked deposits deposited with the deposit bank to repay the respective unpaid
drawing or unreimbursed payment, as the case may be, in accordance with the terms of the
Term Credit Agreement), 100% of the aggregate amount of such credit-linked deposits and all
accrued and unpaid interest thereon through the date of purchase, (B) in the case of any
Hedge Agreement, the aggregate amount then owing to each Secured Hedge Counterparty (which
is a Term Secured Party) thereunder pursuant to the terms of the respective Hedge Agreement,
including without limitation all amounts owing to such Secured Hedge Counterparty (which is
a Term Secured Party) as a result of the termination (or early termination) thereof (in each
case, to the extent of its interest as a Term Secured Party) plus (C) all accrued and unpaid
fees, expenses, indemnities and other amounts through the date of purchase; and (y) an
obligation on the part of the respective Eligible ABL Purchasers (which shall be expressly
provided in the assignment documentation described below) to reimburse each issuing lender
and bank guaranty issuer (or, any Term Secured Party required to pay same) for all amounts
thereafter drawn with respect to any letters of credit and any bank guaranties constituting
Term Obligations which remain outstanding after the date of any purchase pursuant to this
Section 2.4 (except to the extent of the credit-linked deposits actually held at such time
by the deposit bank under the Term Credit Agreement which are required, in accordance with
the provisions of the Term Credit Agreement, to be applied to pay same);




          with the purchase price described in preceding clause (i)(1)(x) payable in cash on the
date of purchase against transfer to the respective Eligible ABL Purchaser or Eligible ABL
Purchasers (without recourse and without any representation or warranty whatsoever, whether
as to the enforceability of any Term Obligation or the validity, enforceability, perfection,
priority or sufficiency of any Lien securing, or guarantee or other supporting obligation
for, any Term Obligation or as to any other matter whatsoever, except the representation and
warranty that the transferor owns free and clear of all Liens and encumbrances (other than
participation interests not prohibited by the Term Credit Agreement, in which case the
purchase price described in preceding clause (i)(1)(x) shall be appropriately adjusted so
that the Eligible ABL Purchaser or Eligible ABL Purchasers do not pay amounts represented by
any participation interest which remains in effect), and has the right to convey, whatever
claims and interests it may have in respect of the Term Obligations); provided that
the purchase price in respect of any outstanding letter of credit that remains undrawn on
the date of purchase shall be payable in cash as and when such letter of credit is drawn
upon (i) first, from the credit-linked deposits which then remain on deposit in
accordance with the terms of the Term Credit Agreement (as described in clause (1)(A)(11)
above), until the amounts contained therein have been exhausted, and (ii) thereafter,
directly by the respective Eligible ABL Purchaser or Eligible ABL Purchasers;




          with the purchase price described in preceding clause (i)(l)(x) accompanied by a waiver
by the ABL Collateral Agent (on behalf of itself and the other ABL Secured



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Parties) of all claims arising out of this Agreement and the transactions contemplated
hereby as a result of exercising the purchase option contemplated by this Section 2.4(h);




          with all amounts payable to the various Term Secured Parties in respect of the
assignments described above to be distributed to them by the Term Collateral Agent in
accordance with their respective holdings of the various Term Obligations; and




          with such purchase to be made pursuant to assignment documentation in form and
substance reasonably satisfactory to, and prepared by counsel for, the Term Collateral Agent
(with the cost of such counsel to be paid by the Grantors or, if the Grantors do not make
such payment, by the respective Eligible ABL Purchaser or Eligible ABL Purchasers, who shall
have the right to obtain reimbursement of same from the Grantors); it being understood and
agreed that the Term Collateral Agent and each other Term Secured Party shall retain all
rights to indemnification as provided in the relevant Term Documents for all periods prior
to any assignment by them pursuant to the provisions of this Section 2.4(h). The relevant
assignment documentation shall also provide that, if for any reason (other than the gross
negligence or willful misconduct of the Term Collateral Agent (as determined by a court of
competent jurisdiction in a final and non-appealable judgment)), the amount of credit-linked
deposits held by the deposit bank under the terms of the Term Documents is at any time less
than the full amounts owing with respect to any letter of credit and/or any bank guaranty
described above (including facing, fronting, facility and similar fees) then the respective
Eligible ABL Purchaser or Eligible ABL Purchasers shall promptly reimburse the Term
Collateral Agent (who shall pay the respective issuing lender and/or bank guaranty issuer,
as the case may be) the amount of deficiency.




     (ii) The right to exercise the purchase option described in Section 2.4(h)(i) above
shall be exercisable and legally enforceable upon at least ten (10) Business Days’ prior
written notice of exercise (which notice, once given, shall be irrevocable and fully binding
on the respective Eligible ABL Purchaser or Eligible ABL Purchasers) given to the Term
Collateral Agent by an Eligible ABL Purchaser. Neither the Term Collateral Agent nor any
Term Secured Party shall have any disclosure obligation to any Eligible Term Purchaser, the
ABL Collateral Agent or any ABL Secured Party in connection with any exercise of such
purchase option.




     (iii) The right to purchase the Term Obligations as described in this Section 2.4(h)
may be exercised (by giving the irrevocable written notice described in preceding clause
(ii)) during the period that (1) begins on the date occurring three Business Days after the
first to occur of (x) the date of the acceleration of the final maturity of the loans under
the Term Credit Agreement, (y) the occurrence of the final maturity of the loans under the
Term Credit Agreement or (z) the occurrence of an Insolvency or Liquidation Proceeding with
respect to the Company or any other Grantor which constitutes an event of default under the
Term Credit Agreement (in each case, so long as the acceleration, failure to pay amounts due
at final maturity or such Insolvency or Liquidation Proceeding constituting an event of
default has not been rescinded or cured within such 10 Business Day period, and so long as
any unpaid amounts constituting Term Obligations remain owing); provided that if
there is any failure to meet the condition described in the proviso



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of preceding clause (i) hereof, the aforementioned date shall be extended until the
first date upon which such condition is satisfied, and (2) ends on the 90th day after the
start of the period described in clause (1) above.




     (iv) The obligations of the Term Secured Parties to sell their respective Term
Obligations under this Section 2.4(h) are several and not joint and several. To the extent
any Term Secured Party breaches its obligation to sell its Term Obligations under this
Section 2.4(h) (a “Defaulting Term Secured Party”), nothing in this Section 2.4(h)
shall be deemed to require the Term Collateral Agent or any Term Secured Party to purchase
such Defaulting Term Secured Party’s Term Obligations for resale to the holders of ABL
Obligations and in all cases, the Term Collateral Agent and each Term Secured Party
complying with the terms of this Section 2.4(h) shall not be deemed to be in default of this
Agreement or otherwise be deemed liable for any action or inaction of any Defaulting Term
Secured Party; provided that nothing in this clause (iv) shall require any Eligible
ABL Purchaser to purchase less than all of the Term Obligations.




     (v) Each Grantor irrevocably consents to any assignment effected to one or more
Eligible ABL Purchasers pursuant to this Section 2.4(h) (so long as they meet all
eligibility standards contained in all relevant Term Documents, other than obtaining the
consent of any Grantor to an assignment to the extent required by such Term Documents) for
purposes of all Term Documents and hereby agrees that no further consent from such Grantor
shall be required.



          16.05. Insolvency or Liquidation Proceedings.



          (a) Finance and Sale Issues.




     (i) Until the Discharge of Term Obligations has occurred, if the Company or any other
Grantor shall be subject to any Insolvency or Liquidation Proceeding and the Term Collateral
Agent shall desire to permit the use of cash collateral constituting TL Priority Collateral
on which the Term Collateral Agent or any other creditor has a Lien or to permit the Company
or any other Grantor to obtain financing, whether from the Term Secured Parties or any other
entity under Section 363 or Section 364 of the Bankruptcy Code or any similar Bankruptcy Law
(each, a “DIP Financing”), then the ABL Collateral Agent, on behalf of itself and
the ABL Secured Parties and the Notes Collateral Agent, on behalf of itself and the Notes
Secured Parties, agree that they will raise no objection to such use of cash collateral
constituting TL Priority Collateral or to the fact that such DIP Financing may be granted
Liens on the TL Priority Collateral and will not request adequate protection or any other
relief in connection therewith (except, as expressly, agreed by the Term Collateral Agent or
to the extent permitted by Section 2.5(c)) and, to the extent the Liens on the TL Priority
Collateral securing the Term Obligations are subordinated or pari passu with
the Liens on the TL Priority Collateral securing such DIP Financing, the ABL Collateral
Agent and the Notes Collateral Agent will subordinate their Liens in the TL Priority
Collateral to the Liens securing such DIP Financing (and all obligations relating thereto).
The ABL Collateral Agent, on behalf of the ABL Secured Parties, and the Notes Collateral
Agent, on behalf of itself and the Notes Secured Parties, agree that they will not raise any
objection or oppose a sale or other disposition of any TL



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Priority Collateral free and clear of its Liens (subject to attachment of proceeds with
respect to the Second Priority Lien on the TL Priority Collateral in favor of the ABL
Collateral Agent and the Third Priority Lien on the TL Priority Collateral in favor of the
Notes Collateral Agent in the same order and manner as otherwise set forth herein) or other
claims under Section 363 of the Bankruptcy Code if the Term Secured Parties have consented
to such sale or disposition of such assets.




     (ii) Following the Discharge of Term Obligations and until the Discharge of ABL
Obligations has occurred, if the Company or any other Grantor shall be subject to any
Insolvency or Liquidation Proceeding and the ABL Collateral Agent shall desire to permit the
Company or any other Grantor to obtain a DIP Financing, then the Notes Collateral Agent, on
behalf of itself and the Notes Secured Parties, agrees that it will raise no objection to
such use of cash collateral constituting TL Priority Collateral or to the fact that such DIP
Financing may be granted Liens on the TL Priority Collateral and will not request adequate
protection or any other relief in connection therewith (except, as expressly, agreed by the
ABL Collateral Agent or to the extent permitted by Section 2.5(c)) and, to the extent the
Liens on the TL Priority Collateral securing the ABL Obligations are subordinated or
pari passu with the Liens on the TL Priority Collateral securing such DIP
Financing, the Notes Collateral Agent will subordinate its Liens in the TL Priority
Collateral to the Liens securing such DIP Financing (and all obligations relating thereto).
Following the Discharge of Term Obligations, the Notes Collateral Agent, on behalf of the
Notes Secured Parties, agrees that it will not raise any objection or oppose a sale or other
disposition of any TL Priority Collateral free and clear of its Liens (subject to attachment
of proceeds with respect to the Third Priority Lien on the TL Priority Collateral in favor
of the Notes Collateral Agent in the same order and manner as otherwise set forth herein) or
other claims under Section 363 of the Bankruptcy Code if the ABL Secured Parties have
consented to such sale or disposition of such assets.



          (b) Relief from the Automatic Stay. Until the Discharge of Term Obligations has
occurred, the ABL Collateral Agent, on behalf of itself and the ABL Secured Parties and the Notes
Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that none of them shall
seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding
in respect of the TL Priority Collateral without the prior written consent of the Term Collateral
Agent. Following the Discharge of Term Obligations, until the Discharge of ABL Obligations has
occurred, the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees
that none of them shall seek relief from the automatic stay or any other stay in any Insolvency or
Liquidation Proceeding in respect of the TL Priority Collateral without the prior written consent
of the ABL Collateral Agent.



          (c) Adequate Protection.




     (i) The ABL Collateral Agent, on behalf of itself and the ABL Secured Parties and the
Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that none
of them shall contest (or support any other person contesting) (i) any request by the Term
Collateral Agent or the Term Secured Parties for adequate protection with respect to any TL
Priority Collateral or (ii) any objection by the Term Collateral Agent or the Term Secured
Parties to any motion, relief, action or proceeding based on



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the Term Collateral Agent or the Term Secured Parties claiming a lack of adequate
protection with respect to the TL Priority Collateral. Notwithstanding the foregoing
provisions in this Section 2.5(c), in any Insolvency or Liquidation Proceeding, (A) if the
Term Secured Parties (or any subset thereof) are granted adequate protection in the form of
additional collateral in the nature of assets constituting TL Priority Collateral in
connection with any DIP Financing, then the ABL Collateral Agent, on behalf of itself or any
of the ABL Secured Parties and the Notes Collateral Agent, on behalf of itself and the Notes
Secured Parties, may seek or request adequate protection in the form of a Lien on such
additional collateral, which Lien of the ABL Collateral Agent will be subordinated to the
Liens securing the Term Obligations and such DIP Financing (and all obligations relating
thereto) on the same basis as the other Liens on TL Priority Collateral securing the ABL
Obligations are so subordinated to the Term Obligations under this Agreement and which Lien
of the Notes Collateral Agent will be subordinated to the Liens securing the Term
Obligations, such DIP Financing (and all obligations relating thereto) and the ABL
Obligations on the same basis as the other Liens on TL Priority Collateral securing the
Notes Obligations are so subordinated to the Term Obligations and ABL Obligations under this
Agreement, and (B) in the event the ABL Collateral Agent, on behalf of itself and the ABL
Secured Parties or the Notes Collateral Agent, on behalf of itself and the Notes Secured
Parties, seek or request adequate protection in respect of TL Priority Collateral securing
ABL Obligations or the Notes Obligations, as applicable, and such adequate protection is
granted in the form of additional collateral in the nature of assets constituting TL
Priority Collateral, then the ABL Collateral Agent, on behalf of itself or any of the ABL
Secured Parties and the Notes Collateral Agent, on behalf of itself and the Notes Secured
Parties, agree that the Term Collateral Agent shall also be granted a senior Lien on such
additional collateral as security for the Term Obligations and for any such DIP Financing
provided by the Term Secured Parties and that any Lien on such additional collateral
securing the ABL Obligations and the Notes Obligations shall be subordinated to the Liens on
such collateral securing the Term Obligations and any such DIP Financing provided by the
Term Secured Parties (and all obligations relating thereto) and to any other Liens granted
to the Term Secured Parties as adequate protection on the same basis as the other Liens on
TL Priority Collateral securing the ABL Obligations and the Notes Obligations are so
subordinated to such Term Obligations under this Agreement.




     (ii) Prior to the Discharge of ABL Obligations, the Notes Collateral Agent, on behalf
of itself and the Notes Secured Parties, agrees that none of them shall contest (or support
any other person contesting) (i) any request by the ABL Collateral Agent or the ABL Secured
Parties for adequate protection with respect to any TL Priority Collateral or (ii) any
objection by the ABL Collateral Agent or the ABL Secured Parties to any motion, relief,
action or proceeding based on the ABL Collateral Agent or the ABL Secured Parties claiming a
lack of adequate protection with respect to the TL Priority Collateral. Notwithstanding the
foregoing provisions in this Section 2.5(c), in any Insolvency or Liquidation Proceeding,
(A) if the ABL Secured Parties (or any subset thereof) are granted adequate protection in
the form of additional collateral in the nature of assets constituting TL Priority
Collateral in connection with any DIP Financing, then the Notes Collateral Agent, on behalf
of itself and the Notes Secured Parties, may seek or request adequate protection in the form
of a Lien on such additional collateral, which



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Lien will be subordinated to the Liens securing the ABL Obligations and such DIP
Financing (and all obligations relating thereto) on the same basis as the other Liens on TL
Priority Collateral securing the Notes Obligations are so subordinated to the ABL
Obligations under this Agreement, and (B) in the event the Notes Collateral Agent, on behalf
of itself and the Notes Secured Parties, seek or request adequate protection in respect of
TL Priority Collateral securing the Notes Obligations, and such adequate protection is
granted in the form of additional collateral in the nature of assets constituting TL
Priority Collateral, then the Notes Collateral Agent, on behalf of itself and the Notes
Secured Parties, agree that the ABL Collateral Agent shall also be granted a senior Lien on
such additional collateral as security for the ABL Obligations and for any such DIP
Financing provided by the ABL Secured Parties and that any Lien on such additional
collateral securing the Notes Obligations shall be subordinated to the Liens on such
collateral securing the ABL Obligations and any such DIP Financing provided by the ABL
Secured Parties (and all obligations relating thereto) and to any other Liens granted to the
ABL Secured Parties as adequate protection on the same basis as the other Liens on TL
Priority Collateral securing the Notes Obligations are so subordinated to such ABL
Obligations under this Agreement.



          (d) No Waiver. Subject to the proviso in clause (ii) of Section 2.2(a), nothing
contained herein shall prohibit or in any way limit the Term Collateral Agent or any Term Secured
Party from objecting in any Insolvency or Liquidation Proceeding or otherwise to any action taken
by the ABL Collateral Agent, any of the ABL Secured Parties, the Notes Collateral Agent or any of
the Notes Secured Parties in respect of the TL Priority Collateral, including the seeking by the
ABL Collateral Agent, any ABL Secured Parties, the Notes Collateral Agent or any Notes Secured
Parties of adequate protection in respect thereof or the asserting by the ABL Collateral Agent,
any ABL Secured Parties, the Notes Collateral Agent or any Notes Secured Parties of any of its
rights and remedies under the ABL Documents, the Notes Documents or otherwise in respect thereof.
Subject to the proviso in clause (ii) of Section 2.2(b), nothing contained herein shall prohibit
or in any way limit the ABL Collateral Agent or any ABL Secured Party from objecting in any
Insolvency or Liquidation Proceeding or otherwise to any action taken by the Notes Collateral
Agent or any of the Notes Secured Parties in respect of the TL Priority Collateral, including the
seeking by the Notes Collateral Agent or any Notes Secured Parties of adequate protection in
respect thereof or the asserting by the Notes Collateral Agent or any Notes Secured Parties of any
of its rights and remedies under the Notes Documents or otherwise in respect thereof.



          (e) Reorganization Securities. If, in any Insolvency or Liquidation Proceeding, debt
obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor
are distributed, pursuant to a plan of reorganization or similar dispositive restructuring plan,
on account of Term Obligations, on account of ABL Obligations and on account of Notes Obligations,
then, to the extent the debt obligations distributed on account of the Term Obligations, on
account of the ABL Obligations and on account of Notes Obligations are secured by Liens upon the
same property, the provisions of this Agreement will survive the distribution of such debt
obligations pursuant to such plan and will apply with like effect to the Liens securing such debt
obligations.



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          (f) Post-Petition Interest.




     (i) None of the ABL Collateral Agent, any ABL Secured Party, the Notes Collateral Agent
or any Notes Secured Party shall oppose or seek to challenge any claim by the Term
Collateral Agent or any Term Secured Party for allowance in any Insolvency or Liquidation
Proceeding of Term Obligations consisting of post-petition interest, fees or expenses to the
extent of the value of the Term Secured Party’s Lien on the TL Priority Collateral, without
regard to the existence of the Lien of the ABL Collateral Agent on behalf of the ABL Secured
Parties on the TL Priority Collateral or the Lien of the Notes Collateral Agent on behalf of
the Notes Secured Parties on the TL Priority Collateral. None of the Notes Collateral Agent
or any Notes Secured Party shall oppose or seek to challenge any claim by the ABL Collateral
Agent or any ABL Secured Party for allowance in any Insolvency or Liquidation Proceeding of
ABL Obligations consisting of post-petition interest, fees or expenses to the extent of the
value of the ABL Secured Party’s Lien on the TL Priority Collateral, without regard to the
existence of the Lien of the Notes Collateral Agent on behalf of the Notes Secured Parties
on the TL Priority Collateral.




     (ii) Neither the Term Collateral Agent nor any other Term Secured Party shall oppose or
seek to challenge any claim by the ABL Collateral Agent, any ABL Secured Party, the Notes
Collateral Agent or any Notes Secured Party for allowance in any Insolvency or Liquidation
Proceeding of ABL Obligations or Notes Obligations consisting of post-petition interest,
fees or expenses to the extent of the value of the Lien of the ABL Collateral Agent on
behalf of the ABL Secured Parties on the TL Priority Collateral or the Lien of the Notes
Collateral Agent on behalf of the Notes Secured Parties on the TL Priority Collateral (after
taking into account the Lien of the Term Secured Parties on the TL Priority Collateral and
with respect to the Lien of the Notes Collateral Agent, after taking into account the Lien
of the ABL Secured Parties on the TL Priority Collateral). Neither the ABL Collateral Agent
nor any other ABL Secured Party shall oppose or seek to challenge any claim by the Notes
Collateral Agent or any Notes Secured Party for allowance in any Insolvency or Liquidation
Proceeding of Notes Obligations consisting of post-petition interest, fees or expenses to
the extent of the value of the Lien of the Notes Collateral Agent on behalf of the Notes
Secured Parties on the TL Priority Collateral (after taking into account the Lien of the
Term Secured Parties and the ABL Secured Parties on the TL Priority Collateral).



          (g) Waiver. The ABL Collateral Agent, for itself and on behalf of the ABL Secured
Parties, and the Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties,
waive any claim they may hereafter have against any Term Secured Party arising out of the election
of any Term Secured Party of the application of Section 111l(b)(2) of the Bankruptcy Code, and/or
out of any cash collateral or financing arrangement or out of any grant of a security interest in
connection with the TL Priority Collateral in any Insolvency or Liquidation Proceeding.



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          16.06. Reliance; Waivers; Etc.



          (a) Reliance. Other than any reliance on the terms of this Agreement, the ABL
Collateral Agent, on behalf of itself and the ABL Secured Parties, and the Notes Collateral Agent,
for itself and on behalf of the Notes Secured Parties, acknowledge that they and such ABL Secured
Parties and such Notes Secured Parties have, independently and without reliance on the Term
Collateral Agent or any Term Secured Parties, and based on documents and information deemed by
them appropriate, made their own credit analysis and decision to enter into such ABL Documents and
Notes Documents and be bound by the terms of this Agreement and they will continue to make their
own credit decision in taking or not taking any action under the ABL Credit Agreement, the
Indenture or this Agreement.



          (b) No Warranties or Liability. The ABL Collateral Agent, on behalf of itself and
the ABL Secured Parties, and the Notes Collateral Agent, for itself and on behalf of the Notes
Secured Parties, acknowledge and agree that the Term Collateral Agent and the Term Secured Parties
have made no express or implied representation or warranty, including with respect to the
execution, validity, legality, completeness, collectability or enforceability of any of the Term
Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon.
The Term Secured Parties will be entitled to manage and supervise their respective loans and
extensions of credit under their respective Term Documents in accordance with law and as they may
otherwise, in their sole discretion, deem appropriate. The Term Collateral Agent and the Term
Secured Parties shall have no duty to the ABL Collateral Agent, any of the ABL Secured Parties,
the Notes Collateral Agent or any of the Notes Secured Parties to act or refrain from acting in a
manner which allows, or results in, the occurrence or continuance of an event of default or
default under any agreements with the Company or any other Grantor (including the Term Documents,
the ABL Documents and the Notes Documents), regardless of any knowledge thereof which they may
have or be charged with.



          (c) No Waiver of Lien Priorities.




     (i) No right of the Term Secured Parties, the Term Collateral Agent or any of them to
enforce any provision of this Agreement or any Term Document shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company or any other
Grantor or by any act or failure to act by any Term Secured Party or the Term Collateral
Agent, or by any noncompliance by any Person with the terms, provisions and covenants of
this Agreement, any of the Term Documents, any of the ABL Documents or any of the Notes
Documents, regardless of any knowledge thereof which the Term Collateral Agent or the Term
Secured Parties, or any of them, may have or be otherwise charged with.




     (ii) Without in any way limiting the generality of the foregoing paragraph (but subject
to the rights of the Company and the other Grantors under the Term Documents and subject to
the provisions of Section 2.4(c)), the Term Secured Parties, the Term Collateral Agent and
any of them may, at any time and from time to time in accordance with the Term Documents
and/or applicable law, without the consent of, or notice to, the ABL Collateral Agent, any
ABL Secured Party, the Notes Collateral Agent or any Notes Secured Party, without incurring
any liabilities to the ABL Collateral Agent, any ABL



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Secured Party, the Notes Collateral Agent or any Notes Secured Party and without
impairing or releasing the Lien priorities and other benefits provided in this Agreement
(even if any right of subrogation or other right or remedy of the ABL Collateral Agent, any
ABL Secured Party, the Notes Collateral Agent or any Notes Secured Party is affected,
impaired or extinguished thereby) do any one or more of the following:




          sell, exchange, realize upon, enforce or otherwise deal with in any manner (subject to
the terms hereof) and in any order any part of the TL Priority Collateral or any liability
of the Company or any other Grantor to the Term Secured Parties or the Term Collateral
Agent, or any liability incurred directly or indirectly in respect thereof;




          settle or compromise any Term Obligation or any other liability of the Company or any
other Grantor or any security therefor or any liability incurred directly or indirectly in
respect thereof; and




          exercise or delay in or refrain from exercising any right or remedy against the Company
or any security or any other Grantor or any other Person, elect any remedy and otherwise
deal freely with the Company, any other Grantor or any TL Priority Collateral and any
security and any guarantor or any liability of the Company or any other Grantor to the Term
Secured Parties or any liability incurred directly or indirectly in respect thereof.




     (iii) The ABL Collateral Agent, on behalf of itself and the ABL Secured Parties and the
Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, also agree that
the Term Secured Parties and the Term Collateral Agent shall have no liability to the ABL
Collateral Agent, any ABL Secured Party, the Notes Collateral Agent or any Notes Secured
Party, and the ABL Collateral Agent, on behalf of itself and the ABL Secured Parties and the
Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, hereby waive any
claim against any Term Secured Party or the Term Collateral Agent, arising out of any and
all actions which the Term Secured Parties or the Term Collateral Agent may take or permit
or omit to take with respect to:




          the Term Documents (other than this Agreement);




          the collection of the Term Obligations; or




     the foreclosure upon, or sale, liquidation or other disposition of, any TL Priority
Collateral.


The ABL Collateral Agent, on behalf of itself and the ABL Secured Parties and the Notes Collateral
Agent, on behalf of itself and the Notes Secured Parties, agree that the Term Secured Parties and
the Term Collateral Agent have no duty to the ABL Collateral Agent, the ABL Secured Parties, the
Notes Collateral Agent or the Notes Secured Parties in respect of the maintenance or preservation
of the TL Priority Collateral, the Term Obligations or otherwise.





     (iv) The Notes Collateral Agent, on behalf of itself and the Notes Secured Parties,
also agrees that the ABL Secured Parties and the ABL Collateral Agent shall have no
liability to the Notes Collateral Agent or any Notes Secured Party, and the Notes



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Collateral Agent, on behalf of itself and the Notes Secured Parties, hereby waives any
claim against any ABL Secured Party or the ABL Collateral Agent, arising out of any and all
actions which the ABL Secured Parties or the ABL Collateral Agent may take or permit or omit
to take with respect to:




          the ABL Documents (other than this Agreement);




          the collection of the ABL Obligations; or




          the foreclosure upon, or sale, liquidation or other disposition of, any TL Priority
Collateral.


The Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees that the ABL
Secured Parties and the ABL Collateral Agent have no duty to the Notes Collateral Agent or the
Notes Secured Parties in respect of the maintenance or preservation of the TL Priority Collateral,
the ABL Obligations or otherwise.





     (v) The ABL Collateral Agent, on behalf of itself and the ABL Secured Parties, and the
Notes Collateral Agent, on behalf of itself and the Notes Secured Parties agree not to
assert and hereby waive, to the fullest extent permitted by law, any right to demand,
request, plead or otherwise assert or otherwise claim the benefit of, any marshalling,
appraisal, valuation or other similar right that may otherwise be available under applicable
law with respect to the TL Priority Collateral or any other similar rights a junior secured
creditor may have under applicable law.




     (vi) The Notes Collateral Agent, on behalf of itself and the Notes Secured Parties,
agrees not to assert and hereby waive, to the fullest extent permitted by law, any right to
demand, request, plead or otherwise assert or otherwise claim the benefit of, any
marshalling, appraisal, valuation or other similar right that may otherwise be available
under applicable law with respect to the TL Priority Collateral or any other similar rights
a junior secured creditor may have under applicable law.



          (d) Obligations Unconditional. All rights, interests, agreements and obligations of
the Term Collateral Agent and the Term Secured Parties and the ABL Collateral Agent, the ABL
Secured Parties, the Notes Collateral Agent and the Notes Secured Parties, respectively, hereunder
shall remain in full force and effect irrespective of:




     (i) any lack of validity or enforceability of any Term Document, any ABL Document or
any Notes Document;




     (ii) except as otherwise set forth in the Agreement, any change permitted hereunder in
the time, manner or place of payment of, or in any other terms of, all or any of the Term
Obligations, the ABL Obligations or the Notes Obligations, or any amendment or waiver or
other modification permitted hereunder, whether by course of conduct or otherwise, of the
terms of any Term Document, any ABL Document or any Notes Document;



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     (iii) any exchange of any security interest in any TL Priority Collateral or any
amendment, waiver or other modification permitted hereunder, whether in writing or by course
of conduct or otherwise, of all or any of the Term Obligations, the ABL Obligations or the
Notes Obligations;




     (iv) the commencement of any Insolvency or Liquidation Proceeding in respect of the
Company or any other Grantor; or




     (v) any other circumstances which otherwise might constitute a defense available to, or
a discharge of, the Company or any other Grantor in respect of the Term Obligations, or of
the ABL Collateral Agent or any ABL Secured Party, or of the Notes Collateral Agent or any
Notes Secured Party in respect of this Agreement.


SECTION 17. ABL Priority Collateral.




          17.01. Lien Priorities.



          (a) Relative Priorities. Notwithstanding (i) the time, manner, order or method of
grant, creation, attachment or perfection of any Liens securing the Term Obligations or the Notes
Obligations granted on the ABL Priority Collateral or of any Liens securing the ABL Obligations
granted on the ABL Priority Collateral, (ii) the validity or enforceability of the security
interests and Liens granted in favor of any Collateral Agent or any Secured Party on the ABL
Priority Collateral, (iii) the date on which any ABL Obligations, Term Obligations or Notes
Obligations are extended, (iv) any provision of the UCC or any other applicable law, including any
rule for determining priority thereunder or under any other law or rule governing the relative
priorities of secured creditors, including with respect to real property or fixtures, (v) any
provision set forth in any ABL Document, any Term Document or any Notes Document (other than this
Agreement), (vi) the possession or control by any Collateral Agent or any Secured Party or any
bailee of all or any part of any ABL Priority Collateral as of the date hereof or otherwise, or
(vii) any other circumstance whatsoever, the Term Collateral Agent, on behalf of itself and the
Term Secured Parties, and the Notes Collateral Agent, on behalf of itself and the Notes Secured
Parties, hereby agree that:




     (i) any Lien on the ABL Priority Collateral securing any ABL Obligations now or
hereafter held by or on behalf of the ABL Collateral Agent or any ABL Secured Parties or any
agent or trustee therefor, regardless of how acquired, whether by grant, possession,
statute, operation of law, subrogation or otherwise, shall be senior in all respects and
prior to (x) any Lien on the ABL Priority Collateral securing any of the Term Obligations
and (y) any Lien on the ABL Priority Collateral securing any of the Notes Obligations;




     (ii) any Lien on the ABL Priority Collateral now or hereafter held by or on behalf of
the Term Collateral Agent, any Term Secured Parties, the Notes Collateral Agent, any Notes
Secured Parties or any agent or trustee therefor regardless of how acquired, whether by
grant, possession, statute, operation of law, subrogation or otherwise, shall be junior and
subordinate in all respects to all Liens on the ABL Priority Collateral securing any ABL
Obligations;



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     (iii) any Lien on the ABL Priority Collateral securing any Term Obligations now or
hereafter held by or on behalf of the Term Collateral Agent or any Term Secured Parties or
any agent or trustee therefor, regardless of how acquired, whether by grant, possession,
statute, operation of law, subrogation or otherwise, shall be senior in all respects and
prior to any Lien on the ABL Priority Collateral securing any of the Notes Obligations; and




     (iv) any Lien on the ABL Priority Collateral now or hereafter held by or on behalf of
the Notes Collateral Agent, any Notes Secured Party or any agent or trustee therefor
regardless of how acquired, whether by grant, possession, statute, operation of law,
subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on
the ABL Priority Collateral securing any Term Obligations.


All Liens on the ABL Priority Collateral securing any ABL Obligations shall be and remain senior in
all respects and prior to all Liens on the ABL Priority Collateral securing (x) any Term
Obligations and (y) any Notes Obligations for all purposes, whether or not such Liens securing any
ABL Obligations are subordinated to any Lien securing any other obligation of the Company, any
other Grantor or any other Person. All Liens on the ABL Priority Collateral securing any Term
Obligations shall be and remain senior in all respects and prior to all Liens on the ABL Priority
Collateral securing any Notes Obligations for all purposes, whether or not such Liens securing any
Term Obligations are subordinated to any Lien securing any other obligation of the Company, any
other Grantor or any other Person.




          (b) Prohibition on Contesting Liens. Each of the Term Collateral Agent, for itself
and on behalf of each Term Secured Party, the ABL Collateral Agent, for itself and on behalf of
each ABL Secured Party, and the Notes Collateral Agent, for itself and on behalf of each Notes
Secured Party, agrees that it shall not (and hereby waives any right to) contest or support any
other Person in contesting, in any proceeding (including any Insolvency or Liquidation
Proceeding), (i) the priority, validity or enforceability of a Lien held by or on behalf of any of
the ABL Secured Parties in the ABL Priority Collateral, by or on behalf of any of the Term Secured
Parties in the ABL Priority Collateral or by or on behalf of any of the Notes Secured Parties in
the ABL Priority Collateral, as the case may be, or (ii) the validity or enforceability of any
Term Security Document (or any Term Obligations thereunder), any ABL Security Document (or any ABL
Obligations thereunder) or any Notes Security Document (or any Notes Obligations thereunder);
provided that nothing in this Agreement shall be construed to prevent or impair the rights
of any of the Collateral Agents or any Secured Party to enforce this Agreement, including the
priority of the Liens on the ABL Priority Collateral securing the ABL Obligations, the Term
Obligations and the Notes Obligations as provided in Sections 3.1(a), 3.2(a) and 3.2(b).



          (c) No New Liens. So long as the Discharge of ABL Obligations has not occurred, the
parties hereto agree that the Company or any other Grantor shall not grant or permit any
additional Liens on any asset or property of any Grantor to secure any Term Obligation or Notes
Obligation unless it has granted or contemporaneously grants (x)(i) a First Priority Lien on such
asset or property to secure the ABL Obligations if such asset or property constitutes ABL Priority
Collateral or (ii) a Second Priority Lien on such asset or property to secure the ABL Obligations
if such asset or property constitutes TL Priority Collateral, (y)(i) a



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Second Priority Lien on such asset or property to secure the Term Obligations if such asset
or property constitutes ABL Priority Collateral or (ii) a First Priority Lien on such asset or
property to secure the Term Obligations if such asset or property constitutes TL Priority
Collateral and (z) a Third Priority Lien on such asset or property to secure the Notes
Obligations. To the extent that the provisions of clause (x)(i) in the immediately preceding
sentence are not complied with for any reason, without limiting any other rights and remedies
available to the ABL Collateral Agent and/or the ABL Secured Parties, each of the Term Collateral
Agent, on behalf of Term Secured Parties, and the Notes Collateral Agent, on behalf of the Notes
Secured Parties, agrees that any amounts received by or distributed to any of them pursuant to or
as a result of Liens on the ABL Priority Collateral granted in contravention of such clause (x)(i)
of this Section 3.1(c) shall be subject to Section 3.3.



          (d) Effectiveness of Lien Priorities. Each of the parties hereto acknowledges that
the Lien priorities provided for in this Agreement shall not be affected or impaired in any manner
whatsoever, including, without limitation, on account of: (i) the invalidity, irregularity or
unenforceability of all or any part of the ABL Documents, the Term Documents or the Notes
Documents; (ii) any amendment, change or modification of any ABL Documents, Term Documents or
Notes Documents; or (iii) any impairment, modification, change, exchange, release or subordination
of or limitation on, any liability of, or stay of actions or lien enforcement proceedings against,
Holdings or any of its Subsidiaries party to any of the ABL Documents, the Term Documents or the
Notes Documents, its property, or its estate in bankruptcy resulting from any bankruptcy,
arrangement, readjustment, composition, liquidation, rehabilitation, similar proceeding or
otherwise involving or affecting any Secured Party.



          17.02. Exercise of Remedies.



          (a) So long as the Discharge of ABL Obligations has not occurred, whether or not any
Insolvency or Liquidation Proceeding has been commenced by or against Holdings, the Company or any
other Grantor:




     (i) none of the Term Collateral Agent, the Term Secured Parties, the Notes Collateral
Agent or the Notes Secured Parties (x) will exercise or seek to exercise any rights or
remedies (including, without limitation, setoff) with respect to any ABL Priority Collateral
(including, without limitation, the exercise of any right under any lockbox agreement,
account control agreement, landlord waiver or bailee’s letter or similar agreement or
arrangement in respect of ABL Priority Collateral to which the Term Collateral Agent, any
Term Secured Party, the Notes Collateral Agent or any Notes Secured Party is a party) or
institute or commence or join with any Person (other than the ABL Collateral Agent and the
ABL Secured Parties) in commencing any action or proceeding with respect to such rights or
remedies (including any action of foreclosure, enforcement, collection or execution);
provided, however, that the Term Collateral Agent may exercise any or all
such rights after the passage of a period of 180 days from the date of delivery of a notice
in writing to the ABL Collateral Agent of the Term Collateral Agent’s intention to exercise
its right to take such actions (the “Term Standstill Period”); provided,
further, however, notwithstanding anything herein to the contrary, neither
the Term Collateral Agent nor any Term Secured Party will exercise any rights or remedies



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with respect to any ABL Priority Collateral if, notwithstanding the expiration of the
Term Standstill Period, the ABL Collateral Agent or ABL Secured Parties shall have commenced
the exercise of any of their rights or remedies with respect to all or any portion of the
ABL Priority Collateral (prompt notice of such exercise to be given to the Term Collateral
Agent) and are pursuing the exercise thereof, (y) will contest, protest or object to any
foreclosure proceeding or action brought by the ABL Collateral Agent or any ABL Secured
Party with respect to, or any other exercise by the ABL Collateral Agent or any ABL Secured
Party of any rights and remedies relating to, the ABL Priority Collateral under the ABL
Documents or otherwise, or (z) subject to the rights of the Term Collateral Agent under
clause (i)(x) above, will object to the forbearance by the ABL Collateral Agent or the ABL
Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other
exercise of any rights or remedies relating to the ABL Priority Collateral, in each case so
long as the respective interests of the Term Secured Parties and the Notes Secured Parties
attach to the proceeds thereof subject to the relative priorities described in Section 3.1;
provided, that the Notes Collateral Agent and the Notes Secured Parties will not
object to the forbearance by the Term Collateral Agent or the Term Secured Parties from
bringing or pursuing any foreclosure proceeding or action or any other exercise of any
rights or remedies relating to the ABL Priority Collateral, in each case so long as the
interests of the Notes Secured Parties attach to the proceeds thereof subject to the
relative priorities described in Section 3.1; provided, however, that
nothing in this Section 3.2(a) shall be construed to authorize (A) the Term Collateral
Agent, any Term Secured Party, the Notes Collateral Agent or any Notes Secured Party to sell
any ABL Priority Collateral free of the Lien of the ABL Collateral Agent or any ABL Secured
Party or (B) the Notes Collateral Agent or any Notes Secured Party to sell any ABL Priority
Collateral free of the Lien of the Term Collateral Agent or any Term Secured Party; and




     (ii) the ABL Collateral Agent and the ABL Secured Parties shall have the exclusive
right to enforce rights, exercise remedies (including setoff and the right to credit bid
their debt) and make determinations regarding the disposition of, or restrictions with
respect to, the ABL Priority Collateral without any consultation with or the consent of the
Term Collateral Agent, any Term Secured Party, the Notes Collateral Agent or any Notes
Secured Party; provided, that:




     the Term Collateral Agent may take any action (not adverse to the prior Liens
on the ABL Priority Collateral securing the ABL Obligations, or the rights of any
ABL Collateral Agent or the ABL Secured Parties to exercise remedies in respect
thereof) in order to preserve or protect its Lien on the ABL Priority Collateral;




     the Notes Collateral Agent may take any action (not adverse to the prior Liens
on the ABL Priority Collateral securing the ABL Obligations and the Term
Obligations, or the rights of any ABL Collateral Agent, the ABL Secured Parties, any
Term Collateral Agent or the Term Secured Parties to exercise remedies in respect
thereof) in order to preserve or protect its Lien on the ABL Priority Collateral;



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     the Term Secured Parties and the Notes Secured Parties shall be entitled to
file any necessary responsive or defensive pleadings in opposition to any motion,
claim, adversary proceeding or other pleading made by any person objecting to or
otherwise seeking the disallowance of the claims of the Term Secured Parties or the
Notes Secured Parties, as applicable, including without limitation any claims
secured by the ABL Priority Collateral, if any, in each case in accordance with the
terms of this Agreement;




     the Term Secured Parties and the Notes Secured Parties shall be entitled to
file any pleadings, objections, motions or agreements which assert rights or
interests available to unsecured creditors of the Grantors arising under either the
Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the
terms of this Agreement;




     the Term Secured Parties and the Notes Secured Parties shall be entitled to
vote on any plan of reorganization and file any proof of claim in an Insolvency or
Liquidation Proceeding or otherwise and other filings and make any arguments and
motions that are, in each case, in accordance with the terms of this Agreement, with
respect to the ABL Priority Collateral; and




     the Term Collateral Agent or any Term Secured Party may exercise any of its
rights or remedies with respect to the ABL Priority Collateral after the termination
of the Term Standstill Period to the extent permitted by clause (i)(x) above.



          In exercising rights and remedies with respect to the ABL Priority Collateral, the ABL
Collateral Agent and the ABL Secured Parties may enforce the provisions of the ABL Documents and
exercise remedies thereunder, all in such order and in such manner as they may determine in the
exercise of their sole discretion. Such exercise and enforcement shall include the rights of an
agent appointed by them to sell or otherwise dispose of ABL Priority Collateral upon foreclosure,
to incur expenses in connection with such sale or disposition, and to exercise all the rights and
remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured
creditor under Bankruptcy Laws of any applicable jurisdiction.



          (b) Following the Discharge of ABL Obligations, so long as the Discharge of Term Obligations
has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or
against Holdings, the Company or any other Grantor:




     (i) none of the Notes Collateral Agent and the Notes Secured Parties (x) will exercise
or seek to exercise any rights or remedies (including, without limitation, setoff) with
respect to any ABL Priority Collateral (including, without limitation, the exercise of any
right under any lockbox agreement, account control agreement, landlord waiver or bailee’s
letter or similar agreement or arrangement in respect of ABL Priority Collateral to which
the Notes Collateral Agent or any Notes Secured Party is a party) or institute or commence,
or join with any Person (other than the Term Collateral Agent and the Term Secured Parties)
in commencing any action or proceeding with respect to such rights or remedies (including
any action of foreclosure), enforcement, collection or execution; (y)



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will contest, protest or object to any foreclosure proceeding or action brought by the
Term Collateral Agent or any Term Secured Party with respect to, or any other exercise by
the Term Collateral Agent or any Term Secured Party of any rights and remedies relating to,
the ABL Priority Collateral under the Term Documents or otherwise, or (z) will object to
the forbearance by the Term Collateral Agent or the Term Secured Parties from bringing or
pursuing any foreclosure proceeding or action or any other exercise of any rights or
remedies relating to the ABL Priority Collateral, in each case so long as the respective
interests of the Notes Secured Parties attach to the proceeds thereof subject to the
relative priorities described in Section 3.1; and




     (ii) the Term Collateral Agent and the Term Secured Parties shall have the exclusive
right to enforce rights, exercise remedies (including setoff and the right to credit bid
their debt) and make determinations regarding the disposition of, or restrictions with
respect to, the ABL Priority Collateral without any consultation with or the consent of the
Notes Collateral Agent or any Notes Secured Party; provided, that:




     the Notes Collateral Agent may take any action (not adverse to the prior Liens
on the ABL Priority Collateral securing the Term Obligations, or the rights of any
Term Collateral Agent or the Term Secured Parties to exercise remedies in respect
thereof) in order to preserve or protect its Lien on the ABL Priority Collateral;




     the Notes Secured Parties shall be entitled to file any necessary responsive or
defensive pleadings in opposition to any motion, claim, adversary proceeding or
other pleading made by any person objecting to or otherwise seeking the disallowance
of the claims of the Notes Secured Parties, including without limitation any claims
secured by the ABL Priority Collateral, if any, in each case in accordance with the
terms of this Agreement;




     the Notes Secured Parties shall be entitled to file any pleadings, objections,
motions or agreements which assert rights or interests available to unsecured
creditors of the Grantors arising under either the Bankruptcy Law or applicable
non-bankruptcy law, in each case in accordance with the terms of this Agreement; and




     the Notes Secured Parties shall be entitled to vote on any plan of
reorganization and file any proof of claim in an Insolvency or Liquidation
Proceeding or otherwise and other filings and make any arguments and motions that
are, in each case, in accordance with the terms of this Agreement, with respect to
the ABL Priority Collateral.



          In exercising rights and remedies with respect to the ABL Priority Collateral, the Term
Collateral Agent and the Term Secured Parties may enforce the provisions of the Term Documents and
exercise remedies thereunder, all in such order and in such manner as they may determine in the
exercise of their sole discretion. Such exercise and enforcement shall include the rights of an
agent appointed by them to sell or otherwise dispose of ABL Priority Collateral upon foreclosure,
to incur expenses in connection with such sale or disposition, and to exercise



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all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction
and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.



          (c) Each of the Term Collateral Agent, on behalf of itself and the Term Secured Parties, and
the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees that it will
not take or receive any ABL Priority Collateral or any proceeds of ABL Priority Collateral in
connection with the exercise of any right or remedy (including set-off) with respect to any ABL
Priority Collateral unless and until the Discharge of ABL Obligations has occurred, except as
expressly provided in the proviso in clause (ii) of Section 3.2(a). Following the Discharge of
ABL Obligations, the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties,
agrees that it will not take or receive any ABL Priority Collateral or any proceeds of ABL
Priority Collateral in connection with the exercise of any right or remedy (including setoff) with
respect to any ABL Priority Collateral unless and until the Discharge of Term Obligations has
occurred. Without limiting the generality of the foregoing, (x) unless and until the Discharge of
ABL Obligations has occurred, except as expressly provided in the proviso in clause (ii) of
Section 3.2(a), the sole right of the Term Collateral Agent and the Term Secured Parties with
respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant
to the Term Documents for the period and to the extent granted therein and to receive a share of
the proceeds thereof, if any, after the Discharge of ABL Obligations has occurred in accordance
with the terms hereof, the Term Documents and applicable law and (y) unless and until the
Discharge of ABL Obligations and the Discharge of Term Obligations have occurred, except as
expressly provided in the proviso in clause (ii) of Section 3.2(a) and the proviso in clause (ii)
of Section 3.2(b), the sole right of the Notes Collateral Agent and the Notes Secured Parties with
respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant
to the Notes Documents for the period and to the extent granted therein and to receive a share of
the proceeds thereof, if any, after the Discharge of ABL Obligations and the Discharge of Term
Obligations have occurred in accordance with the terms hereof, the ABL Documents, the Term
Documents and applicable law.



          (d) Subject to the proviso in clause (ii) of Section 3.2(a), the proviso in clause (ii) of
Section 3.2(b):




     (i) the Term Collateral Agent, for itself and on behalf of the Term Secured Parties,
agrees that the Term Collateral Agent and the Term Secured Parties will not take any action
that would hinder any exercise of remedies under the ABL Documents with respect to the ABL
Priority Collateral or is otherwise prohibited hereunder, including any sale, lease,
exchange, transfer or other disposition of the ABL Priority Collateral, whether by
foreclosure or otherwise;




     (ii) the Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties,
agrees that the Notes Collateral Agent and the Notes Secured Parties will not take any
action that would hinder any exercise of remedies under the ABL Documents or the Term
Documents with respect to the ABL Priority Collateral or is otherwise prohibited hereunder,
including any sale, lease, exchange, transfer or other disposition of the ABL Priority
Collateral, whether by foreclosure or otherwise;




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     (iii) the Term Collateral Agent, for itself and on behalf of the Term Secured Parties,
hereby waives any and all rights it or the Term Secured Parties may have as a junior lien
creditor with respect to the ABL Priority Collateral or otherwise to object to the manner in
which the ABL Collateral Agent or the ABL Secured Parties seek to enforce or collect the ABL
Obligations or the Liens granted in any of the ABL Priority Collateral, regardless of
whether any action or failure to act by or on behalf of the ABL Collateral Agent or ABL
Secured Parties is adverse to the interest of the Term Secured Parties; and




     (iv) the Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties,
hereby waives any and all rights it or the Notes Secured Parties may have as a junior lien
creditor with respect to the ABL Priority Collateral or otherwise to object to the manner in
which the ABL Collateral Agent, the ABL Secured Parties, the Term Collateral Agent or the
Term Secured Parties seek to enforce or collect the ABL Obligations or the Term Obligations
or the Liens granted in any of the ABL Priority Collateral, regardless of whether any action
or failure to act by or on behalf of the ABL Collateral Agent, the ABL Secured Parties, the
Term Collateral Agent or the Term Secured Parties is adverse to the interest of the Notes
Secured Parties.



          (e) The Term Collateral Agent hereby acknowledges and agrees that no covenant, agreement or
restriction contained in any Term Document (other than this Agreement) shall be deemed to restrict
in any way the rights and remedies of the ABL Collateral Agent or the ABL Secured Parties with
respect to the ABL Priority Collateral as set forth in this Agreement and the ABL Documents.



          (f) The Notes Collateral Agent hereby acknowledges and agrees that no covenant, agreement or
restriction contained in any Notes Document (other than this Agreement) shall be deemed to
restrict in any way the rights and remedies of the ABL Collateral Agent, the ABL Secured Parties,
the Term Collateral Agent or the Term Secured Parties with respect to the ABL Priority Collateral
as set forth in this Agreement, the ABL Documents and the Term Documents.



          17.03. Payments Over.



          (a) So long as the Discharge of ABL Obligations has not occurred, any ABL Priority Collateral,
cash proceeds thereof or non-cash proceeds not constituting TL Priority Collateral received by the
Term Collateral Agent, the Notes Collateral Agent, any Term Secured Parties or any Notes Secured
Parties in connection with the exercise of any right or remedy (including setoff) relating to the
ABL Priority Collateral in contravention of this Agreement shall be segregated and held in trust
and forthwith paid over to the ABL Collateral Agent for the benefit of the ABL Secured Parties in
the same form as received, with any necessary endorsements or as a court of competent jurisdiction
may otherwise direct. The ABL Collateral Agent is hereby authorized to make any such endorsements
as agent for the Term Collateral Agent, any such Term Secured Parties, the Notes Collateral Agent
or any such Notes Secured Parties. This authorization is coupled with an interest and is
irrevocable until such time as this Agreement is terminated in accordance with its terms.



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          (b) Following the Discharge of ABL Obligations, so long as the Discharge of Term Obligations
has not occurred, any ABL Priority Collateral, cash proceeds thereof or non-cash proceeds received
by the Notes Collateral Agent or any Notes Secured Parties in connection with the exercise of any
right or remedy (including setoff) relating to the ABL Priority Collateral in contravention of
this Agreement shall be segregated and held in trust and forthwith paid over to the Term
Collateral Agent for the benefit of the Term Secured Parties in the same form as received, with
any necessary endorsements or as a court of competent jurisdiction may otherwise direct. The Term
Collateral Agent is hereby authorized to make any such endorsements as agent for the Notes
Collateral Agent or any such Notes Secured Parties. This authorization is coupled with an
interest and is irrevocable until such time as this Agreement is terminated in accordance with its
terms.



          17.04. Other Agreements.



          (a) Releases by ABL Collateral Agent.




     (i) If, in connection with:




     the exercise of any ABL Collateral Agent’s remedies in respect of the ABL Priority
Collateral provided for in Section 3.2(a), including any sale, lease, exchange, transfer or
other disposition of any such ABL Priority Collateral; or




     any sale, lease, exchange, transfer or other disposition of any ABL Priority Collateral
permitted under the terms of the ABL Documents, the Term Documents and the Notes Documents
(whether or not an event of default thereunder, and as defined therein, has occurred and is
continuing),


the ABL Collateral Agent, for itself or on behalf of any of the ABL Secured Parties, releases any
of its Liens on any part of the ABL Priority Collateral other than, in the case of clause (2)
above, (A) in connection with the Discharge of ABL Obligations and (B) after the occurrence and
during the continuance of any event of default under the Term Credit Agreement or the Indenture,
then the Liens, if any, of the Term Collateral Agent, for itself or for the benefit of the Term
Secured Parties, and of the Notes Collateral Agent, for itself or for the benefit of the Notes
Secured Parties, on such ABL Priority Collateral (but not the Proceeds thereof, which shall be
subject to the priorities set forth in this Agreement) shall be automatically, unconditionally and
simultaneously released and the Term Collateral Agent, for itself or on behalf of any such Term
Secured Parties, and the Notes Collateral Agent, for itself or on behalf of any such Notes Secured
Parties, promptly shall execute and deliver to the ABL Collateral Agent or such Grantor such
termination statements, releases and other documents as the ABL Collateral Agent or such Grantor
may request to effectively confirm such release; provided that in the case of clause (a)(i) above,
any proceeds of such disposition shall be applied in accordance with this Agreement.





     (ii) Until the Discharge of ABL Obligations occurs, the Term Collateral Agent, for
itself and on behalf of the Term Secured Parties, and the Notes Collateral Agent, for itself
and an on behalf of the Notes Secured Parties, hereby irrevocably constitute and appoint the
ABL Collateral Agent and any officer or agent of the ABL
Collateral Agent, with full power of substitution, as its true and lawful attorney in
fact



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with full irrevocable power and authority in the place and stead of the Term Collateral
Agent, the Notes Collateral Agent or such holder or in the ABL Collateral Agent’s own name,
from time to time in the ABL Collateral Agent’s discretion, for the purpose of carrying out
the terms of this Section 3.4(a) with respect to ABL Priority Collateral, to take any and
all appropriate action and to execute any and all documents and instruments which may be
necessary to accomplish the purposes of this Section 3.4(a) with respect to ABL Priority
Collateral, including any endorsements or other instruments of transfer or release.




     (iii) Until the Discharge of ABL Obligations occurs, to the extent that the ABL Secured
Parties (a) have released any Lien on ABL Priority Collateral and any such Lien is later
reinstated or (b) obtain any new First Priority Liens on assets constituting ABL Priority
Collateral from Grantors, then the Term Secured Parties shall be granted a Second Priority
Lien on any such ABL Priority Collateral and the Notes Secured Parties shall be grated a
Third Priority Lien on any such ABL Priority Collateral.




     (iv) If, prior to the Discharge of ABL Obligations, a subordination of the ABL
Collateral Agent’s Lien on any ABL Priority Collateral is permitted (or in good faith
believed by the ABL Collateral Agent to be permitted) under the ABL Credit Agreement and the
Term Credit Agreement to another Lien permitted under the ABL Credit Agreement, the Term
Credit Agreement and the Indenture (an “ABL Collateral Priority Lien”), then the ABL
Collateral Agent is authorized to execute and deliver a subordination agreement with respect
thereto in form and substance satisfactory to it, and the Term Collateral Agent, for itself
and on behalf of the Term Secured Parties, and the Notes Collateral Agent for itself and on
behalf of the Notes Secured Parties, shall promptly execute and deliver to the ABL
Collateral Agent an identical subordination agreement subordinating (x) the Liens of the
Term Collateral Agent for the benefit of (and on behalf of) the Term Secured Parties to such
ABL Collateral Priority Lien and (y) the Liens of the Notes Collateral Agent for the benefit
of (and on behalf of) the Notes Secured Parties to such ABL Collateral Priority Lien.



          (b) Releases by Term Collateral Agent.




     (i) Following the Discharge of ABL Obligations, but prior to the Discharge of Term
Obligations, if, in connection with:




     1) the exercise of any Term Collateral Agent’s remedies in respect of the ABL Priority
Collateral provided for in Section 3.2(b), including any sale, lease, exchange, transfer or
other disposition of any such ABL Priority Collateral; or



     2) any sale, lease, exchange, transfer or other disposition of any ABL Priority
Collateral permitted under the terms of the Term Documents and the Notes Documents (whether
or not an event of default thereunder, and as defined therein, has occurred and is
continuing),


the Term Collateral Agent, for itself or on behalf of any of the Term Secured Parties, releases any
of its Liens on any part of the ABL Priority Collateral other than, in the case of clause (2)


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above, (A) in connection with the Discharge of Term Obligations and (B) after the occurrence and
during the continuance of any event of default under the Indenture, then the Liens, if any, of the
Notes Collateral Agent, for itself or for the benefit of the Notes Secured Parties, on such ABL
Priority Collateral (but not the Proceeds thereof, which shall be subject to the priorities set
forth in this Agreement) shall be automatically, unconditionally and simultaneously released and
the Notes Collateral Agent, for itself or on behalf of any such Notes Secured Parties, promptly
shall execute and deliver to the Term Collateral Agent or such Grantor such termination statements,
releases and other documents as the Term Collateral Agent or such Grantor may request to
effectively confirm such release; provided that in the case of clause (b)(i) above, any proceeds of
such disposition shall be applied in accordance with this Agreement.





     (ii) Following the Discharge of ABL Obligations and until the Discharge of Term
Obligations occurs, the Notes Collateral Agent, for itself and on behalf of the Notes
Secured Parties, hereby irrevocably constitutes and appoints the Term Collateral Agent and
any officer or agent of the Term Collateral Agent, with full power of substitution, as its
true and lawful attorney in fact with full irrevocable power and authority in the place and
stead of the Notes Collateral Agent or such holder or in the Term Collateral Agent’s own
name, from time to time in the Term Collateral Agent’s discretion, for the purpose of
carrying out the terms of this Section 3.4(b) with respect to ABL Priority Collateral, to
take any and all appropriate action and to execute any and all documents and instruments
which may be necessary to accomplish the purposes of this Section 3.4(b) with respect to ABL
Priority Collateral, including any endorsements or other instruments of transfer or release.




     (iii) Following the Discharge of ABL Obligations and until the Discharge of Term
Obligations occurs, to the extent that the Term Secured Parties (a) have released any Lien
on ABL Priority Collateral and any such Lien is later reinstated or (b) obtain any new
Second Priority Liens on assets constituting ABL Priority Collateral from Grantors, then the
Notes Secured Parties shall be granted a Third Priority Lien on any such ABL Priority
Collateral.




     (iv) If, prior to the Discharge of Term Obligations, a subordination of the Term
Collateral Agent’s Lien on any ABL Priority Collateral is permitted (or in good faith
believed by the Term Collateral Agent to be permitted) under the Term Credit Agreement to
another Lien permitted under the Term Credit Agreement and the Indenture (a “Subsequent
ABL Collateral Priority Lien”), then the Term Collateral Agent is authorized to execute
and deliver a subordination agreement with respect thereto in form and substance
satisfactory to it, and the Notes Collateral Agent, for itself and on behalf of the Notes
Secured Parties, shall promptly execute and deliver to the Term Collateral Agent an
identical subordination agreement subordinating the Liens of the Notes Collateral Agent for
the benefit of (and on behalf of) the Notes Secured Parties to such Subsequent Term
Collateral Priority Lien.



          (c) Insurance. Unless and until the Discharge of ABL Obligations has occurred, the
ABL Collateral Agent and the ABL Secured Parties shall have the sole and
exclusive right, subject to the rights of the Grantors under the ABL Documents, to adjust
settlement for any insurance policy covering the ABL Priority Collateral in the event of any



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loss
thereunder and to approve any award granted in any condemnation or similar proceeding (or any deed
in lieu of condemnation) in respect of the ABL Priority Collateral. Following the Discharge of
ABL Obligations, unless and until the Discharge of Term Obligations has occurred, the Term
Collateral Agent and the Term Secured Parties shall have the sole and exclusive right, subject to
the rights of the Grantors under the Term Documents, to adjust settlement for any insurance policy
covering the ABL Priority Collateral in the event of any loss thereunder and to approve any award
granted in any condemnation or similar proceeding (or any deed in lieu of condemnation) in respect
of the ABL Priority Collateral.



          (d) Amendments to Term Security Documents or Notes Security Documents.




     (i) Without the prior written consent of the ABL Collateral Agent, no Term Security
Document or Notes Security Document may be amended, supplemented or otherwise modified or
entered into to the extent such amendment, supplement or modification, or the terms of any
new Term Document or new Notes Document, would contravene the provisions of this Agreement.
Grantors agree that each Term Security Document and Notes Security Document (other than (x)
any mortgage, deed of trust or similar security document relating to real property and
fixtures thereon and (y) any Term Security Document and Notes Security Document where the
party or parties granting security interests thereunder are not parties hereto, as
contemplated by Section 6.19) shall include the following language (with any necessary
modifications to give effect to applicable definitions) (or language to similar effect
approved by the ABL Collateral Agent):




“Notwithstanding anything herein to the contrary, the liens and security interests
granted to [the Term Collateral Agent] [the Notes Collateral Agent] pursuant to this
Agreement in any ABL Priority Collateral and the exercise of any right or remedy by
[the Term Collateral Agent] [the Notes Collateral Agent] with respect to any ABL
Priority Collateral hereunder are subject to the provisions of the Intercreditor
Agreement, dated as of [April 12, 2006] [March 18, 2009] (as amended, restated,
supplemented or otherwise modified from time to time, the “Intercreditor
Agreement”), among DHM HOLDING COMPANY, INC., a Delaware corporation, DOLE
HOLDING COMPANY, LLC, a Delaware limited liability company, DOLE FOOD COMPANY, INC.,
a Delaware corporation (the “Company”), the other GRANTORS from time to time
party thereto, DEUTSCHE BANK AG NEW YORK BRANCH, as ABL Collateral Agent, DBAG, as
Term Collateral Agent, [U.S. BANK NATIONAL ASSOCIATION, as Notes Collateral Agent],
and certain other persons party or that may become party thereto from time to time.
In the event of any conflict between the terms of the Intercreditor Agreement and
this Agreement, the terms of the Intercreditor Agreement shall govern and control.”




     (ii) In the event any ABL Collateral Agent or the ABL Secured Parties and the relevant
Grantor enter into any amendment, waiver or consent in respect of any of the ABL Security
Documents for the purpose of adding to, or deleting from, or waiving or
consenting to any departures from any provisions of, any ABL Security Document or
changing in any manner the rights of the ABL Collateral Agent, such ABL Secured



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Parties, the
Company or any other Grantor thereunder, in each case with respect to or relating to the ABL
Priority Collateral, then such amendment, waiver or consent shall apply automatically to any
comparable provision of (x) the Comparable Term Security Document without the consent of the
Term Collateral Agent or the Term Secured Parties and without any action by the Term
Collateral Agent, the Company or any other Grantor and (y) the Comparable Notes Security
Document without the consent of the Notes Collateral Agent or the Notes Secured Parties and
without any action by the Notes Collateral Agent, the Company or any other Grantor,
provided that (A) no such amendment, waiver or consent shall have the effect of (i)
removing assets that constitute ABL Priority Collateral subject to the Lien of the Term
Security Documents or the Notes Security Documents, except to the extent that a release of
such Lien is permitted or required by Section 3.4(a) and provided that there is a
corresponding release of such Lien securing the ABL Obligations, (ii) imposing duties on the
Term Collateral Agent or the Notes Collateral Agent without its consent or (iii) permitting
other liens on the ABL Priority Collateral not permitted under the terms of the Term
Documents, the Notes Documents or Section 3.5 and (B) notice of such amendment, waiver or
consent shall have been given to the Term Collateral Agent and the Notes Collateral Agent
within ten (10) Business Days after the effective date of such amendment, waiver or consent.




     (iii) Following the Discharge of ABL Obligations, in the event any Term Collateral
Agent or the Term Secured Parties and the relevant Grantor enter into any amendment, waiver
or consent in respect of any of the Term Security Documents for the purpose of adding to, or
deleting from, or waiving or consenting to any departures from any provisions of, any Term
Security Document or changing in any manner the rights of the Term Collateral Agent, such
Term Secured Parties, the Company or any other Grantor thereunder, in each case with respect
to or relating to the ABL Priority Collateral, then such amendment, waiver or consent shall
apply automatically to any comparable provision of the Comparable Notes Security Document
without the consent of the Notes Collateral Agent or the Notes Secured Parties and without
any action by the Notes Collateral Agent, the Company or any other Grantor, provided
that (A) no such amendment, waiver or consent shall have the effect of (i) removing assets
that constitute ABL Priority Collateral subject to the Lien of the Notes Security Documents,
except to the extent that a release of such Lien is permitted or required by Section 3.4(b)
and provided that there is a corresponding release of such Lien securing the Term
Obligations, (ii) imposing duties on the Notes Collateral Agent without its consent or (iii)
permitting other liens on the ABL Priority Collateral not permitted under the terms of the
Notes Documents or Section 2.5 and (B) notice of such amendment, waiver or consent shall
have been given to the Notes Collateral Agent within ten (10) Business Days after the
effective date of such amendment, waiver or consent.



          (e) Rights As Unsecured Creditors. Except as otherwise set forth in Section 3.1 and
the Notes Documents, the Term Collateral Agent, the Term Secured Parties, the Notes Collateral
Agent and the Notes Secured Parties may exercise rights and remedies as unsecured creditors
against the Company or any other Grantor that has guaranteed the Term Obligations or the Notes
Obligations in accordance with the terms of the Term Documents, the Notes
Documents and applicable law. Except as otherwise set forth in Section 3.1, nothing in this
Agreement shall prohibit the receipt by the Term Collateral Agent, any Term Secured Parties,



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the
Notes Collateral Agent or any Notes Secured Parties of the required payments of interest,
principal and other amounts in respect of the Term Obligations and Notes Obligations, as
applicable, so long as such receipt is not the direct or indirect result of the exercise by the
Term Collateral Agent, any Term Secured Parties, the Notes Collateral Agent or any Notes Secured
Parties of rights or remedies as a secured creditor (including set off) in respect of the ABL
Priority Collateral or enforcement in contravention of this Agreement of any Lien held by any of
them.



          (f) Bailee for Perfection.




     (i) The ABL Collateral Agent agrees to hold that part of the ABL Priority Collateral
that is in its possession or control (or in the possession or control of its agents or
bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon
under the UCC (such ABL Priority Collateral being the “Pledged ABL Priority
Collateral”) as collateral agent for the ABL Secured Parties and as bailee for and, with
respect to any collateral that cannot be perfected in such manner, as agent for, the Term
Collateral Agent (on behalf of the Term Secured Parties) and the Notes Collateral Agent (on
behalf of the Notes Secured Parties) and any assignee thereof and act as such agent under
all control agreements relating to the Pledged ABL Priority Collateral, in each case solely
for the purpose of perfecting the security interest granted under the ABL Credit Documents,
the Term Documents and the Notes Documents, as applicable, subject to the terms and
conditions of this Section 3.4(f). Following the Discharge of ABL Obligations, the Term
Collateral Agent agrees to hold the Pledged ABL Priority Collateral as collateral agent for
the Term Secured Parties and as bailee for and, with respect to any collateral that cannot
be perfected in such manner, as agent for, the Notes Collateral Agent (on behalf of the
Notes Secured Parties) and any assignee thereof solely for the purpose of perfecting the
security interest granted under the Term Documents and the Notes Documents, as applicable,
subject to the terms and conditions of this Section 3.4(f). As security for the payment and
performance in full of all the Notes Obligations and Term Obligations each Grantor hereby
grants to the ABL Collateral Agent for the benefit of the Notes Secured Parties and the Term
Secured Parties a lien on and security interest in all of the right, title and interest of
such Grantor, in and to and under the Pledged ABL Priority Collateral wherever located and
whether now existing or hereafter arising or acquired from time to time. As security for the
payment and performance in full of all the Notes Obligations, each Grantor hereby grants to
the Term Collateral Agent for the benefit of the Notes Secured Parties a lien on and
security interest in all of the right, title and interest of such Grantor, in and to and
under the Pledged ABL Priority Collateral wherever located and whether now existing or
hereafter arising or acquired from time to time.




     (ii) Subject to the terms of this Agreement, (x) until the Discharge of ABL Obligations
has occurred, the ABL Collateral Agent shall be entitled to deal with the Pledged ABL
Priority Collateral in accordance with the terms of the ABL Documents as if the Liens of the
Term Collateral Agent under the Term Security Documents and the Liens of the Notes
Collateral Agent under the Notes Security Documents did not exist
and (y) following the Discharge of ABL Obligations and until the Discharge of Term
Obligations has occurred, the Term Collateral Agent shall be entitled to deal with the



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Pledged ABL Priority Collateral in accordance with the terms of the Term Documents as if the
Liens of the Notes Collateral Agent under the Notes Security Documents did not exist. The
rights of the Term Collateral Agent and the Notes Collateral Agent shall at all times be
subject to the terms of this Agreement and to the ABL Collateral Agent’s rights under the
ABL Documents.




     (iii) The ABL Collateral Agent shall have no obligation whatsoever to any ABL Secured
Party, the Term Collateral Agent, any Term Secured Party, the Notes Collateral Agent or any
Notes Secured Party to ensure that the Pledged ABL Priority Collateral is genuine or owned
by any of the Grantors or to preserve rights or benefits of any Person except as expressly
set forth in this Section 3.4(f). The duties or responsibilities of the ABL Collateral
Agent under this Section 3.4(f) shall be limited solely to holding the Pledged ABL Priority
Collateral as bailee or agent in accordance with this Section 3.4(f). The Term Collateral
Agent shall have no obligation whatsoever to any Term Secured Party, the Notes Collateral
Agent or any Notes Secured Party to ensure that the Pledged ABL Priority Collateral is
genuine or owned by any of the Grantors or to preserve rights or benefits of any Person
except as expressly set forth in this Section 3.4(f). The duties or responsibilities of the
Term Collateral Agent under this Section 3.4(f) shall be limited solely to holding the
Pledged ABL Priority Collateral as bailee or agent in accordance with this Section 3.4(f).




     (iv) The ABL Collateral Agent acting pursuant to this Section 3.4(f) shall not have by
reason of the ABL Security Documents, the Term Security Documents, the Notes Security
Documents, this Agreement or any other document a fiduciary relationship in respect of any
ABL Secured Party, the Term Collateral Agent, any Term Secured Party, the Notes Collateral
Agent or any Notes Secured Party. The Term Collateral Agent acting pursuant to this Section
3.4(f) shall not have by reason of the Term Security Documents, the Notes Security
Documents, this Agreement or any other document a fiduciary relationship in respect of any
Term Secured Party, the Notes Collateral Agent or any Notes Secured Party.




     (v) Upon the Discharge of ABL Obligations under the ABL Documents to which the ABL
Collateral Agent is a party, the ABL Collateral Agent shall deliver or cause to be delivered
the remaining Pledged ABL Priority Collateral (if any) in its possession or in the
possession of its agents or bailees, together with any necessary endorsements, first, to the
Term Collateral Agent to the extent Term Obligations remain outstanding, second, to the
Notes Collateral Agent to the extent Notes Obligations remain outstanding, and third, to the
applicable Grantor to the extent no ABL Obligations, Term Obligations or Notes Obligations
remain outstanding (in each case, so as to allow such Person to obtain control of such
Pledged ABL Priority Collateral) and will cooperate with the Term Collateral Agent or Notes
Collateral Agent, as applicable, in assigning (without recourse to or warranty by the ABL
Collateral Agent or any ABL Secured Party or agent or bailee thereof) control over any other
Pledged ABL Priority Collateral under its control. The ABL Collateral Agent further agrees
to take all other action reasonably requested by such Person in connection with such Person
obtaining a first priority interest
in the Pledged ABL Priority Collateral or as a court of competent jurisdiction may
otherwise direct. Following the Discharge of ABL Obligations and upon the Discharge



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of Term
Obligations under the Term Documents to which the Term Collateral Agent is a party, the Term
Collateral Agent shall deliver or cause to be delivered the remaining Pledged ABL Priority
Collateral (if any) in its possession or in the possession of its agents or bailees,
together with any necessary endorsements, first, to the Notes Collateral Agent to the extent
Notes Obligations remain outstanding, and second, to the applicable Grantor to the extent no
Term Obligations or Notes Obligations remain outstanding (in each case, so as to allow such
Person to obtain control of such Pledged ABL Priority Collateral) and will cooperate with
the Notes Collateral Agent in assigning (without recourse to or warranty by the Term
Collateral Agent or any Term Secured Party or agent or bailee thereof) control over any
other Pledged ABL Priority Collateral under its control. The Term Collateral Agent further
agrees to take all other action reasonably requested by such Person in connection with such
Person obtaining a first priority interest in the Pledged ABL Priority Collateral or as a
court of competent jurisdiction may otherwise direct.




     (vi) Notwithstanding anything to the contrary herein, if, for any reason, any Term
Obligations remain outstanding upon the Discharge of ABL Obligations, all rights of the ABL
Collateral Agent hereunder and under the Term Security Documents, the ABL Security Documents
or the Notes Security Documents (1) with respect to the delivery and control of any part of
the ABL Priority Collateral, and (2) to direct, instruct, vote upon or otherwise influence
the maintenance or disposition of such ABL Priority Collateral, shall immediately, and (to
the extent permitted by law) without further action on the part of either of the Term
Collateral Agent, the ABL Collateral Agent or the Notes Collateral Agent, pass to the Term
Collateral Agent, who shall thereafter hold such rights for the benefit of the Term Secured
Parties and as bailee for and, with respect to any collateral that cannot be perfected in
such manner, as agent for, the Notes Secured Parties. Each of the ABL Collateral Agent and
the Grantors agrees that it will, if any Term Obligations or Notes Obligations remain
outstanding upon the Discharge of ABL Obligations, take any other action required by any law
or reasonably requested by the Term Collateral Agent or the Notes Collateral Agent, in
connection with the Term Collateral Agent’s establishment and perfection of a First Priority
security interest in the ABL Priority Collateral and the Notes Collateral Agent’s
establishment and perfection of a Second Priority security interest in the ABL Priority
Collateral.




     (vii) Notwithstanding anything to the contrary contained herein, if for any reason,
prior to the Discharge of Term Obligations, the ABL Collateral Agent or the Notes Collateral
Agent acquires possession of any Pledged Term Priority Collateral, the ABL Collateral Agent
or the Notes Collateral Agent shall hold same as bailee and/or agent to the same extent as
is provided in preceding clause (i) with respect to Pledged ABL Priority Collateral,
provided that as soon as is practicable the ABL Collateral Agent or the Notes
Collateral Agent shall deliver or cause to be delivered such Pledged Term Priority
Collateral to the Term Collateral Agent in a manner otherwise consistent with the
requirements of preceding clause (v).



          (g) When Discharge of ABL Obligations Deemed to Not Have Occurred. Notwithstanding
anything to the contrary herein, if at any time after the Discharge of ABL Obligations has
occurred (or concurrently therewith) the Company or any other Grantor



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immediately thereafter (or
concurrently therewith) enters into any Permitted Refinancing of any ABL Obligations, then such
Discharge of ABL Obligations shall automatically be deemed not to have occurred for all purposes
of this Agreement (other than with respect to any actions taken prior to the date of such
designation as a result of the occurrence of such first Discharge of ABL Obligations), and the
obligations under the Permitted Refinancing shall automatically be treated as ABL Obligations for
all purposes of this Agreement, including for purposes of the Lien priorities and rights in
respect of Collateral set forth herein, the term “ABL Credit Agreement” shall be deemed
appropriately modified to refer to such Permitted Refinancing and the ABL Collateral Agent under
such ABL Documents shall be a ABL Collateral Agent for all purposes hereof and the new secured
parties under such ABL Documents shall automatically be treated as ABL Secured Parties for all
purposes of this Agreement. Upon receipt of a notice stating that the Company or any other
Grantor has entered into a new ABL Document in respect of a Permitted Refinancing of ABL
Obligations (which notice shall include the identity of the new collateral agent, such agent, the
“New ABL Agent”), and delivery by the New ABL Agent of an Intercreditor Agreement Joinder,
the Term Collateral Agent and the Notes Collateral Agent shall promptly (i) enter into such
documents and agreements (including amendments or supplements to this Agreement) as the Company or
such New ABL Agent shall reasonably request in order to provide to the New ABL Agent the rights
contemplated hereby, in each case consistent in all material respects with the terms of this
Agreement and (ii) deliver to the New ABL Agent any Pledged ABL Priority Collateral held by the
Term Collateral Agent or the Notes Collateral Agent together with any necessary endorsements (or
otherwise allow the New ABL Agent to obtain control of such Pledged ABL Priority Collateral). The
New ABL Agent shall agree to be bound by the terms of this Agreement. If the new ABL Obligations
under the new ABL Documents are secured by assets of the Grantors of the type constituting ABL
Priority Collateral that do not also secure the Term Obligations and the Notes Obligations, then
the Term Obligations shall be secured at such time by a Second Priority Lien on such assets to the
same extent provided in the Term Security Documents with respect to the other ABL Priority
Collateral and the Notes Obligations shall be secured at such time by a Third Priority Lien on
such assets to the same extent provided in the Notes Security Documents with respect to the other
ABL Priority Collateral. If the new ABL Obligations under the new ABL Documents are secured by
assets of the Grantors of the type constituting TL Priority Collateral that do not also secure the
Term Obligations and the Notes Obligations, then the Term Obligations shall be secured at such
time by a First Priority Lien on such assets to the same extent provided in the Term Security
Documents with respect to the other TL Priority Collateral and the Notes Obligations shall be
secured at such time by a Third Priority Lien on such assets to the same extent provided in the
Notes Security Documents with respect to the other TL Priority Collateral.



          (h) Option to Purchase ABL Obligations.




     (i) Without prejudice to the enforcement of remedies by the ABL Collateral Agent and
the ABL Secured Parties, any Person or Persons (in each case who must meet all eligibility
standards contained in all relevant ABL Documents) at any time or from time to time
designated by the holders of more than 50% in aggregate outstanding
principal amount of the Term Obligations under the Term Credit Agreement as being
entitled to exercise all default purchase options as to the Term Obligations then
outstanding (an “Eligible Term Purchaser”) shall have the right to purchase by way
of



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assignment (and shall thereby also assume all commitments and duties of the Term Secured
Parties), at any time during the exercise period described in clause (iii) below of this
Section 3.4(h), all, but not less than all, of the ABL Obligations (other than the ABL
Obligations of a Defaulting ABL Secured Party (as defined below)), including all principal
of and accrued and unpaid interest and fees on and all prepayment or acceleration penalties
and premiums in respect of all ABL Obligations outstanding at the time of purchase;
provided, that at the time of (and as a condition to) any purchase pursuant to this
Section 3.4(h), all commitments pursuant to any then outstanding ABL Credit Agreement shall
have terminated in accordance with their terms. Any purchase pursuant to this Section
3.4(h)(i) shall be made as follows:




     for (x) a purchase price equal to the sum of (A) in the case of all loans, advances or
other similar extensions of credit that constitute ABL Obligations (including unreimbursed
amounts drawn in respect of letters of credit, but excluding the undrawn amount of then
outstanding letters of credit), 100% of the principal amount thereof and all accrued and
unpaid interest thereon through the date of purchase (without regard, however, to
any acceleration or other prepayment penalties or premiums other than customary breakage
costs), plus (B) all accrued and unpaid fees, expenses, indemnities and other amounts
through the date of purchase; and (y) an obligation on the part of the respective Eligible
Term Purchasers (which shall be expressly provided in the assignment documentation described
below) to reimburse each issuing lender and bank guaranty issuer (or any ABL Secured Party
required to pay same) for all amounts thereafter drawn with respect to any letters of credit
and any bank guaranties constituting ABL Obligations which remain outstanding after the date
of any purchase pursuant to this Section 3.4, together with all facing fees and other
amounts which may at any future time be owing to the respective issuing lender or bank
guaranty issues with respect to such letters of credit and bank guaranties;




     with the purchase price described in preceding clause (i)(1)(x) payable in cash on the
date of purchase against transfer to the respective Eligible Term Purchaser or Eligible Term
Purchasers (without recourse and without any representation or warranty whatsoever, whether
as to the enforceability of any ABL Obligation or the validity, enforceability, perfection,
priority or sufficiency of any Lien securing, or guarantee or other supporting obligation
for, any ABL Obligation or as to any other matter whatsoever, except the representation and
warranty that the transferor owns free and clear of all Liens and encumbrances (other than
participation interests not prohibited by the ABL Credit Agreement, in which case the
purchase price described in preceding clause (i)(1)(x) shall be appropriately adjusted so
that the Eligible Term Purchaser or Eligible Term Purchasers do not pay amounts represented
by any participation interest which remains in effect), and has the right to convey,
whatever claims and interests it may have in respect of the ABL Obligations);
provided that the purchase price in respect of any outstanding letter of credit that
remains undrawn on the date of purchase shall be payable in cash as and when such letter of
credit is drawn upon (i) first, from the cash collateral account described in clause
(a)(3) below, until the amounts contained therein have been
exhausted, and (ii) thereafter, directly by the respective Eligible Term Purchaser or
Eligible Term Purchasers;



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     with such purchase accompanied by a deposit of cash collateral under the sole dominion
and control of the ABL Collateral Agent or its designee in an amount equal to 110% of the
sum of the aggregate undrawn amount of all then outstanding letters of credit and bank
guaranties pursuant to the ABL Documents and the aggregate facing and similar fees which
will accrue thereon through the stated maturity of the letters of credit and bank guaranties
(assuming no drawings thereon before stated maturity), as security for the respective
Eligible Term Purchaser’s or Eligible Term Purchasers’ obligation to pay amounts as provided
in preceding clause (i)(l)(y), it being understood and agreed that (x) at the time any
facing or similar fees are owing to an issuer with respect to any letter of credit, the ABL
Collateral Agent may apply amounts deposited with it as described above to pay same and (y)
upon any drawing under any letter of credit, the ABL Collateral Agent shall apply amounts
deposited with it as described above to repay the respective unpaid drawing. After giving
effect to any payment made as described above in this clause (3), those amounts (if any)
then on deposit with the ABL Collateral Agent as described in this clause (3) which exceed
110% of the sum of the aggregate undrawn amount of all then outstanding letters of credit
and bank guaranties and the aggregate facing and similar fees (to the respective issuers)
which will accrue thereon through the stated maturity of the then outstanding letters of
credit and bank guaranties (assuming no drawings thereon before stated maturity), shall be
returned to the respective Eligible Term Purchaser or Eligible Term Purchasers (as their
interests appear). Furthermore, at such time as all letters of credit and bank guaranties
have been cancelled, expired or been fully drawn, as the case may be, and after all
applications described above have been made, any excess cash collateral deposited as
described above in this clause (3) (and not previously applied or released as provided
above) shall be returned to the respective Eligible Term Purchaser or Eligible Term
Purchasers, as their interests appear;




     with the purchase price described in preceding clause (i)(1)(x) accompanied by a waiver
by the Term Collateral Agent (on behalf of itself and the other Term Secured Parties) of all
claims arising out of this Agreement and the transactions contemplated hereby as a result of
exercising the purchase option contemplated by this Section 3.4(h);




     with all amounts payable to the various ABL Secured Parties in respect of the
assignments described above to be distributed to them by the ABL Collateral Agent in
accordance with their respective holdings of the various ABL Obligations; and



     with such purchase to be made pursuant to assignment documentation in form and
substance reasonably satisfactory to, and prepared by counsel for, the ABL Collateral Agent
(with the cost of such counsel to be paid by the Grantors or, if the Grantors do not make
such payment, by the respective Eligible Term Purchaser or Eligible Term Purchasers, who
shall have the right to obtain reimbursement of same from the Grantors); it being understood
and agreed that the ABL Collateral Agent and each other ABL Secured Party shall retain all
rights to indemnification as provided in the relevant ABL Documents for all periods prior to
any assignment by them pursuant to the provisions of this Section 3.4(h). The relevant
assignment documentation shall also provide that, if for
any reason (other than the gross negligence or willful misconduct of the ABL Collateral
Agent (as determined by a court of competent jurisdiction in a final and non-appealable
judgment)), the amount of cash collateral held by the ABL Collateral Agent or its



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designee
pursuant to preceding clause (a)(3) is at any time less than the full amounts owing with
respect to any letter of credit described above (including facing and similar fees) then the
respective Eligible Term Purchaser or Eligible Term Purchasers shall promptly reimburse the
ABL Collateral Agent (who shall pay the respective issuing bank) the amount of deficiency.




     (ii) The right to exercise the purchase option described in Section 3.4(h)(i) above
shall be exercisable and legally enforceable upon at least ten (10) Business Days’ prior
written notice of exercise (which notice, once given, shall be irrevocable and fully binding
on the respective Eligible Term Purchaser or Eligible Term Purchasers) given to the ABL
Collateral Agent by an Eligible Term Purchaser. Neither the ABL Collateral Agent nor any
ABL Secured Party shall have any disclosure obligation to any Eligible Term Purchaser, the
Term Collateral Agent or any Term Secured Party in connection with any exercise of such
purchase option.




     (iii) The right to purchase the ABL Obligations as described in this Section 3.4(h) may
be exercised (by giving the irrevocable written notice described in preceding clause (ii))
during the period that (1) begins on the date occurring three Business Days after the first
to occur of (x) the date of the acceleration of the final maturity of the loans under the
ABL Credit Agreement, (y) the occurrence of the final maturity of the loans under the ABL
Credit Agreement or (z) the occurrence of an Insolvency or Liquidation Proceeding with
respect to the Company or any other Grantor which constitutes an event of default under the
ABL Credit Agreement (in each case, so long as the acceleration, failure to pay amounts due
at final maturity or such Insolvency or Liquidation Proceeding constituting an event of
default has not been rescinded or cured within such 10 Business Day period, and so long as
any unpaid amounts constituting ABL Obligations remain owing); provided that if there is any
failure to meet the condition described in the proviso of preceding clause (i) hereof, the
aforementioned date shall be extended until the first date upon which such condition is
satisfied, and (2) ends on the 90th day after the start of the period described in clause
(1) above.




     (iv) The obligations of the ABL Secured Parties to sell their respective ABL
Obligations under this Section 3.4(h) are several and not joint and several, To the extent
any ABL Secured Party breaches its obligation to sell its ABL Obligations under this Section
3.4(h) (a “Defaulting ABL Secured Party”), nothing in this Section 3.4(h) shall be
deemed to require the ABL Collateral Agent or any other ABL Secured Party to purchase such
Defaulting ABL Secured Party’s ABL Obligations for resale to the holders of Term Obligations
and in all cases, the ABL Collateral Agent and each ABL Secured Party complying with the
terms of this Section 3.4(h) shall not be deemed to be in default of this Agreement or
otherwise be deemed liable for any action or inaction of any Defaulting ABL Secured Party;
provided that nothing in this clause (iv) shall require any Eligible Term Purchaser
to purchase less than all of the ABL Obligations.




     (v) Each Grantor irrevocably consents to any assignment effected to one or more
Eligible Term Purchasers pursuant to this Section 3.4(h) (so long as they meet all
eligibility standards contained in all relevant Term Documents, other than obtaining the
consent of any Grantor to an assignment to the extent required by such ABL Documents)



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for
purposes of all Term Documents and hereby agrees that no further consent from such Grantor
shall be required.



          17.05. Insolvency or Liquidation Proceedings.



          (a) Finance and Sale Issues.




     (i) Until the Discharge of ABL Obligations has occurred, if the Company or any other
Grantor shall be subject to any Insolvency or Liquidation Proceeding and the ABL Collateral
Agent shall desire to permit the use of cash collateral constituting ABL Priority Collateral
on which the ABL Collateral Agent or any other creditor has a Lien or to permit the Company
or any other Grantor to obtain a DIP Financing, then the Term Collateral Agent, on behalf of
itself and the Term Secured Parties, and the Notes Collateral Agent, on behalf of itself and
the Notes Secured Parties, agree that they will raise no objection to such use of cash
collateral constituting ABL Priority Collateral or to the fact that such DIP Financing may
be granted Liens on the ABL Priority Collateral and will not request adequate protection or
any other relief in connection therewith (except, as expressly agreed by the ABL Collateral
Agent or to the extent permitted by Section 3.5(c)) and, to the extent the Liens on the ABL
Priority Collateral securing the ABL Obligations are subordinated or pari
passu with the Liens on the ABL Priority Collateral securing such DIP Financing, the
Term Collateral Agent and the Notes Collateral Agent will subordinate their Liens in the ABL
Priority Collateral to the Liens securing such DIP Financing (and all obligations relating
thereto). The Term Collateral Agent, on behalf of the Term Secured Parties, and the Notes
Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that it will not
raise any objection or oppose a sale or other disposition of any ABL Priority Collateral
free and clear of its Liens (subject to attachment of proceeds with respect to the Second
Priority Lien on the ABL Priority Collateral in favor of the Term Collateral Agent and the
Third Priority Lien on the ABL Priority Collateral in favor of the Notes Collateral Agent in
the same order and manner as otherwise set forth herein) or other claims under Section 363
of the Bankruptcy Code if the ABL Secured Parties have consented to such sale or disposition
of such assets.




     (ii) Following the Discharge of ABL Obligations and until the Discharge of Term
Obligations has occurred, if the Company or any other Grantor shall be subject to any
Insolvency or Liquidation Proceeding and the Term Collateral Agent shall desire to permit
the Company or any other Grantor to obtain a DIP Financing, then the Notes Collateral Agent,
on behalf of itself and the Notes Secured Parties, agrees that it will raise no objection to
such use of cash collateral constituting ABL Priority Collateral or to the fact that such
DIP Financing may be granted Liens on the ABL Priority Collateral and will not request
adequate protection or any other relief in connection therewith (except, as expressly,
agreed by the Term Collateral Agent or to the extent permitted by Section
3.5(c)) and, to the extent the Liens on the ABL Priority Collateral securing the Term
Obligations are subordinated or pari passu with the Liens on the ABL
Priority Collateral securing such DIP Financing, the Notes Collateral Agent will subordinate
its Liens in the ABL Priority Collateral to the Liens securing such DIP Financing (and all
obligations relating thereto). Following the Discharge of ABL Obligations, the Notes
Collateral Agent, on behalf of the Notes Secured Parties, agrees that it will not raise any
objection



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or oppose a sale or other disposition of any ABL Priority Collateral free and
clear of its Liens (subject to attachment of proceeds with respect to the Third Priority
Lien on the ABL Priority Collateral in favor of the Notes Collateral Agent in the same order
and manner as otherwise set forth herein) or other claims under Section 363 of the
Bankruptcy Code if the Term Secured Parties have consented to such sale or disposition of
such assets.



          (b) Relief from the Automatic Stay. Until the Discharge of ABL Obligations has
occurred, the Term Collateral Agent, on behalf of itself and the Term Secured Parties, and the
Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that none of them
shall seek relief from the automatic stay or any other stay in any Insolvency or Liquidation
Proceeding in respect of the ABL Priority Collateral, without the prior written consent of the ABL
Collateral Agent. Following the Discharge of ABL Obligations, until the Discharge of Term
Obligations has occurred, the Notes Collateral Agent, on behalf of itself and the Notes Secured
Parties, agrees that none of them shall seek relief from the automatic stay or any other stay in
any Insolvency or Liquidation Proceeding in respect of the ABL Priority Collateral without the
prior written consent of the Term Collateral Agent.



          (c) Adequate Protection.




     (i) The Term Collateral Agent, on behalf of itself and the Term Secured Parties, and
the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that
none of them shall contest (or support any other person contesting) (i) any request by the
ABL Collateral Agent or the ABL Secured Parties for adequate protection with respect to any
ABL Priority Collateral or (ii) any objection by the ABL Collateral Agent or the ABL Secured
Parties to any motion, relief, action or proceeding based on the ABL Collateral Agent or the
ABL Secured Parties claiming a lack of adequate protection with respect to the ABL Priority
Collateral. Notwithstanding the foregoing provisions in this Section 3.5(c), in any
Insolvency or Liquidation Proceeding, (A) if the ABL Secured Parties (or any subset thereof)
are granted adequate protection in the form of additional collateral in the nature of assets
constituting ABL Priority Collateral in connection with any DIP Financing, then the Term
Collateral Agent, on behalf of itself or any of the Term Secured Parties, and the Notes
Collateral Agent, on behalf of itself and the Notes Secured Parties, may seek or request
adequate protection in the form of a Lien on such additional collateral, which Lien of the
Term Collateral Agent will be subordinated to the Liens securing the ABL Obligations and
such DIP Financing (and all obligations relating thereto) on the same basis as the other
Liens on ABL Priority Collateral securing the Term Obligations are so subordinated to the
ABL Obligations under this Agreement and which Lien of the Notes Collateral Agent will be
subordinated to the Liens securing the ABL Obligations, such DIP Financing (and all
obligations relating thereto) and the Term Obligations on the same basis as the other Liens
on ABL
Priority Collateral securing the Notes Obligations are so subordinated to the ABL
Obligations and Term Obligations under this Agreement, and (B) in the event the Term
Collateral Agent, on behalf of itself and the Term Secured Parties, or the Notes Collateral
Agent, on behalf of itself and the Notes Secured Parties, seeks or requests adequate
protection in respect of ABL Priority Collateral securing Term Obligations or the Notes
Obligations, as applicable, and such adequate protection is granted in the form of



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additional collateral in the nature of assets constituting ABL Priority Collateral, then the
Term Collateral Agent, on behalf of itself or any of the Term Secured Parties, and the Notes
Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that the ABL
Collateral Agent shall also be granted a senior Lien on such additional collateral as
security for the ABL Obligations and for any such DIP Financing provided by the ABL Secured
Parties and that any Lien on such additional collateral securing the Term Obligations and
the Notes Obligations shall be subordinated to the Liens on such collateral securing the ABL
Obligations and any such DIP Financing provided by the ABL Secured Parties (and all
obligations relating thereto) and to any other Liens granted to the ABL Secured Parties as
adequate protection on the same basis as the other Liens on ABL Priority Collateral securing
the Term Obligations and Notes Obligations are so subordinated to such ABL Obligations under
this Agreement.




     (ii) Prior to the Discharge of Term Obligations, the Notes Collateral Agent, on behalf
of itself and the Notes Secured Parties, agrees that none of them shall contest (or support
any other person contesting) (i) any request by the Term Collateral Agent or the Term
Secured Parties for adequate protection with respect to any ABL Priority Collateral or (ii)
any objection by the Term Collateral Agent or the Term Secured Parties to any motion,
relief, action or proceeding based on the Term Collateral Agent or the Term Secured Parties
claiming a lack of adequate protection with respect to the ABL Priority Collateral.
Notwithstanding the foregoing provisions in this Section 3.5(c), in any Insolvency or
Liquidation Proceeding, (A) if the Term Secured Parties (or any subset thereof) are granted
adequate protection in the form of additional collateral in the nature of assets
constituting ABL Priority Collateral in connection with any DIP Financing, then the Notes
Collateral Agent, on behalf of itself and the Notes Secured Parties, may seek or request
adequate protection in the form of a Lien on such additional collateral, which Lien will be
subordinated to the Liens securing the Term Obligations and such DIP Financing (and all
obligations relating thereto) on the same basis as the other Liens on ABL Priority
Collateral securing the Notes Obligations are so subordinated to the Term Obligations under
this Agreement, and (B) in the event the Notes Collateral Agent, on behalf of itself and the
Notes Secured Parties, seek or request adequate protection in respect of ABL Priority
Collateral securing the Notes Obligations, and such adequate protection is granted in the
form of additional collateral in the nature of assets constituting ABL Priority Collateral,
then the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agree
that the Term Collateral Agent shall also be granted a senior Lien on such additional
collateral as security for the Term Obligations and for any such DIP Financing provided by
the Term Secured Parties and that any Lien on such additional collateral securing the Notes
Obligations shall be subordinated to the Liens on such collateral securing the Term
Obligations and any such DIP Financing provided by the Term Secured Parties (and all
obligations relating thereto) and to any other Liens granted to the Term Secured Parties as
adequate protection on the same basis as the other
Liens on ABL Priority Collateral securing the Notes Obligations are so subordinated to
such Term Obligations under this Agreement.



          (d) No Waiver. Subject to the proviso in clause (ii) of Section 3.2(a), nothing
contained herein shall prohibit or in any way limit the ABL Collateral Agent or any ABL Secured
Party from objecting in any Insolvency or Liquidation Proceeding or otherwise to



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any action taken
by the Term Collateral Agent, any of the Term Secured Parties, the Notes Collateral Agent or any
of the Notes Secured Parties in respect of the ABL Priority Collateral, including the seeking by
the Term Collateral Agent, any Term Secured Parties, the Notes Collateral Agent or any Notes
Secured Parties of adequate protection in respect thereof or the asserting by the Term Collateral
Agent, any Term Secured Parties, the Notes Collateral Agent or any Notes Secured Parties of any of
its rights and remedies under the Term Documents, the Notes Documents or otherwise in respect
thereof. Subject to the proviso in clause (ii) of Section 3.2(b), nothing contained herein shall
prohibit or in any way limit the Term Collateral Agent or any Term Secured Party from objecting in
any Insolvency or Liquidation Proceeding or otherwise to any action taken by the Notes Collateral
Agent or any of the Notes Secured Parties in respect of the ABL Priority Collateral, including the
seeking by the Notes Collateral Agent or any Notes Secured Parties of adequate protection in
respect thereof or the asserting by the Notes Collateral Agent or any Notes Secured Parties of any
of its rights and remedies under the Notes Documents or otherwise in respect thereof.



          (e) Reorganization Securities. If, in any Insolvency or Liquidation Proceeding, debt
obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor
are distributed, pursuant to a plan of reorganization or similar dispositive restructuring plan,
on account of ABL Obligations , on account of Term Obligations and on account of the Notes
Obligations, then, to the extent the debt obligations distributed on account of the ABL
Obligations, on account of the Term Obligations and on account of the Notes Obligations are
secured by Liens upon the same property, the provisions of this Agreement will survive the
distribution of such debt obligations pursuant to such plan and will apply with like effect to the
Liens securing such debt obligations.



          (f) Post-Petition Interest.




     (i) None of the Term Collateral Agent, any Term Secured Party, the Notes Collateral
Agent or any Notes Secured Party shall oppose or seek to challenge any claim by the ABL
Collateral Agent or any ABL Secured Party for allowance in any Insolvency or Liquidation
Proceeding of ABL Obligations consisting of post-petition interest, fees or expenses to the
extent of the value of the ABL Secured Party’s Lien on the ABL Priority Collateral, without
regard to the existence of the Lien of the Term Collateral Agent on behalf of the Term
Secured Parties on the ABL Priority Collateral or the Lien of the Notes Collateral Agent on
behalf of the Notes Secured Parties on the ABL Priority Collateral. None of the Notes
Collateral Agent or any Notes Secured Party shall oppose or seek to challenge any claim by
the Term Collateral Agent or any Term Secured Party for allowance in any Insolvency or
Liquidation Proceeding of Term Obligations consisting of post-petition interest, fees or
expenses to the extent of the value of the Term Secured Party’s Lien on the ABL Priority
Collateral, without regard to the existence of
the Lien of the Notes Collateral Agent on behalf of the Notes Secured Parties on the
ABL Priority Collateral.




     (ii) Neither the ABL Collateral Agent nor any other ABL Secured Party shall oppose or
seek to challenge any claim by the Term Collateral Agent, any Term Secured Party, the Notes
Collateral Agent or any Notes Secured Party for allowance in any Insolvency or Liquidation
Proceeding of Term Obligations or Notes Obligations



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consisting of post-petition interest,
fees or expenses to the extent of the value of the Lien of the Term Collateral Agent on
behalf of the Term Secured Parties on the ABL Priority Collateral or the Lien of the Notes
Collateral Agent on behalf of the Notes Secured Parties on the ABL Priority Collateral
(after taking into account the Lien of the ABL Secured Parties on the ABL Priority
Collateral and with respect to the Lien of the Notes Collateral Agent, after taking into
account the Lien of the Term Secured Parties on the ABL Priority Collateral). Neither the
Term Collateral Agent nor any other Term Secured Party shall oppose or seek to challenge any
claim by the Notes Collateral Agent or any Notes Secured Party for allowance in any
Insolvency or Liquidation Proceeding of Notes Obligations consisting of post-petition
interest, fees or expenses to the extent of the value of the Lien of the Notes Collateral
Agent on behalf of the Notes Secured Parties on the ABL Priority Collateral (after taking
into account the Lien of the ABL Secured Parties and the Term Secured Parties on the ABL
Priority Collateral).



          (g) Waiver. The Term Collateral Agent, for itself and on behalf of the Term Secured
Parties, and the Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties,
waive any claim they may hereafter have against any ABL Secured Party arising out of the election
of any ABL Secured Party of the application of Section 1111(b)(2) of the Bankruptcy Code, and/or
out of any cash collateral or financing arrangement or out of any grant of a security interest in
connection with the ABL Priority Collateral in any Insolvency or Liquidation Proceeding.



          17.06. Reliance; Waivers; Etc.



          (a) Reliance. Other than any reliance on the terms of this Agreement, the Term
Collateral Agent, on behalf of itself and the Term Secured Parties, and the Notes Collateral
Agent, for itself and on behalf of the Notes Secured Parties, acknowledge that they and such Term
Secured Parties and Notes Secured Parties have, independently and without reliance on the ABL
Collateral Agent or any ABL Secured Parties, and based on documents and information deemed by them
appropriate, made their own credit analysis and decision to enter into such Term Documents and
Notes Documents and be bound by the terms of this Agreement and they will continue to make their
own credit decision in taking or not taking any action under the Term Credit Agreement, the
Indenture or this Agreement.



          (b) No Warranties or Liability. The Term Collateral Agent, on behalf of itself and
the Term Obligations, and the Notes Collateral Agent, for itself and on behalf of the Notes
Secured Parties, acknowledge and agree that the ABL Collateral Agent and the ABL Secured Parties
have made no express or implied representation or warranty, including with
respect to the execution, validity, legality, completeness, collectability or enforceability
of any of the ABL Documents, the ownership of any Collateral or the perfection or priority of any
Liens thereon. The ABL Secured Parties will be entitled to manage and supervise their respective
loans and extensions of credit under their respective ABL Documents in accordance with law and as
they may otherwise, in their sole discretion, deem appropriate. The ABL Collateral Agent and the
ABL Secured Parties shall have no duty to the Term Collateral Agent, or any of the Term Secured
Parties, the Notes Collateral Agent or any of the Notes Secured Parties to act or refrain from
acting in a manner which allows, or results in, the occurrence or continuance of an event of
default or default under any agreements with the Company or any



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other Grantor (including the ABL
Documents, the Term Documents and the Notes Documents), regardless of any knowledge thereof which
they may have or be charged with.



          (c) No Waiver of Lien Priorities.




     (i) No right of the ABL Secured Parties, the ABL Collateral Agent or any of them to
enforce any provision of this Agreement or any ABL Document shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company or any other
Grantor or by any act or failure to act by any ABL Secured Party or the ABL Collateral
Agent, or by any noncompliance by any Person with the terms, provisions and covenants of
this Agreement, any of the ABL Documents, any of the Term Documents or any of the Notes
Documents, regardless of any knowledge thereof which the ABL Collateral Agent or the ABL
Secured Parties, or any of them, may have or be otherwise charged with.




     (ii) Without in any way limiting the generality of the foregoing paragraph (but subject
to the rights of the Company and the other Grantors under the ABL Documents and subject to
the provisions of Section 3.4(c)), the ABL Secured Parties, the ABL Collateral Agent and any
of them may, at any time and from time to time in accordance with the ABL Documents and/or
applicable law, without the consent of, or notice to, the Term Collateral Agent, any Term
Secured Party, the Notes Collateral Agent or any Notes Secured Party without incurring any
liabilities to the Term Collateral Agent, any Term Secured Parties, the Notes Collateral
Agent or any Notes Secured Party and without impairing or releasing the Lien priorities and
other benefits provided in this Agreement (even if any right of subrogation or other right
or remedy of the Term Collateral Agent, any Term Secured Party, the Notes Collateral Agent
or any Notes Secured Party is affected, impaired or extinguished thereby) do any one or more
of the following:




     sell, exchange, realize upon, enforce or otherwise deal with in any manner (subject to
the terms hereof) and in any order any part of the ABL Priority Collateral or any liability
of the Company or any other Grantor to the ABL Secured Parties or the ABL Collateral Agent,
or any liability incurred directly or indirectly in respect thereof;




     settle or compromise any ABL Obligation or any other liability of the Company or any
other Grantor or any security therefor or any liability incurred directly or indirectly in
respect thereof; and




     exercise or delay in or refrain from exercising any right or remedy against the Company
or any security or any other Grantor or any other Person, elect any remedy and otherwise
deal freely with the Company, any other Grantor or any ABL Priority Collateral and any
security and any guarantor or any liability of the Company or any other Grantor to the ABL
Secured Parties or any liability incurred directly or indirectly in respect thereof.




     (iii) The Term Collateral Agent, on behalf of itself and the Term Secured Parties, and
the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, also agree
that the ABL Secured Parties and the ABL Collateral Agent shall have no



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liability to the
Term Collateral Agent, any Term Secured Party, the Notes Collateral Agent or any Notes
Secured Party, and the Term Collateral Agent, on behalf of itself and the Term Secured
Parties, and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties,
hereby waive any claim against any ABL Secured Party or the ABL Collateral Agent, arising
out of any and all actions which the ABL Secured Parties or the ABL Collateral Agent may
take or permit or omit to take with respect to:




     the ABL Documents (other than this Agreement);




     the collection of the ABL Obligations; or




     the foreclosure upon, or sale, liquidation or other disposition of, any ABL Priority
Collateral.



          The Term Collateral Agent, on behalf of itself and the Term Secured Parties, and the Notes
Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that the ABL Secured
Parties and the ABL Collateral Agent have no duty to the Term Collateral Agent, the Term Secured
Parties, the Notes Collateral Agent or the Notes Secured Parties in respect of the maintenance or
preservation of the ABL Priority Collateral, the ABL Obligations or otherwise.




     (iv) The Notes Collateral Agent, on behalf of itself and the Notes Secured Parties,
also agrees that the Term Secured Parties and the Term Collateral Agent shall have no
liability to the Notes Collateral Agent or any Notes Secured Party, and the Notes Collateral
Agent, on behalf of itself and the Notes Secured Parties, hereby waives any claim against
any Term Secured Party or the Term Collateral Agent, arising out of any and all actions
which the Term Secured Parties or the Term Collateral Agent may take or permit or omit to
take with respect to:




     1) the Term Documents (other than this Agreement);




     2) the collection of the Term Obligations; or




     3) the foreclosure upon, or sale, liquidation or other disposition of, any ABL Priority
Collateral.



          The Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees that the
Term Secured Parties and the Term Collateral Agent have no duty to the Notes
Collateral Agent or the Notes Secured Parties in respect of the maintenance or preservation of
the ABL Priority Collateral, the Term Obligations or otherwise.




     (v) The Term Collateral Agent, on behalf of itself and the Term Secured Parties, and
the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agree not to
assert and hereby waive, to the fullest extent permitted by law, any right to demand,
request, plead or otherwise assert or otherwise claim the benefit of, any marshalling,
appraisal, valuation or other similar right that may otherwise be available under applicable
law with respect to the ABL Priority Collateral or any other similar rights a junior secured
creditor may have under applicable law.



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     (vi) The Notes Collateral Agent, on behalf of itself and the Notes Secured Parties,
agrees not to assert and hereby waive, to the fullest extent permitted by law, any right to
demand, request, plead or otherwise assert or otherwise claim the benefit of, any
marshalling, appraisal, valuation or other similar right that may otherwise be available
under applicable law with respect to the ABL Priority Collateral or any other similar rights
a junior secured creditor may have under applicable law.



          (d) Obligations Unconditional. All rights, interests, agreements and obligations of
the ABL Collateral Agent and the ABL Secured Parties and the Term Collateral Agent, the Term
Secured Parties, the Notes Collateral Agent and the Notes Secured Parties, respectively, hereunder
shall remain in full force and effect irrespective of:




     (i) any lack of validity or enforceability of any ABL Document, any Term Document or
any Notes Document;




     (ii) except as otherwise set forth in the Agreement, any change permitted hereunder in
the time, manner or place of payment of, or in any other terms of, all or any of the ABL
Obligations, Term Obligations or Notes Document, or any amendment or waiver or other
modification permitted hereunder, whether by course of conduct or otherwise, of the terms of
any ABL Document, any Term Document or any Notes Document;




     (iii) any exchange of any security interest in any ABL Priority Collateral or any
amendment, waiver or other modification permitted hereunder, whether in writing or by course
of conduct or otherwise, of all or any of the ABL Obligations, Term Obligations or Notes
Obligations;




     (iv) the commencement of any Insolvency or Liquidation Proceeding in respect of the
Company or any other Grantor; or




     (v) any other circumstances which otherwise might constitute a defense available to, or
a discharge of, the Company or any other Grantor in respect of the ABL Obligations, or of
the Term Collateral Agent or any Term Secured Party, or of the Notes Collateral Agent or any
Notes Secured Party in respect of this Agreement.



SECTION 18. Cooperation With Respect To ABL Priority Collateral.




          18.01. Consent to License to Use Intellectual Property. The Term Collateral Agent and the Notes Collateral Agent
(and any purchaser, assignee or
transferee of assets as provided in Section 4.3) (a) consent (without any representation, warranty
or obligation whatsoever) to the grant by any Grantor to the ABL Collateral Agent of a
non-exclusive royalty-free license to use for a period not to exceed 180 days (commencing with the
initiation of any enforcement of Liens by any of the Term Collateral Agent (provided that
the ABL Collateral Agent and the Notes Collateral Agent have received notice thereof), the ABL
Collateral Agent or the Notes Collateral Agent) any Patent, Trademark or proprietary information of
such Grantor that is subject to a Lien held by the Term Collateral Agent or the Notes Collateral
Agent (or any Patent, Trademark or proprietary information acquired by such purchaser, assignee or
transferee from any Grantor, as the case may be) and (b) grant, in its capacity as a secured party
(or as a



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purchaser, assignee or transferee, as the case may be), to the ABL Collateral Agent a
non-exclusive royalty-free license to use for a period not to exceed 180 days (commencing with (x)
the initiation of any enforcement of Liens by the Term Collateral Agent (provided that the ABL
Collateral Agent and the Notes Collateral Agent have received notice thereof) or the ABL Collateral
Agent or (y) the purchase, assignment or transfer of, as the case may be, any Patent, Trademark or
proprietary information that is subject to a Lien held by the Term Collateral Agent or Notes
Collateral Agent (or subject to such purchase, assignment or transfer, as the case may be), in each
case in connection with the enforcement of any Lien held by the ABL Collateral Agent upon any
Inventory or other ABL Priority Collateral of any Grantor and to the extent the use of such Patent,
Trademark or proprietary information is necessary or appropriate, in the good faith opinion of the
ABL Collateral Agent, to process, ship, produce, store, complete, supply, lease, sell or otherwise
dispose of any such inventory in any lawful manner.



          18.02. Access to Information. If the Term Collateral Agent or the Notes Collateral Agent takes actual possession of any
documentation of a Grantor (whether such documentation is in the form of a writing or is stored in
any data equipment or data record in the physical possession of the Term Collateral Agent or the
Notes Collateral Agent), then upon request of the ABL Collateral Agent and reasonable advance
notice, the Term Collateral Agent or the Notes Collateral Agent, as applicable, will permit the ABL
Collateral Agent or its representative to inspect and copy such documentation if and to the extent
the ABL Collateral Agent certifies to the Term Collateral Agent or the Notes Collateral Agent, as
applicable, that:




     (a) such documentation contains or may contain information necessary or appropriate, in
the good faith opinion of the ABL Collateral Agent, to the enforcement of the ABL Collateral
Agent’s Liens upon any ABL Priority Collateral; and




     (b) the ABL Collateral Agent and the ABL Secured Parties are entitled to receive and
use such information under applicable law and, in doing so, will comply with all obligations
imposed by law or contract in respect of the disclosure or use of such information.



          18.03. Access to Property to Process and Sell Inventory.



          (a) (i) If the ABL Collateral Agent commences any action or proceeding with respect to any of
its rights or remedies (including, but not limited to, any action of foreclosure), enforcement,
collection or execution with respect to the ABL Priority Collateral (“ABL Priority Collateral
Enforcement Actions”) or if the Term Collateral Agent commences any action or proceeding with
respect to any of its rights or remedies (including any action of foreclosure), enforcement,
collection or execution with respect to the TL Priority Collateral and the Term Collateral Agent
(or a purchaser at a foreclosure sale conducted in foreclosure of any Term Collateral Agent’s
Liens) takes actual or constructive possession of TL Priority Collateral of any Grantor (“TL
Priority Collateral Enforcement Actions”), then the Term Secured Parties and the Term
Collateral Agent shall (subject to, in the case of any TL Priority Collateral Enforcement Action,
a prior written request by the ABL Collateral Agent to the Term Collateral Agent (the “TL
Priority Collateral Enforcement Action Notice”)) (x) cooperate with the ABL Collateral Agent
(and with its officers, employees, representatives and agents) in its efforts to conduct ABL
Priority Collateral Enforcement Actions in the ABL Priority Collateral and to



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finish any
work-in-process and process, ship, produce, store, complete, supply, lease, sell or otherwise
handle, deal with, assemble or dispose of, in any lawful manner, the ABL Priority Collateral, (y)
not hinder or restrict in any respect the ABL Collateral Agent from conducting ABL Priority
Collateral Enforcement Actions in the ABL Priority Collateral or from finishing any
work-in-process or processing, shipping, producing, storing, completing, supplying, leasing,
selling or otherwise handling, dealing with, assembling or disposing of, in any lawful manner, the
ABL Priority Collateral, and (z) permit the ABL Collateral Agent, its employees, agents, advisers
and representatives, at the cost and expense of the ABL Secured Parties (but with the Grantors’
reimbursement and indemnity obligation with respect thereto, which shall not be limited), to enter
upon and use the TL Priority Collateral (including, without limitation, equipment, processors,
computers and other machinery related to the storage or processing of records, documents or files
and intellectual property), for a period commencing on (I) the date of the initial ABL Priority
Collateral Enforcement Action or the date of delivery of the TL Priority Collateral Enforcement
Action Notice, as the case may be, and (II) ending on the earlier of the date occurring 180 days
thereafter and the date on which all ABL Priority Collateral (other than ABL Priority Collateral
abandoned by the ABL Collateral Agent in writing) has been removed from the TL Priority Collateral
(such period, the “ABL Priority Collateral Processing and Sale Period”), for purposes of:




     (A) assembling and storing the ABL Priority Collateral and completing the processing of
and turning into finished goods any ABL Priority Collateral consisting of work-in-process;




     (B) selling any or all of the ABL Priority Collateral located in or on such TL Priority
Collateral, whether in bulk, in lots or to customers in the ordinary course of business or
otherwise;




     (C) removing and transporting any or all of the ABL Priority Collateral located in or
on such TL Priority Collateral;




     (D) otherwise processing, shipping, producing, storing, completing, supplying, leasing,
selling or otherwise handling, dealing with, assembling or disposing of, in any lawful
manner, the ABL Priority Collateral; and/or




     (E) taking reasonable actions to protect, secure, and otherwise enforce the rights or
remedies of the ABL Secured Parties and/or the ABL Collateral Agent (including with respect
to any ABL Priority Collateral Enforcement Actions) in and to the ABL Priority Collateral;


provided, however, that nothing contained in this Agreement shall restrict the
rights of the Term Collateral Agent from selling, assigning or otherwise transferring any TL
Priority Collateral prior to the expiration of such ABL Priority Collateral Processing and Sale
Period if the purchaser, assignee or transferee thereof agrees in writing (for the benefit of the
ABL Collateral Agent and the ABL Secured Parties) to be bound by the provisions of this Section 4.3
and Section 4.1. If any stay or other order prohibiting the exercise of remedies with respect to
the ABL Priority Collateral has been entered by a court of competent jurisdiction, such ABL
Priority


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Collateral Processing and Sale Period shall be tolled during the pendency of any such stay
or other order.




          (ii) During the period of actual occupation, use and/or control by the ABL Secured Parties
and/or the ABL Collateral Agent (or their respective employees, agents, advisers and
representatives) of any TL Priority Collateral, the ABL Secured Parties and the ABL Collateral
Agent shall be obligated to repair at their expense any physical damage to such TL Priority
Collateral resulting from such occupancy, use or control, and to leave such TL Priority Collateral
in substantially the same condition as it was at the commencement of such occupancy, use or
control, ordinary wear and tear excepted. Notwithstanding the foregoing, in no event shall the ABL
Secured Parties or the ABL Collateral Agent have any liability to the Term Secured Parties and/or
to the Term Collateral Agent pursuant to this Section 4.3(a) as a result of any condition
(including any environmental condition, claim or liability) on or with respect to the TL Priority
Collateral existing prior to the date of the exercise by the ABL Secured Parties (or the ABL
Collateral Agent, as the case may be) of their rights under this Section 4.3(a) and the ABL Secured
Parties shall have no duty or liability to maintain the TL Priority Collateral in a condition or
manner better than that in which it was maintained prior to the use thereof by the ABL Secured
Parties, or for any diminution in the value of the TL Priority Collateral that results from
ordinary wear and tear resulting from the use of the TL Priority Collateral by the ABL Secured
Parties in the manner and for the time periods specified under this Section 4.3(a). Without
limiting the rights granted in this Section 4.3(a), the ABL Secured Parties and the ABL Collateral
Agent shall cooperate with the Term Secured Parties and/or the Term Collateral Agent in connection
with any efforts made by the Term Secured Parties and/or the Term Collateral Agent to sell the TL
Priority Collateral.



          (b) the Term Collateral Agent shall be entitled, as a condition of permitting such access and
use, to demand and receive assurances reasonably satisfactory to it that the access or use
requested and all activities incidental thereto:




     (i) will be permitted, lawful and enforceable under applicable law and will be
conducted in accordance with prudent manufacturing practices; and




     (ii) will be adequately insured for damage to property and liability to persons,
including property and liability insurance for the benefit of the Term Collateral Agent
and the holders of the Term Obligations, at no cost to the Term Collateral Agent or
such holders.


The Term Collateral Agent (x) shall provide reasonable cooperation to the ABL Collateral Agent in
connection with the manufacture, production, completion, handling, removal and sale of any ABL
Priority Collateral by the ABL Collateral Agent as provided above and (y) shall be entitled to
receive, from the ABL Collateral Agent, fair compensation and reimbursement for their reasonable
costs and expenses incurred in connection with such cooperation, support and assistance to the ABL
Collateral Agent. The Term Collateral Agent and/or any such purchaser (or its transferee or
successor) shall not otherwise be required to manufacture, produce, complete, remove, insure,
protect, store, safeguard, sell or deliver any inventory subject to any First Priority Lien held by
the ABL Collateral Agent or to provide any support, assistance or cooperation to the ABL Collateral
Agent in respect thereof.





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          18.04. Term Collateral Agent Assurances. The Term Collateral Agent may condition its
performance of any obligation set forth in this Article 4 upon its prior receipt (without cost to
it) of:





     (a) such assurances as it may reasonably request to confirm that the performance of
such obligation and all activities of the ABL Collateral Agent or its officers, employees
and agents in connection therewith or incidental thereto:




     (i) will be permitted, lawful and enforceable under applicable law; and




     (ii) will not impose upon the Term Collateral Agent (or any Term Secured Party)
any legal duty, legal liability or risk of uninsured loss; and




     (b) such indemnity or insurance as the Term Collateral Agent may reasonably request in
connection therewith.



          18.05. Grantor Consent. The Company and the other Grantors consent to the performance by the
Term Collateral Agent of the obligations set forth in this Article 4 and acknowledge and agree that
neither the Term Collateral Agent (nor any holder of Term Obligations) shall ever be accountable or
liable for any action taken or omitted by the ABL Collateral Agent or any ABL Secured Party or its
or any of their officers, employees, agents successors or assigns in connection therewith or
incidental thereto or in consequence thereof, including any improper use or disclosure of any
proprietary information or other intellectual property by the ABL Collateral Agent or any ABL
Secured Party or its or any of their officers, employees, agents, successors or assigns or any
other damage to or misuse or loss of any property of the Grantors as a result of any action taken
or omitted by the ABL Collateral Agent or its officers, employees, agents, successors or assigns.




SECTION 19. Application of Proceeds.




          19.01. Application of Proceeds in Distributions by the Term Collateral Agent.




          (a) The Term Collateral Agent will apply the proceeds of any collection, sale, foreclosure or
other realization upon any TL Priority Collateral and, after the Discharge of ABL Obligations, the
proceeds of any collection, sale, foreclosure or other realization of any ABL Priority Collateral
by Term Collateral Agent as expressly permitted hereunder, and, in each case the proceeds of any
title insurance policy required under any Term Document, ABL Document or Notes Document, in the
following order of application:





     First, to the payment of all amounts payable under the Term Documents on account of the
Term Collateral Agent’s fees and any reasonable legal fees, costs and
expenses or other liabilities of any kind incurred by the Term Collateral Agent or any
co-trustee or agent of the Term Collateral Agent in connection with any Term Document;




     Second, to the Term Administrative Agent for application to the payment of all
outstanding Term Obligations (including, without limitation, Bermuda Guaranteed Obligations)
that are then due and payable in such order as may be provided in the Term Documents in an
amount sufficient to pay in full in cash all outstanding Term Obligations



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that are then due
and payable (including all interest accrued thereon after the commencement of any Insolvency
or Liquidation Proceeding at the rate, and including any applicable post-default rate,
specified in the Term Documents, even if such interest is not enforceable, allowable or
allowed as a claim in such proceeding and including the discharge or cash collateralization
(at 110% of the aggregate undrawn amount (as determined by the Term Administrative Agent))
of all outstanding letters of credit and bank guaranties, if any, constituting Term
Obligations);





     Third, to the payment of all amounts payable under the ABL Documents on account of the
ABL Collateral Agent’s fees and any reasonable legal fees, costs and expenses or other
liabilities of any kind incurred by the ABL Collateral Agent or any co-Notes Collateral
Agent or agent of the ABL Collateral Agent in connection with any ABL Document;




     Fourth, to the ABL Administrative Agent for application to the payment of all
outstanding ABL Obligations that are then due and payable in such order as may be provided
in the ABL Documents in an amount sufficient to pay in full in cash all outstanding ABL
Obligations that are then due and payable (including all interest accrued thereon after the
commencement of any Insolvency or Liquidation Proceeding at the rate, including any
applicable post-default rate, specified in the ABL Documents, even if such interest is not
enforceable, allowable or allowed as a claim in such proceeding, and including the discharge
or cash collateralization (at 110% of the aggregate undrawn amount) of all outstanding
letters of credit and bank guaranties, if any, constituting ABL Obligations);




     Fifth, to the payment of all amounts payable under the Notes Documents on account of
the Notes Collateral Agent’s fees and any reasonable legal fees, costs and expenses or other
liabilities of any kind incurred by the Notes Collateral Agent or any co-trustee or agent of
the Notes Collateral Agent in connection with any Notes Document;




     Sixth, to the Notes Collateral Agent for application to the payment of all outstanding
Notes Obligations that are then due and payable in such order as may be provided in the
Notes Documents in an amount sufficient to pay in full in cash all outstanding Notes
Obligations that are then due and payable (including all interest accrued thereon after the
commencement of any Insolvency or Liquidation Proceeding at the rate, including any
applicable post-default rate, specified in the Notes Documents, even if such interest is not
enforceable, allowable or allowed as a claim in such proceeding); and




     Seventh, any surplus remaining after the payment in full in cash of the amounts
described in the preceding clauses will be paid to the Company or the applicable Grantor, as
the case may be, its successors or assigns, or as a court of competent jurisdiction may
direct.



          (b) In connection with the application of proceeds pursuant to Section 5.1(a), except as
otherwise directed by the Required Lenders under (and as defined in) the Term





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Documents, the Term
Collateral Agent may sell any non-cash proceeds for cash prior to the application of the proceeds
thereof.




          (c) If the Term Collateral Agent or any Term Secured Party collects or receives any proceeds
of such foreclosure, collection or other enforcement that should have been applied to the payment
of the ABL Obligations or Notes Obligations in accordance with Section 5.2(a) below, whether after
the commencement of an Insolvency or Liquidation Proceeding or otherwise, such Term Secured Party
will forthwith deliver the same to the ABL Collateral Agent, for the account of the holders of the
ABL Obligations, or to the Notes Collateral Agent, for the account of the holders of the Notes
Obligations, as applicable, to be applied in accordance with Section 5.2(a). Until so delivered,
such proceeds will be held by that Term Secured Party for the benefit of the holders of the ABL
Obligations and Notes Obligations.




          19.02. Application of Proceeds in Distributions by the ABL Collateral Agent.




          (a) The ABL Collateral Agent will apply the proceeds of any collection, sale, foreclosure or
other realization upon any ABL Priority Collateral and, after the Discharge of Term Obligations,
the proceeds of any collection, sale, foreclosure or other realization of any TL Priority
Collateral by the ABL Collateral Agent as expressly permitted hereunder, and the proceeds of any
title insurance policy required under any Term Document, ABL Document or Notes Document permitted
to be received by it, in the following order of application:





     First, to the payment of all amounts payable under the ABL Documents on account of the
ABL Collateral Agent’s fees and any reasonable legal fees, costs and expenses or other
liabilities of any kind incurred by the ABL Collateral Agent or any co-trustee or agent of
the ABL Collateral Agent in connection with any ABL Document;




     Second, to the ABL Administrative Agent for application to the payment of all
outstanding ABL Obligations that are then due and payable in such order as may be provided
in the ABL Documents in an amount sufficient to pay in full in cash all outstanding ABL
Obligations that are then due and payable (including all interest accrued thereon after the
commencement of any Insolvency or Liquidation Proceeding at the rate, and including any
applicable post-default rate, specified in the ABL Documents, even if such interest is not
enforceable, allowable or allowed as a claim in such proceeding and including the discharge
or cash collateralization (at 110% of the aggregate undrawn amount) of all outstanding
letters of credit and bank guaranties, if any, constituting ABL Obligations);




     Third, to the payment of all amounts payable under the Term Documents on account of the
Term Collateral Agent’s fees and any reasonable legal fees, costs and expenses or other
liabilities of any kind incurred by the Term Collateral Agent or any co-trustee or agent of
the Term Collateral Agent in connection with any Term Document;




     Fourth, to the Term Administrative Agent for application to the payment of all
outstanding Term Obligations (including, without limitation, Bermuda Guaranteed Obligations)
that are then due and payable in such order as may be provided in the Term



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Documents in an
amount sufficient to pay in full in cash all outstanding Term Obligations that are then due
and payable (including all interest accrued thereon after the commencement of any Insolvency
or Liquidation Proceeding at the rate, and including any applicable post-default rate,
specified in the Term Documents, even if such interest is not enforceable, allowable or
allowed as a claim in such proceeding and including the discharge or cash collateralization
(at 110% of the aggregate undrawn amount (as determined by the Term Administrative Agent))
of all outstanding letters of credit and bank guaranties, if any, constituting Term
Obligations);




     Fifth, to the payment of all amounts payable under the Notes Documents on account of
the Notes Collateral Agent’s fees and any reasonable legal fees, costs and expenses or other
liabilities of any kind incurred by the Notes Collateral Agent or any co-trustee or agent of
the Notes Collateral Agent in connection with any Notes Document;




     Sixth, to the Notes Collateral Agent for application to the payment of all outstanding
Notes Obligations that are then due and payable in such order as may be provided in the
Notes Documents in an amount sufficient to pay in full in cash all outstanding Notes
Obligations that are then due and payable (including all interest accrued thereon after the
commencement of any Insolvency or Liquidation Proceeding at the rate, including any
applicable post-default rate, specified in the Notes Documents, even if such interest is not
enforceable, allowable or allowed as a claim in such proceeding; and




     Seventh, any surplus remaining after the payment in full in cash of the amounts
described in the preceding clauses will be paid to the Company or the other applicable
Grantor, as the case may be, its successors or assigns, or as a court of competent
jurisdiction may direct.



          (b) In connection with the application of proceeds pursuant to Section 5.2(a), except as
otherwise directed by the Required Lenders under (and as defined in) the ABL Documents, the ABL
Collateral Agent may sell any non-cash proceeds for cash prior to the application of the proceeds
thereof.




          (c) If the ABL Collateral Agent or any ABL Secured Party collects or receives any proceeds of
such foreclosure, collection or other enforcement that should have been applied to the payment of
the Term Obligations or Notes Obligations in accordance with Section 5.1(a) above, whether after
the commencement of an Insolvency or Liquidation Proceeding or otherwise, such ABL Secured Party
will forthwith deliver the same to the Term Collateral Agent, for the account of the holders of
the Term Obligations, or to the Notes
Collateral Agent, for the account of the holders of Notes Obligations, as applicable, to be
applied in accordance with Section 5.1(a). Until so delivered, such proceeds will be held by that
ABL Secured Party for the benefit of the holders of the Term Obligations and Notes Obligations.




SECTION 20. Miscellaneous.




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          20.01. Conflicts. In the event of any conflict between the provisions of this Agreement and
the provisions of the Term Documents, the ABL Documents or the Notes Documents, the provisions of
this Agreement shall govern and control. Each Secured Party acknowledges and agrees that the terms
and provisions of this Agreement do not violate any term or provisions of its respective Term
Document, ABL Document or Notes Document.




          20.02. Effectiveness; Continuing Nature of This Agreement; Severability.




          (a) This Agreement shall become effective when executed and delivered by the parties hereto.
The terms of this Agreement shall survive, and shall continue in full force and effect, in any
Insolvency or Liquidation Proceeding. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. All references to the Company or any
other Grantor shall include the Company or such Grantor as debtor and debtor in possession and any
receiver or trustee for the Company or any other Grantor (as the case may be) in any Insolvency or
Liquidation Proceeding.




          (b) This Agreement shall terminate and be of no further force and effect:





     (i) with respect to the ABL Collateral Agent, the ABL Secured Parties and the ABL
Obligations, upon the Discharge of ABL Obligations, subject to the rights of the ABL Secured
Parties under Section 6.17;




     (ii) with respect to the Term Collateral Agent, the Term Secured Parties and the Term
Obligations, upon the Discharge of Term Obligations, subject to the rights of the Term
Secured Parties under Section 6.17; and




     (iii) with respect to the Notes Collateral Agent, the Notes Secured Parties and the
Notes Obligations, upon a satisfaction and discharge, legal defeasance or covenant
defeasance of each Indenture in accordance with the terms thereof.



          20.03. Amendments; Waivers. No amendment, modification or waiver of any of the provisions of
this Agreement by the Term Collateral Agent, the ABL Collateral Agent or the Notes Collateral Agent
shall be deemed to be made unless the same shall be in writing signed on behalf of each
party hereto or its authorized agent and each waiver, if any, shall be a waiver only with
respect to the specific instance involved and shall in no way impair the rights of the parties
making such waiver or the obligations of the other parties to such party in any other respect or at
any other time. Notwithstanding the foregoing, the Company or any other Grantor shall not have any
right to consent to or approve any amendment, modification or waiver of any provision of this
Agreement except to the extent its rights are directly affected (which includes any amendment to
the Grantors’ ability to cause additional obligations to constitute Term Obligations, ABL
Obligations or Notes Obligations as the Company and/or any other Grantor may designate).




          20.04. Information Concerning Financial Condition of Holdings and Its Subsidiaries. The Term
Collateral Agent and the Term Secured Parties, the ABL Collateral Agent and the ABL Secured Parties
and the Notes Collateral Agent and the Notes Secured




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Parties, shall each be responsible for keeping
themselves informed of (a) the financial condition of Holdings and its Subsidiaries and all
endorsers and/or guarantors of the Term Obligations, the ABL Obligations or the Notes Obligations
and (b) all other circumstances bearing upon the risk of nonpayment of the ABL Obligations, the
Term Obligations or the Notes Obligations. The Term Collateral Agent and Term Secured Parties
shall have no duty to advise the ABL Collateral Agent, any ABL Secured Parties, the Notes
Collateral Agent or any Notes Secured Parties of information known to it or them regarding such
condition or any such circumstances or otherwise. The ABL Collateral Agent and ABL Secured Parties
shall have no duty to advise the Term Collateral Agent, any Term Secured Parties, the Notes
Collateral Agent or any Notes Secured Parties of information known to it or them regarding such
condition or any such circumstances or otherwise. The Notes Collateral Agent and Notes Secured
Parties shall have no duty to advise the Term Collateral Agent, any Term Secured Parties, the ABL
Collateral Agent or any ABL Secured Parties of information known to it or them regarding such
condition or any such circumstances or otherwise. In the event that any of the Term Collateral
Agent, any of the Term Secured Parties, the ABL Collateral Agent, any of the ABL Secured Parties,
the Notes Collateral Agent or any Notes Secured Parties, in its or their sole discretion,
undertakes at any time or from time to time to provide any such information to any other party
hereto, it or they shall be under no obligation (w) to make, and such informing arty shall not
make, any express or implied representation or warranty, including with respect to the accuracy,
completeness, truthfulness or validity of any such information so provided, (x) to provide any
additional information or to provide any such information on any subsequent occasion, (y) to
undertake any investigation or (z) to disclose any information which, pursuant to accepted or
reasonable commercial finance practices, such party wishes to maintain confidential or is otherwise
required to maintain confidential.




          20.05. Submission to Jurisdiction; Waivers.




          (a) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY
OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH
PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (a) ACCEPTS GENERALLY
AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (b) WAIVES ANY DEFENSE
OF FORUM NON CONVENIENS; (c) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH
COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE
PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 6.6; AND (d) AGREES THAT SERVICE AS
PROVIDED IN CLAUSE (c) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE
PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING
SERVICE IN EVERY RESPECT.




          (b) EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER. THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY




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BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER HEREOF, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS
AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS
A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS
WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS
RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED
THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY
REFERRING TO THIS SECTION 6.5(b) AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.




          20.06. Notices. All notices to the ABL Secured Parties, the Term Secured Parties and the
Notes Secured Parties permitted or required under this Agreement shall also be sent to the ABL
Collateral Agent, the Term Collateral Agent and the Notes Collateral Agent, respectively. Unless
otherwise specifically provided herein, any notice hereunder shall be in writing and may be
personally served, telexed or sent by telefacsimile or United States mail or courier service and
shall be deemed to have been given when delivered in person or by courier service and signed for
against receipt thereof, upon receipt of telefacsimile or telex, or three Business Days after
depositing it in the United States mail with postage prepaid and properly addressed. For the
purposes hereof, the addresses of the parties hereto shall be as set forth below each party’s name
on the signature pages hereto, or, as to each party, at such other address as may be
designated by such party in a written notice to all of the other parties.




          20.07. Further Assurances. The Term Collateral Agent, on behalf of itself and the Term
Secured Parties, the ABL Collateral Agent, on behalf of itself and the ABL Secured Parties, the
Notes Collateral Agent, on behalf of itself and the Notes Secured parties, and each Grantor, agrees
that each of them shall take such further action and shall execute (without recourse or warranty)
and deliver such additional documents and instruments (in recordable form, if requested) as the
Term Collateral Agent, the ABL Collateral Agent or the Notes Collateral Agent may reasonably
request to effectuate the terms of and the lien priorities contemplated by this Agreement. The
parties hereto agree, subject to the other provisions of this Agreement:





     (a) upon request by the Term Collateral Agent, the ABL Collateral Agent or the Notes
Collateral Agent, to cooperate in good faith (and to direct their counsel to cooperate in
good faith) from time to time in order to determine the specific items included in the TL
Priority Collateral and the ABL Priority Collateral and the steps taken to perfect their
respective Liens thereon and the identity of the respective parties



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obligated under the Term
Documents, the ABL Documents and the Notes Documents; and




     (b) that the Term Security Documents, the ABL Security Documents and the Notes Security
Documents creating Liens on the TL Priority Collateral and the ABL Priority Collateral shall
be in all material respects the same forms of documents other than with respect to the First
Priority, the Second Priority and Third Priority nature of the Liens created thereunder in
such Collateral.



          20.08. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAW PROVISIONS (OTHER THAN SECTIONS-1401
AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATION LAWS).




          20.09. Binding on Successors and Assigns. This Agreement shall be binding upon the parties
hereto, the Term Secured Parties, the ABL Secured Parties, the Notes Secured Parties and their
respective successors and assigns.




          20.10. Specific Performance. Each of the Term Collateral Agent, the ABL Collateral Agent and
the Notes Collateral Agent may demand specific performance of this Agreement. The Term Collateral
Agent, on behalf of itself and the Term Secured Parties, the ABL Collateral Agent, on behalf of
itself and the ABL Secured Parties, and the Notes Collateral Agent, on behalf of itself and
the Notes Secured Parties, hereby irrevocably waives any defense based on the adequacy of a remedy
at law and any other defense which might be asserted to bar the remedy of specific performance in
any action which may be brought by the Term Collateral Agent, the ABL Collateral Agent or the Notes
Collateral Agent, as the case may be.




          20.11. Headings. Section headings in this Agreement are included herein for convenience of
reference only and shall not constitute a part of this Agreement for any other purpose or be given
any substantive effect.




          20.12. Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto in different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. Delivery of an executed counterpart
of a signature page of this Agreement or any document or instrument delivered in connection
herewith by telecopy shall be effective as delivery of a manually executed counterpart of this
Agreement or such other document or instrument, as applicable.




          20.13. Authorization; No Conflict. Each of the parties represents and warrants to all other
parties hereto that the execution, delivery and performance by or on behalf of such party to this
Agreement has been duly authorized by all necessary action, corporate or otherwise, does not
violate any provision of law, governmental regulation, or any agreement or instrument by which such
party is bound, and requires no governmental or other consent that has not been obtained and is not
in full force and effect.





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          20.14. No Third Party Beneficiaries. This Agreement and the rights and benefits hereof shall
inure to the benefit of the Term Secured Parties, the ABL Secured Parties, the Notes Secured
Parties and each of their respective successors and assigns. No other Person shall have or be
entitled to assert rights or benefits hereunder.




          20.15. Provisions Solely to Define Relative Rights.




          (a) The provisions of this Agreement are and are intended solely for the purpose of defining
the relative rights of the Term Secured Parties, the ABL Secured Parties and the Notes Secured
Parties. None of the Company, any other Grantor or any other creditor thereof shall have any
rights hereunder. Nothing in this Agreement is intended to or shall impair the obligations of the
Company or any other Grantor, which are absolute and unconditional, to pay the Term Obligations,
the ABL Obligations and the Notes Obligations as and when the same shall become due and payable in
accordance with their terms.




          (b) Nothing in this Agreement shall relieve the Company or any Grantor from the performance
of any term, covenant, condition or agreement on the Company’s or such Grantor’s part to be
performed or observed under or in respect of any of the Collateral pledged by it or from any
liability to any Person under or in respect of any of such Collateral or impose any obligation on
any Collateral Agent to perform or observe any such term, covenant, condition or agreement on the
Company’s or such Grantor’s part to be so performed or observed or impose any liability on any
Collateral Agent for any act or omission on the part of the Company’s or such any Grantor relative
thereto or for any breach of any representation or warranty on the part of the Company or such
Grantor contained in this Agreement or any ABL Document or any Term Document or any Notes
Document, or in respect of the Collateral pledged by it. The obligations of the Company and each
Grantor contained in this paragraph shall survive the termination of this Agreement and the
discharge of the Company’s or such Grantor’s other obligations hereunder.




          (c) Each of the Collateral Agents and the Administrative Agents acknowledge and agree that
neither has made any representation or warranty with respect to the execution, validity, legality,
completeness, collectability or enforceability of any other ABL Document, any Term Document or any
Notes Document. Except as otherwise provided in this Agreement, each of the Collateral Agents and
the Administrative Agents will be entitled to manage and supervise their respective extensions of
credit to Holdings or any of its Subsidiaries in accordance with law and their usual practices,
modified from time to time as they deem appropriate.




          20.16. Additional Grantors. Holdings and the Company will cause each Person that becomes a
Grantor or is a Domestic Subsidiary required by any Term Document, ABL Document or Notes Document
to become a party to this Agreement to become a party to this Agreement, for all purposes of this
Agreement, by causing such Person to execute and deliver to the parties hereto an Intercreditor
Agreement Joinder, whereupon such Person will be bound by the terms hereof to the same extent as if
it had executed and delivered this Agreement as of the date hereof. Holdings and the Company shall
promptly provide each Collateral Agent and the Notes Collateral Agent with a copy of each
Intercreditor Agreement Joinder executed and delivered pursuant to this Section 6.16.




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          20.17. Avoidance Issues. If any ABL Secured Party, Term Secured Party or Notes Secured Party
is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay
to the estate of the Company or any other Grantor any amount (a “Recovery”), then such ABL
Secured Party, Term Secured Party or Notes Secured Party, as applicable, shall be entitled to a
reinstatement of ABL Obligations, Term Obligations or Notes Obligations, as applicable, with
respect to all such recovered amounts. If this Agreement shall have been terminated prior to such
Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination
shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties
hereto from such date of reinstatement.




          20.18. Intercreditor Agreement. This Agreement is the Intercreditor Agreement referred to in
the ABL Credit Agreement, the Term Credit Agreement and the Indenture. Nothing in this Agreement
shall be deemed to subordinate the right of any ABL Secured Party to receive payment to the right
of any Term Secured Party to receive payment or of any Term Secured Party to receive payment to the
right of any ABL Secured Party to receive payment or the right of any Notes Secured Party to
receive payment to the right of any Term Secured Party or ABL Secured Party to receive payment
(whether before or after the occurrence of an Insolvency or Liquidation Proceeding), it being the
intent of the parties that this Agreement shall effectuate a subordination of Liens but not a
subordination of Indebtedness.




          20.19. Foreign Collateral. For avoidance of doubt, it is understood and agreed that the Bermuda
Term Borrower and various Foreign Subsidiaries of Holdings, the Company and/or the Bermuda Term
Borrower have granted security interests in certain of their property, securing their Term
Obligations, and that as of the date of this Agreement, no such security interests have been
provided by the Bermuda Term Borrower or any other Foreign Subsidiary to secure any ABL Obligations
or Notes Obligations. It is understood and agreed by all parties hereto that this Agreement does
not apply to any security interests granted by the Bermuda Term Borrower or any other Foreign
Subsidiary, and that any assets or property pledged by the Bermuda Term Borrower or any other
Foreign Subsidiary to secure (or which are subject to a Lien to secure) any Term Obligations or ABL
Obligations or Notes Obligations shall not be subject to the terms or provisions of this Agreement.
Neither the Bermuda Term Borrower nor any Foreign Subsidiary shall constitute a Grantor hereunder
or be bound by the provisions hereof. It is also understood and agreed by all parties hereto that
neither Holdings nor Intermediate Holdco shall be required to grant a security interest in, or Lien
on any of their assets or property to secure the Notes or the Notes Obligations.




          20.20. Cash Collateral (Term Credit Agreement). The parties hereto acknowledge and agree
that, all cash and Cash Equivalents (as defined in the Term Credit Agreement as in effect on the
date hereof, after giving effect to the Restatement Effective Date as defined therein) actually
delivered to the Term Administrative Agent or Term Collateral Agent pursuant to Sections 2B.07
and/or 4.02(a) of the Term Credit Agreement, but in each case only to the extent of the aggregate
stated amounts and/or face amounts of letters of credit and bank guarantees (calculated in
accordance with the Term Credit Agreement) exceed the sum of (x) the relevant commitments
thereunder plus (y) any required cushion or over-collateralization thereof, then such cash and Cash
Equivalents may be held as collateral as provided in the Term Credit Agreement and shall constitute
TL Priority Collateral rather than ABL Priority Collateral.




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          20.21. Credit-Linked Deposits. The parties hereto acknowledge and agree that,
notwithstanding anything to the contrary contained herein, the Credit-Linked Deposits (as defined
in the Term Credit Agreement) shall remain property of the respective Term Lenders as provided in
the Term Credit Agreement
and shall not constitute Collateral hereunder; provided, that, without limiting the
foregoing, if, notwithstanding the foregoing, such Credit Linked Deposits (or any portion thereof)
are deemed to be Collateral (whether as a matter of applicable law or otherwise) then such
CreditLinked Deposits or the applicable portion thereof, as the case may be, shall be deemed to
constitute TL Priority Collateral, rather than ABL Priority Collateral, for all purposes hereunder.




* * *




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          IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor Agreement to be executed
by their respective officers or representatives as of the day and year first above written.




	 	 	 
	Each assignor’s address is as listed

	 	DHM HOLDING COMPANY, INC.
	on Annex A attached hereto

	 	DOLE HOLDING COMPANY, LLC
	 

	 	DOLE FOOD COMPANY, INC.
	 

	 	CALAZO CORPORATION
	 

	 	AG 1970, INC.
	 

	 	AG 1971, INC.
	 

	 	AG 1972, INC.
	 

	 	ALYSSUM CORPORATION
	 

	 	BARCLAY HOLLANDER CORPORATION
	 

	 	BUD ANTLE, INC.
	 

	 	CALICAHOMES, INC.
	 

	 	CALIFORNIA POLARIS, INC.
	 

	 	CB NORTH, LLC
	 

	 	CB SOUTH, LLC
	 

	 	DOLE ABPIK, INC.
	 

	 	DOLE ARIZONA DRIED FRUIT AND NUT COMPANY
	 

	 	DOLE CARROT COMPANY
	 

	 	DOLE CITRUS
	 

	 	DOLE DF&N, INC.
	 

	 	DOLE DRIED FRUIT AND NUT COMPANY, 
	 

	 	A CALIFORNIA GENERAL PARTNERSHIP
	 

	 	DOLE FARMING, INC.
	 

	 	DOLE FRESH VEGETABLES, INC.
	 

	 	DOLE ORLAND, INC.
	 

	 	DOLE PACKAGED FOODS, LLC
	 

	 	E.T. WALL COMPANY
	 

	 	EARLIBEST ORANGE ASSOCIATION, INC.
	 

	 	FALLBROOKE CITRUS COMPANY, INC.
	 

	 	LINDERO HEADQUARTERS COMPANY, INC.
	 

	 	LINDERO PROPERTY, INC.






 









 





	 	 	 	 	 
	 	MILAGRO RANCH, LLC

OCEANVIEW PRODUCE COMPANY

PRAIRIE VISTA, INC.

RANCHO MANANA, LLC

ROYAL PACKING CO.

VELTMAN TERMINAL CO.

BANANERA ANTILLANA (COLOMBIA), INC.	 
	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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	 	CLOVIS CITRUS ASSOCIATION
	 

	 	DELPHINIUM CORPORATION
	 

	 	DOLE BERRY COMPANY, LLC
	 

	 	DOLE EUROPE COMPANY
	 

	 	DOLE FOODS FLIGHT OPERATIONS, INC.
	 

	 	DOLE NORTHWEST, INC.
	 

	 	DOLE SUNFRESH EXPRESS, INC.
	 

	 	STANDARD FRUIT AND STEAMSHIP COMPANY
	 

	 	STANDARD FRUIT COMPANY
	 

	 	SUN COUNTRY PRODUCE, INC.
	 

	 	WEST FOODS, INC.
	 

	 	COOL ADVANTAGE, INC.
	 

	 	COOL CARE, INC.
	 

	 	SAW GRASS TRANSPORT, INC.
	 

	 	BLUE ANTHURUIM, INC.
	 

	 	CERULEAN, INC.
	 

	 	DOLE DIVERSIFIED, INC.
	 

	 	DOLE LAND COMPANY, INC.
	 

	 	DOLE PACKAGED FOODS CORPORATION
	 

	 	LA PETITE D’AGEN, INC.
	 

	 	M K DEVELOPMENT, INC.
	 

	 	MALAGA COMPANY, INC.
	 

	 	MUSCAT, INC.
	 

	 	OAHU TRANSPORT COMPANY, LIMITED
	 

	 	WAHIAWA WATER COMPANY, INC.
	 

	 	ZANTE CURRANT, INC.
	 

	 	DIVERSIFIED IMPORTS CO.
	 

	 	DOLE ASSETS, INC.
	 

	 	DOLE FRESH FRUIT COMPANY
	 

	 	DOLE HOLDINGS, INC.
	 

	 	DOLE LOGISTICS SERVICES, INC.
	 

	 	DOLE OCEAN CARGO EXPRESS, INC.
	 

	 	DOLE OCEAN LINER EXPRESS, INC.
	 

	 	RENAISSANCE CAPITAL CORPORATION






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	 	SUN GIANT, INC.

DNW SERVICES COMPANY

PACIFIC COAST TRUCK COMPANY

PAN-ALASKA FISHERIES, INC.	 
	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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	Address:

	 	DEUTSCHE BANK AG NEW YORK
	 

	 	BRANCH, as Term Collateral Agent
	 
	 	 
	60 Wall Street
	 	 
	New York, NY 10005
	 	 
	Attention: Marguerite Sutton
	 	 
	Telecopier: 212-797-5690
	 	 






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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	Address:
	 	DEUTSCHE BANK AG NEW YORK
	 
	 	BRANCH, as ABL Collateral Agent
	 
	 	 
	60 Wall Street
	 	 
	New York, NY 10005
	 	 
	Attention: Marguerite Sutton
	 	 
	Telecopier: 212-797-5690
	 	 






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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	Address:

	 	U.S. BANK NATIONAL ASSOCIATION,
	 

	 	as Notes Collateral Agent
	 
	 	 
	EP-MN-WS3C
	 	 
	60 Livingston Avenue
	 	 
	St. Paul, MN 55107
	 	 
	Attention: Corporate Trust Services

	 	
	Telecopier: (651) 495-8097
	 	 






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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