exv4w15






exhibit 4.15



 

 


DOLE FOOD COMPANY, INC.,




as Issuer




THE GUARANTORS PARTY HERETO,




as Guarantors




13 7/8% Senior Secured Notes due 2014




 






INDENTURE




Dated as of March 18, 2009




 






U.S. BANK NATIONAL ASSOCIATION

as Trustee




 

 



 









 





CROSS-REFERENCE TABLE*




	 	 	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	310
	(a)(1)	 	7.10
	 
	 	(a)(2)	 	7.10
	 
	 	(a)(3)	 	N.A.
	 
	 	(a)(4)	 	N.A.
	 
	 	(a)(5)	 	7.10
	 
	 	(b)	 	7.3, 7.8, 7.10
	 
	 	(c)	 	N.A.
	311
	(a)	 	7.11
	 
	 	(b)	 	7.11
	 
	 	(c)	 	N.A.
	312
	(a)	 	2.5
	 
	 	(b)	 	14.3
	 
	 	(c)	 	14.3
	313
	(a)	 	7.6
	 
	 	(b)(1)	 	7.6
	 
	 	(b)(2)	 	7.6
	 
	 	(c)	 	7.6, 14.2
	 
	 	(d)	 	7.6
	314
	(a)	 	4.3, 4.4, 14.5, 14.2
	 
	 	(b)	 	13.2
	 
	 	(c)(1)	 	14.4
	 
	 	(c)(2)	 	14.4
	 
	 	(c)(3)	 	14.4
	 
	 	(d)	 	N.A.
	 
	 	(e)	 	14.5
	 
	 	(f)	 	N.A.
	315
	(a)	 	7.1; 7.2
	 
	 	(b)	 	7.5, 14.2
	 
	 	(c)	 	7.1
	 
	 	(d)	 	7.1
	 
	 	(e)	 	6.12
	316
	(a)(last sentence)	 	2.9
	 
	 	(a)(1)(A)	 	6.5
	 
	 	(a)(1)(B)	 	6.4
	 
	 	(a)(2)	 	N.A.
	 
	 	(b)	 	6.7
	 
	 	(c)	 	N.A.
	317
	(a)(1)	 	6.8
	 
	 	(a)(2)	 	6.10
	 
	 	(b)	 	2.4
	318
	(a)	 	14.1
	 
	 	(b)	 	N.A.
	 
	 	(c)	 	14.1








 




			
	*	 	This Cross-Reference Table shall not, for any purpose,
be deemed a part of the Indenture.





N.A. means not applicable.





-2-











 





TABLE OF CONTENTS




	 	 	 	 	 	 
	 	 	 	 	Page
	 	 	 
	 	 	 
	 	 	ARTICLE I.
	 	 	 
	 	 	 
	 	 	 
	 	 	DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	 
	 	 	 
	 	 	 
	Section 1.1.
	 	Definitions

	 	 	1
	Section 1.2.
	 	Other Definitions

	 	 	34
	Section 1.3.
	 	Incorporation by Reference of Trust Indenture Act

	 	 	34
	Section 1.4.
	 	Rules of Construction

	 	 	35
	Section 1.5.
	 	Acts of Holders

	 	 	35
	 	 	 
	 	 	 
	 	 	ARTICLE II.
	 	 	 
	 	 	 
	 	 	 
	 	 	THE NOTES
	 	 	 
	 	 	 
	 	 	 
	Section 2.1.
	 	Form and Dating

	 	 	36
	Section 2.2.
	 	Execution and Authentication

	 	 	37
	Section 2.3.
	 	Registrar and Paying Agent

	 	 	38
	Section 2.4.
	 	Paying Agents To Hold Money in Trust

	 	 	38
	Section 2.5.
	 	Holder Lists

	 	 	39
	Section 2.6.
	 	Transfer and Exchange

	 	 	39
	Section 2.7.
	 	Replacement Notes

	 	 	54
	Section 2.8.
	 	Outstanding Notes

	 	 	55
	Section 2.9.
	 	Treasury Notes

	 	 	55
	Section 2.10.
	 	Temporary Notes

	 	 	56
	Section 2.11.
	 	Cancellation

	 	 	56
	Section 2.12.
	 	Defaulted Interest

	 	 	56
	Section 2.13.
	 	Persons Deemed Owners

	 	 	56
	Section 2.14.
	 	CUSIP and ISIN Numbers

	 	 	57
	 	 	 
	 	 	 
	 	 	ARTICLE III.
	 	 	 
	 	 	 
	 	 	 
	 	 	REDEMPTION AND REPURCHASE
	 	 	 
	 	 	 
	 	 	 
	Section 3.1.
	 	Notices to Trustee

	 	 	57
	Section 3.2.
	 	Selection of Notes

	 	 	58
	Section 3.3.
	 	Notice of Optional or Special Redemption

	 	 	58
	Section 3.4.
	 	Effect of Notice of Redemption

	 	 	59
	Section 3.5.
	 	Deposit of Redemption Price or Purchase Price

	 	 	60
	Section 3.6.
	 	Notes Redeemed or Repurchased in Part

	 	 	60
	Section 3.7.
	 	Optional Redemption

	 	 	60
	Section 3.8.
	 	Optional Redemption upon Equity Offerings

	 	 	60
	Section 3.9.
	 	Repurchase upon Change of Control Offer

	 	 	61
	Section 3.10.
	 	Repurchase upon Application of Excess Proceeds

	 	 	63






-i-









 






	 	 	 	 	 	 
	 	 	 	 	Page
	 	 	 
	 	 	 
	Section 3.11.
	 	Repurchase upon Event of Loss Offer

	 	 	65
	 	 	 
	 	 	 
	 	 	ARTICLE IV.
	 	 	 
	 	 	 
	 	 	 
	 	 	COVENANTS
	 	 	 
	 	 	 
	 	 	 
	Section 4.1.
	 	Payment of Principal and Interest

	 	 	67
	Section 4.2.
	 	Maintenance of Office or Agency

	 	 	67
	Section 4.3.
	 	Reports

	 	 	68
	Section 4.4.
	 	Compliance Certificate

	 	 	68
	Section 4.5.
	 	Taxes

	 	 	69
	Section 4.6.
	 	Stay, Extension and Usury Laws

	 	 	69
	Section 4.7.
	 	Limitation on Restricted Payments

	 	 	70
	Section 4.8.
	 	Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries

	 	 	74
	Section 4.9.
	 	Limitation on Incurrence of Additional Indebtedness

	 	 	75
	Section 4.10.
	 	Limitation on Asset Sales

	 	 	76
	Section 4.11.
	 	Limitations on Transactions with Affiliates

	 	 	79
	Section 4.12.
	 	Limitation on Liens

	 	 	81
	Section 4.13.
	 	Continued Existence

	 	 	81
	Section 4.14.
	 	Insurance Matters

	 	 	81
	Section 4.15.
	 	Offer to Repurchase upon Change of Control

	 	 	82
	Section 4.16.
	 	Additional Subsidiary Guarantees

	 	 	82
	Section 4.17.
	 	Conduct of Business

	 	 	83
	Section 4.18.
	 	Payments for Consent

	 	 	83
	Section 4.19.
	 	Limitation on Issuance of Preferred Stock of Restricted Subsidiaries

	 	 	83
	Section 4.20.
	 	Prohibition on Incurrence of Senior Subordinated Guarantees

	 	 	83
	Section 4.21.
	 	Limitation of Guarantees by Restricted Subsidiaries

	 	 	84
	Section 4.22.
	 	[Intentionally Omitted]

	 	 	84
	Section 4.23.
	 	[Intentionally Omitted]

	 	 	84
	Section 4.24.
	 	Events of Loss

	 	 	84
	Section 4.25.
	 	Further Assurances

	 	 	86
	 	 	 
	 	 	 
	 	 	ARTICLE V.
	 	 	 
	 	 	 
	 	 	 
	 	 	SUCCESSORS
	 	 	 
	 	 	 
	 	 	 
	Section 5.1.
	 	Merger, Consolidation and Sale of Assets

	 	 	86
	Section 5.2.
	 	Successor Corporation Substituted

	 	 	89
	 	 	 
	 	 	 
	 	 	ARTICLE VI.
	 	 	 
	 	 	 
	 	 	 
	 	 	DEFAULTS AND REMEDIES
	 	 	 
	Section 6.1.
	 	Events of Default

	 	 	89
	Section 6.2.
	 	Acceleration

	 	 	91






-ii-









 






	 	 	 	 	 	 
	 	 	 	 	Page
	 	 	 
	 	 	 
	Section 6.3.
	 	Other Remedies

	 	 	92
	Section 6.4.
	 	Waiver of Past Defaults

	 	 	93
	Section 6.5.
	 	Control by Majority

	 	 	93
	Section 6.6.
	 	Limitation on Suits

	 	 	93
	Section 6.7.
	 	Rights of Holders of Notes To Receive Payment

	 	 	94
	Section 6.8.
	 	Collection Suit by Trustee

	 	 	94
	Section 6.9.
	 	Notice

	 	 	94
	Section 6.10.
	 	Trustee May File Proofs of Claim

	 	 	94
	Section 6.11.
	 	Priorities

	 	 	95
	Section 6.12.
	 	Undertaking for Costs

	 	 	95
	Section 6.13.
	 	Appointment and Authorization of U.S. Bank National Association as Collateral Agent

	 	 	96
	 	 	 
	 	 	 
	 	 	ARTICLE VII.
	 	 	 
	 	 	 
	 	 	 
	 	 	TRUSTEE
	 	 	 
	 	 	 
	 	 	 
	Section 7.1.
	 	Duties of Trustee

	 	 	96
	Section 7.2.
	 	Rights of Trustee

	 	 	97
	Section 7.3.
	 	Individual Rights of Trustee

	 	 	99
	Section 7.4.
	 	Trustee’s Disclaimer

	 	 	99
	Section 7.5.
	 	Notice of Defaults

	 	 	100
	Section 7.6.
	 	Reports by Trustee to Holder of the Notes

	 	 	100
	Section 7.7.
	 	Compensation, Reimbursement and Indemnity

	 	 	100
	Section 7.8.
	 	Replacement of Trustee

	 	 	101
	Section 7.9.
	 	Successor Trustee by Merger, Etc.

	 	 	102
	Section 7.10.
	 	Eligibility; Disqualification

	 	 	102
	Section 7.11.
	 	Preferential Collection of Claims Against Company

	 	 	103
	Section 7.12.
	 	Collateral Agent

	 	 	103
	 	 	 
	 	 	 
	 	 	ARTICLE VIII.
	 	 	 
	 	 	 
	 	 	 
	 	 	LEGAL DEFEASANCE AND COVENANT DEFEASANCE
	 	 	 
	 	 	 
	 	 	 
	Section 8.1.
	 	Option To Effect Legal Defeasance or Covenant Defeasance

	 	 	103
	Section 8.2.
	 	Legal Defeasance and Discharge

	 	 	103
	Section 8.3.
	 	Covenant Defeasance

	 	 	104
	Section 8.4.
	 	Conditions to Legal or Covenant Defeasance

	 	 	104
	Section 8.5.
	 	Deposited Money and U.S. Government Obligations To Be Held in Trust; Other Miscellaneous Provisions

	 	 	106
	Section 8.6.
	 	Repayment to the Company

	 	 	107
	Section 8.7.
	 	Reinstatement

	 	 	107






-iii-









 






	 	 	 	 	 	 
	 	 	 	 	Page
	 	 	 
	 	 	 
	 	 	ARTICLE IX.
	 	 	 
	 	 	 
	 	 	 
	 	 	AMENDMENT, SUPPLEMENT AND WAIVER
	 	 	 
	 	 	 
	 	 	 
	Section 9.1.
	 	Without Consent of Holders of Notes

	 	 	107
	Section 9.2.
	 	With Consent of Holders of Notes

	 	 	108
	Section 9.3.
	 	Compliance with Trust Indenture Act

	 	 	110
	Section 9.4.
	 	Revocation and Effect of Consents

	 	 	111
	Section 9.5.
	 	Notation on or Exchange of Notes

	 	 	111
	Section 9.6.
	 	Trustee To Sign Amendment, Etc.

	 	 	111
	 	 	 
	 	 	 
	 	 	ARTICLE X.
	 	 	 
	 	 	 
	 	 	 
	 	 	SUBORDINATION OF THE GUARANTEES
	 	 	 
	 	 	 
	 	 	 
	Section 10.1.
	 	Guarantees Subordinated to Guarantor Senior Debt

	 	 	111
	Section 10.2.
	 	Suspension of Payment When Guarantor Senior Debt Is in Default

	 	 	112
	Section 10.3.
	 	Guarantees Subordinated to Prior Payment of All Guarantor Senior Debt on Dissolution,
Liquidation or Reorganization of the Guarantors

	 	 	114
	Section 10.4.
	 	Payments May Be Paid Prior to Dissolution

	 	 	115
	Section 10.5.
	 	Holders To Be Subrogated to Rights of Holders of Guarantor Senior Debt

	 	 	116
	Section 10.6.
	 	Obligations of Guarantors Unconditional

	 	 	116
	Section 10.7.
	 	Notice to Trustee

	 	 	116
	Section 10.8.
	 	Reliance on Judicial Order or Certificate of Liquidating Agent

	 	 	117
	Section 10.9.
	 	Trustee’s Relation to Guarantor Senior Debt

	 	 	117
	Section 10.10.
	 	Subordination Rights Not Impaired by Acts or Omissions of the Guarantors or Holders of Guarantor Senior Debt

	 	 	118
	Section 10.11.
	 	Securityholders Authorize Trustee To Effectuate Subordination of Guarantees

	 	 	118
	Section 10.12.
	 	This Article X Not To Prevent Events of Default

	 	 	119
	Section 10.13.
	 	Trustee’s Compensation Not Prejudiced

	 	 	119
	 	 	 
	 	 	 
	 	 	ARTICLE XI.
	 	 	 
	 	 	 
	 	 	 
	 	 	GUARANTEE
	 	 	 
	 	 	 
	 	 	 
	Section 11.1.
	 	Unconditional Guarantee

	 	 	119
	Section 11.2.
	 	Severability

	 	 	120
	Section 11.3.
	 	Limitation of Guarantor’s Liability

	 	 	120
	Section 11.4.
	 	Release of Guarantor

	 	 	120
	Section 11.5.
	 	Immediate Payment

	 	 	121
	Section 11.6.
	 	Waiver of Subrogation

	 	 	121
	Section 11.7.
	 	Execution of Guarantee

	 	 	122
	Section 11.8.
	 	Waiver of Stay, Extension or Usury Laws

	 	 	122






-iv-









 






	 	 	 	 	 	 
	 	 	 	 	Page
	 	 	 
	 	 	 
	 	 	ARTICLE XII.
	 	 	 
	 	 	 
	 	 	 
	 	 	SATISFACTION AND DISCHARGE
	 	 	 
	 	 	 
	 	 	 
	Section 12.1.
	 	Satisfaction and Discharge

	 	 	122
	Section 12.2.
	 	Application of Trust

	 	 	123
	 	 	 
	 	 	 
	 	 	ARTICLE XIII.
	 	 	 
	 	 	 
	 	 	 
	 	 	SECURITY
	 	 	 
	 	 	 
	 	 	 
	Section 13.1.
	 	Security Documents; Additional Collateral

	 	 	124
	Section 13.2.
	 	Recording, Registration and Opinions

	 	 	124
	Section 13.3.
	 	Releases of Liens on Collateral

	 	 	125
	Section 13.4.
	 	Form and Sufficiency of Release

	 	 	125
	Section 13.5.
	 	Possession and Use of Collateral

	 	 	126
	Section 13.6.
	 	Purchaser Protected

	 	 	126
	Section 13.7.
	 	Authorization of Actions To Be Taken by the Collateral Agent Under the Security
Documents

	 	 	126
	Section 13.8.
	 	Authorization of Receipt of Funds by the Trustee Under the
Security Agreement

	 	 	126
	Section 13.9.
	 	Powers Exercisable by Receiver or Collateral Agent

	 	 	127
	 	 	 
	 	 	 
	 	 	ARTICLE XIV.
	 	 	 
	 	 	 
	 	 	 
	 	 	MISCELLANEOUS
	 	 	 
	 	 	 
	 	 	 
	Section 14.1.
	 	Trust Indenture Act Controls

	 	 	127
	Section 14.2.
	 	Notices

	 	 	127
	Section 14.3.
	 	Communication by Holders of Notes with Other Holders of Notes

	 	 	128
	Section 14.4.
	 	Certificate and Opinion as to Conditions Precedent

	 	 	128
	Section 14.5.
	 	Statements Required in Certificate or Opinion

	 	 	129
	Section 14.6.
	 	Rules by Trustee and Agents

	 	 	129
	Section 14.7.
	 	No Personal Liability of Directors, Officers, Employees and Stockholders

	 	 	129
	Section 14.8.
	 	Governing Law; Submission to Jurisdiction; Waiver of Jury Trial

	 	 	130
	Section 14.9.
	 	No Adverse Interpretation of Other Agreements

	 	 	130
	Section 14.10.
	 	Successors

	 	 	131
	Section 14.11.
	 	Severability

	 	 	131
	Section 14.12.
	 	Counterpart Originals

	 	 	131
	Section 14.13.
	 	Table of Contents, Headings, Etc.

	 	 	131
	Section 14.14.
	 	Intercreditor Agreement

	 	 	131
	 	 	 
	 	 	 
	 	 	EXHIBITS
	 	 	 
	 	 	 
	 	 	 
	Exhibit A
	 	FORM OF NOTE
	 	 	 






-v-









 






	 	 	 	 	 	 
	 	 	 	 	 
	Exhibit B
	 	FORM OF CERTIFICATE OF TRANSFER
	 	 	 
	Exhibit C
	 	FORM OF CERTIFICATE OF EXCHANGE
	 	 	 
	Exhibit D
	 	FORM OF GUARANTEE
	 	 	 







-vi-











 





INDENTURE




          INDENTURE dated as of March 18, 2009 among Dole Food Company, Inc., a Delaware corporation,
the Guarantors (as defined herein) listed on Schedule A hereto and U.S. Bank National Association,
as trustee (the “Trustee”).




          Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders (as defined below) of the Company’s 13 7/8% Senior Secured Notes due
2014 (the “Notes”):




ARTICLE I.




DEFINITIONS AND INCORPORATION BY REFERENCE




Section 1.1. Definitions.




          “ABL Collateral Agent” has the meaning set forth in the Intercreditor Agreement.




          “ABL Credit Agreement” means the Credit Agreement, dated as of April 12, 2006, among
Holdings, Dole Holding Company, LLC, the Company, Deutsche Bank Trust Company Americas, as
Administrative Agent, Banc of America Securities LLC, as syndication agent, The Bank of Nova
Scotia, as documentation agent, Deutsche Bank Securities Inc. and Banc of America Securities LLC,
as joint book runners, and Deutsche Bank Securities Inc., as sole lead arranger, together with the
related documents thereto (including, without limitation, any guarantee agreements and security
documents), in each case as such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any agreement extending
the maturity of, refinancing, replacing or otherwise restructuring (including, without limitation,
increasing the amount of available borrowings thereunder or adding Restricted Subsidiaries of the
Company as additional borrowers or guarantors thereunder) all or any portion of the Indebtedness
under such agreement or any successor or replacement agreement or agreements and whether by the
same or any other agent, lender or group of lenders.




          “ABL Priority Collateral” has the meaning set forth in the Intercreditor Agreement.




          “ABL Security Documents” has the meaning set forth in the Intercreditor Agreement.




          “Acquired Indebtedness” means Indebtedness of a Person or any of its Subsidiaries
existing at the time such Person becomes a Restricted Subsidiary of the Company or at the time it
merges or consolidates with or into the Company or any of its Restricted Subsidiaries or assumed in
connection with the acquisition of assets from such Person and in each case not incurred by such
Person in connection with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary of the Company or such acquisition, merger or consolidation.










 



-2-




          “Additional Interest” has the meaning set forth in the in the Registration Rights
Agreement.




          “Additional Notes” means Notes (other than the Initial Notes and any Exchange Notes
issued in exchange therefor) issued under this Indenture in accordance with Sections 2.2, 4.9 and
4.12 hereof, as part of the same series as the Initial Notes.




          “Affiliate” means, with respect to any specified Person, any other Person who directly
or indirectly through one or more intermediaries controls, or is controlled by, or is under common
control with, such specified Person. The term “control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative of the foregoing.




          “Agent” means any Registrar, Paying Agent or co-registrar.




          “Applicable Procedures” means, with respect to any transfer or exchange of or for
beneficial interests in any Global Note, the rules and procedures of the Depositary that apply to
such transfer or exchange.




          “Asset Acquisition” means (1) an Investment by the Company or any Restricted
Subsidiary of the Company in any other Person pursuant to which such Person shall become a
Restricted Subsidiary of the Company or any Restricted Subsidiary of the Company, or shall be
merged with or into the Company or any Restricted Subsidiary of the Company, or (2) the acquisition
by the Company or any Restricted Subsidiary of the Company of the assets of any Person (other than
a Restricted Subsidiary of the Company) which constitutes all or substantially all of the assets of
such Person or comprises any division or line of business of such Person or any other properties or
assets of such Person other than in the ordinary course of business.




          “Asset Sale” means any direct or indirect sale, issuance, conveyance, transfer, lease
(other than operating leases entered into in the ordinary course of business), assignment or other
transfer for value by the Company or any of its Restricted Subsidiaries (including any Sale and
Leaseback Transaction) to any Person other than the Company, a Guarantor or a Wholly Owned
Restricted Subsidiary of the Company of: (1) any Capital Stock of any Restricted Subsidiary of the
Company; or (2) any other property or assets of the Company or any Restricted Subsidiary of the
Company other than in the ordinary course of business; provided, however, that none
of the following shall be considered an Asset Sale: (a) a transaction or series of related
transactions for which the Company or its Restricted Subsidiaries receive aggregate consideration
of less than $15.0 million; (b) the sale, lease, conveyance, disposition or other transfer of all
or substantially all of the assets of the Company as permitted under Article V; (c) the grant of
Liens not prohibited by this Indenture; (d) any Restricted Payment permitted by Section 4.7 or that
constitutes a Permitted Investment; (e) the sale or discount, in each case without recourse, of
accounts receivable arising in the ordinary course of business, but only in connection with the









 



-3-


compromise or collection thereof; and (f) disposals or replacements of obsolete, worn out,
uneconomical or surplus property or equipment.




          “Asset Swap” means the execution of a definitive agreement, subject only to customary
closing conditions that the Company in good faith believes will be satisfied, for a substantially
concurrent purchase and sale, or exchange, of assets (of a kind used or usable by the Company and
its Restricted Subsidiaries in their business as it exists on the date thereof, or in businesses
that are the same as such business of the Company and its Restricted Subsidiaries on the date
thereof or similar or reasonably related thereto) between the Company or any of its Restricted
Subsidiaries and another Person or group of affiliated Persons; provided, however,
that any amendment to or waiver of any closing condition that individually or in the aggregate is
material to the Asset Swap shall be deemed to be a new Asset Swap.




          “Bankruptcy Law” means Title 11, U.S. Code or any similar Federal or state law for the
relief of debtors.




          “Board of Directors” means, as to any Person, the board of directors (or similar
governing body) of such Person or any duly authorized committee thereof.




          “Board Resolution” means, with respect to any Person, a copy of a resolution certified
by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of
Directors of such Person and to be in full force and effect on the date of such certification, and
delivered to the Trustee.




          “Broker-Dealer” means, any broker or dealer registered under the Exchange Act.




          “Business Day” means any day other than a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by law, regulation or
executive order to remain closed. If a payment date is not a Business Day at a place of payment,
payment may be made at that place on the next succeeding day that is a Business Day, and no
interest shall accrue for the intervening period.




          “Capital Stock” means:





     (1) with respect to any Person that is a corporation, any and all shares, interests,
participations or other equivalents (however designated and whether or not voting) of
corporate stock, including each class of Common Stock and Preferred Stock of such Person,
and all options, warrants or other rights to purchase or acquire any of the foregoing; and




     (2) with respect to any Person that is not a corporation, any and all partnership,
membership or other equity interests of such Person, and all options, warrants or other
rights to purchase or acquire any of the foregoing.









 



-4-


          “Capitalized Lease Obligation” means, as to any Person, the obligations of such Person
under a lease that are required to be classified and accounted for as capital lease obligations
under GAAP and, for purposes of this definition, the amount of such obligations at any date shall
be the capitalized amount of such obligations at such date, determined in accordance with GAAP.




          “Cash Equivalents” means:





     (1) U.S. dollars, pounds sterling, Euros or, in the case of any Foreign Restricted
Subsidiary, such local currencies held by it from time to time in the ordinary course of
business;




     (2) securities issued by, or unconditionally guaranteed by, the United States
Government, the governments of the United Kingdom, Canada, Japan, Sweden, Switzerland or the
member states of the European Union or issued by any agency thereof and backed by the full
faith and credit of the United States, the United Kingdom, Canada, Japan, Sweden,
Switzerland or the member states of the European Union, in each case maturing within one
year from the date of acquisition thereof;




     (3) securities issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof maturing within one year
from the date of acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either Standard & Poor’s Ratings Group (“S&P”) or
Moody’s Investors Service, Inc. (“Moody’s”);




     (4) commercial paper maturing no more than one year from the date of creation thereof
and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1
from Moody’s;




     (5) certificates of deposit or bankers’ acceptances maturing within one year from the
date of acquisition thereof issued by any bank organized under the laws of the United States
of America or any state thereof or the District of Columbia or any U.S. branch of a foreign
bank having at the date of acquisition thereof combined capital and surplus of not less than
$250.0 million or by a commercial bank organized under the laws of a country recognized by
the United States which has a combined capital and surplus of not less than $250.0 million
(or the foreign currency equivalent thereof); or money market funds sponsored by a
registered broker dealer or mutual fund distributor;




     (6) eurodollar time deposits;




     (7) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (1) or (2) above entered into with any bank
meeting the qualifications specified in clause (5) above; and









 



-5-



     (8) investments in money market funds which invest substantially all their assets in
securities of the types described in clauses (1) through (7) above;


provided that for purposes of the subordination provisions, the term “Cash Equivalents”
shall not include obligations of the type referred to in clause (7).




          “Change of Control” means the occurrence of one or more of the following events:





     (1) any sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all or substantially all of the assets of the Company or Holdings
to any Person or group of related Persons for purposes of Section 13(d) of the Exchange Act
(a “Group”), together with any Affiliates thereof (whether or not otherwise in
compliance with the provisions of this Indenture), other than to the Permitted Holders;




     (2) the approval by the holders of Capital Stock of the Company or Holdings, as the
case may be, of any plan or proposal for the liquidation or dissolution of the Company or
Holdings, as the case may be (whether or not otherwise in compliance with the provisions of
this Indenture);




     (3) any Person or Group (other than the Permitted Holders and any entity formed by the
Permitted Holders for the purpose of owning Capital Stock of the Company) shall become the
owner, directly or indirectly, beneficially or of record, of shares representing more than
50% of the aggregate ordinary voting power represented by the issued and outstanding Capital
Stock of the Company or Holdings; or




     (4) the replacement of a majority of the Board of Directors of the Company or Holdings
over a two-year period from the directors who constituted the Board of Directors of the
Company or Holdings, as the case may be, at the beginning of such period, and such
replacement shall not have been approved by a vote of either the holders of a majority of
the shares of Common Stock of Holdings (so long as the Permitted Holders hold a majority of
the Common Stock of Holdings) or at least a majority of the Board of Directors of the
Company or Holdings, as the case may be, then still in office who either were members of
such Board of Directors at the beginning of such period or whose election as a member of
such Board of Directors was previously so approved.



           “Collateral” means, collectively, “Collateral” (as defined in the Security
Agreement), any “Mortgaged Property” (as defined in the Security Agreement), any “Collateral” (as
defined in the Pledge Agreement) and all other property subject or purported to be subject from
time to time to a Lien in favor of the Collateral Agent for its benefit and for the benefit of the
Trustee and the Holders of the Notes and the holders of any Pari Passu Junior Lien Obligations, in
all or any portion of the property as collateral for the Obligations and Pari Passu Junior Lien
Obligations.










 



-6-




          “Collateral Agent” means the Trustee, in its capacity as Collateral Agent under the
Security Documents together with its successors in such capacity.




          “Commission” means the Securities and Exchange Commission.




          “Commodities Agreements” means commodity agreements, hedging agreements and other
similar agreements or arrangements designed to protect the Company or any Restricted Subsidiary of
the Company against price fluctuations of commodities (e.g., fuel) used in their respective
businesses.




          “Common Stock” of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting or non-voting) of,
such Person’s common stock, whether outstanding on the Issue Date or issued after the Issue Date,
and includes, without limitation, all series and classes of such common stock.




          “Company” means Dole Food Company, Inc., a Delaware corporation, until a successor
Person shall have become such pursuant to the applicable provisions of this Indenture, and
thereafter means such successor Person.




          “Consolidated EBITDA” means, with respect to any Person, for any period, the sum
(without duplication) of:





     (1) Consolidated Net Income; and




     (2) to the extent Consolidated Net Income has been reduced thereby:




     (a) all income taxes of such Person and its Restricted Subsidiaries paid or
accrued in accordance with GAAP for such period;




     (b) Consolidated Interest Expense;




     (c) Consolidated Non-cash Charges less any non-cash items increasing
Consolidated Net Income for such period,


all as determined on a consolidated basis for such Person and its Restricted Subsidiaries in
accordance with GAAP; and





     (d) gain or loss on early retirement of long term Indebtedness or early
termination of Interest Swap Obligations, Currency Agreements, Commodities
Agreements or other derivatives permitted by this Indenture.



          “Consolidated Fixed Charge Coverage Ratio” means, with respect to any Person, the
ratio of Consolidated EBITDA of such Person during the four full fiscal quarters (the “Four
Quarter Period”) ending prior to the date of the transaction giving rise to the need to
calculate the Consolidated Fixed Charge Coverage Ratio for which financial statements are available (the










 



-7-



“Transaction Date”) to Consolidated Fixed Charges of such Person for the Four Quarter
Period. In addition to and without limitation of the foregoing, for purposes of this definition,
“Consolidated EBITDA” and “Consolidated Fixed Charges” shall be calculated after giving effect on a
pro forma basis for the period of such calculation to:





     (1) the incurrence or repayment of any Indebtedness of such Person or any of its
Restricted Subsidiaries (and the application of the proceeds thereof) giving rise to the
need to make such calculation and any incurrence or repayment of other Indebtedness (and the
application of the proceeds thereof), other than the incurrence or repayment of Indebtedness
in the ordinary course of business for working capital purposes pursuant to working capital
facilities, occurring during the Four Quarter Period or at any time subsequent to the last
day of the Four Quarter Period and on or prior to the Transaction Date, as if such
incurrence or repayment, as the case may be (and the application of the proceeds thereof),
occurred on the first day of the Four Quarter Period; and




     (2) any Asset Sales or other disposition or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such calculation as a
result of such Person or one of its Restricted Subsidiaries (including any Person who
becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming or
otherwise being liable for Acquired Indebtedness and also including any Consolidated EBITDA
attributable to the assets which are the subject of the Asset Acquisition or Asset Sale or
other disposition during the Four Quarter Period) occurring during the Four Quarter Period
or at any time subsequent to the last day of the Four Quarter Period and on or prior to the
Transaction Date, as if such Asset Sale or other disposition or Asset Acquisition (including
the incurrence, assumption or liability for any such Acquired Indebtedness) occurred on the
first day of the Four Quarter Period.



          For purposes of this definition, whenever pro forma effect is to be given to an Asset
Acquisition and the amount of income or earnings relating thereto, the pro forma calculations shall
be determined in good faith by a responsible financial or accounting Officer of the Company and
shall comply with the requirements of Rule 11-02 of Regulation S-X promulgated by the Commission,
except that such pro forma calculations may include operating expense reductions for such period
resulting from the acquisition which is being given pro forma effect that have been realized or for
which the steps necessary for realization have been taken or are reasonably expected to be taken
within six months following any such Asset Acquisition, including, but not limited to, the
execution or termination of any contracts, the termination of any personnel or the closing (or
approval by the Board of Directors of the Company of any closing) of any facility, as applicable,
provided that, in either case, such adjustments are set forth in an Officers’ Certificate
signed by the Company’s chief financial officer and another Officer which states (i) the amount of
such adjustment or adjustments, (ii) that such adjustment or adjustments are based on the
reasonable good faith beliefs of the Officers executing such Officers’ Certificate at the
time of such execution and (iii) that any related incurrence of Indebtedness is permitted
pursuant to this Indenture.











 



-8-




          If such Person or any of its Restricted Subsidiaries directly or indirectly guarantees
Indebtedness of a third Person, the preceding sentence shall give effect to the incurrence of such
guaranteed Indebtedness as if such Person or any Restricted Subsidiary of such Person had directly
incurred or otherwise assumed such guaranteed Indebtedness.




          Furthermore, in calculating “Consolidated Fixed Charges” for purposes of determining the
denominator (but not the numerator) of this “Consolidated Fixed Charge Coverage Ratio”:





     (1) interest on outstanding Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter shall be deemed to
have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in
effect on the Transaction Date; and




     (2) notwithstanding clause (1) above, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by agreements relating to Interest
Swap Obligations, shall be deemed to accrue at the rate per annum resulting after giving
effect to the operation of such agreements.



          “Consolidated Fixed Charges” means, with respect to any Person for any period, the
sum, without duplication, of:





     (1) Consolidated Interest Expense (excluding the amortization or write-off of deferred
financing costs); plus




     (2) the product of (x) the amount of all dividend payments on any series of Preferred
Stock of such Person and, to the extent permitted under this Indenture, its Restricted
Subsidiaries (other than dividends paid in Qualified Capital Stock) paid, accrued or
scheduled to be paid or accrued during such period times (y) a fraction, the numerator of
which is one and the denominator of which is one minus the then current effective
consolidated federal, state and local income tax rate of such Person, expressed as a
decimal.



          “Consolidated Indebtedness” means, on any date, the principal amount of Indebtedness
of the Company and its Restricted Subsidiaries on such date that would be required to be reflected
as liabilities of the Company on a consolidated balance sheet (excluding the notes thereto) of the
Company prepared on such date in accordance with GAAP.




          “Consolidated Interest Expense” means, with respect to any Person for any period, the
sum of, without duplication:





     (1) the aggregate of the interest expense of such Person and its Restricted
Subsidiaries for such period determined on a consolidated basis in accordance with GAAP,
including without limitation: (a) any amortization of debt discount and amortiza-









 



-9-



tion or
write-off of deferred financing costs; (b) the net costs and/or benefits under Interest Swap
Obligations; (c) all capitalized interest; and (d) the interest portion of any deferred
payment obligation; and




     (2) the interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person and its Restricted Subsidiaries during such
period as determined on a consolidated basis in accordance with GAAP.



          “Consolidated Leverage Ratio” means, on any date, the ratio of (x) Consolidated
Indebtedness on such date to (y) Consolidated EBITDA of the Company during the four full fiscal
quarters (the “Four Quarter Period”) ending prior to the date of the transaction giving rise to the
need to calculate the Consolidated Leverage Ratio for which financial statements are available (the
“Transaction Date”). For purposes of this definition, “Consolidated EBITDA” and “Consolidated
Indebtedness” shall be calculated after giving effect on a pro forma basis for the period of such
calculation to:





     (1) the incurrence or repayment of any Indebtedness of such Person or any of its
Restricted Subsidiaries (and the application of the proceeds thereof) giving rise to the
need to make such calculation and any incurrence or repayment of other Indebtedness (and the
application of the proceeds thereof); and




     (2) any Asset Sales or other disposition or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such calculation as a
result of such Person or one of its Restricted Subsidiaries (including any Person who
becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming or
otherwise being liable for Acquired Indebtedness and also including any Consolidated EBITDA
attributable to the assets which are the subject of the Asset Acquisition or Asset Sale or
other disposition during the Four Quarter Period) occurring during the Four Quarter Period
or at any time subsequent to the last day of the Four Quarter Period and on or prior to the
Transaction Date, as if such Asset Sale or other disposition or Asset Acquisition (including
the incurrence, assumption or liability for any such Acquired Indebtedness) occurred on the
first day of the Four Quarter Period.



          For purposes of this definition, whenever pro forma effect is to be given to an Asset
Acquisition and the amount of income or earnings relating thereto, the pro forma calculations shall
be determined in good faith by a responsible financial or accounting Officer of the Company and
shall comply with the requirements of Rule 11-02 of Regulation S-X promulgated by
the Commission, except that such pro forma calculations may include operating expense
reductions for such period resulting from the acquisition which is being given pro forma effect
that have been realized or for which the steps necessary for realization have been taken or are
reasonably expected to be taken within six months following any such Asset Acquisition, including,
but not limited to, the execution or termination of any contracts, the termination of any personnel
or the closing (or approval by the Board of Directors of the Company of any closing) of any
facility, as applicable, provided that, in either case, such adjustments are set forth in an
Officers’ Certificate










 



-10-



signed by the Company’s chief financial officer and another Officer which
states (i) the amount of such adjustment or adjustments, (ii) that such adjustment or adjustments
are based on the reasonable good faith beliefs of the Officers executing such Officers’ Certificate
at the time of such execution and (iii) that any related incurrence of Indebtedness is permitted
pursuant to this Indenture.




          “Consolidated Net Income” means, with respect to any Person, for any period, the
aggregate net income (or loss) of such Person and its Restricted Subsidiaries for such period on a
consolidated basis, determined in accordance with GAAP; provided that there shall be
excluded therefrom (without duplication):





     (1) after-tax gains and losses from Asset Sales (without regard to the dollar threshold
set forth in the definition thereof) or abandonments or reserves relating thereto;




     (2) after-tax items classified as extraordinary or nonrecurring gains and losses;




     (3) the net income (but not loss) of any Restricted Subsidiary of the referent Person
to the extent that the declaration of dividends or similar distributions by that Restricted
Subsidiary of that income is restricted by a contract, operation of law or otherwise, unless
received;




     (4) the net income of any Person, other than a Restricted Subsidiary of the referent
Person, except to the extent of cash dividends or distributions paid to the referent Person
or to a Restricted Subsidiary of the referent Person by such Person;




     (5) any restoration to income of any contingency reserve, except to the extent that
provision for such reserve was made out of Consolidated Net Income accrued at any time
following the Issue Date;




     (6) income or loss attributable to discontinued operations; and




     (7) in the case of a successor to the referent Person by consolidation or merger or as
a transferee of the referent Person’s assets, any earnings of the successor corporation
prior to such consolidation, merger or transfer of assets.



          Notwithstanding the foregoing, “Consolidated Net Income” shall be calculated without giving
effect to:





     (i) any premiums, fees or expenses incurred in connection with the offering of the
Notes or the amendments to the ABL Credit Agreement and Term Credit Agreement contemplated
by the Offering Memorandum;









 



-11-



     (ii) the amortization, depreciation or non-cash charge of any amounts required or
permitted by Statement of Financial Accounting Standards No. 141, “Business Combinations,”
and No. 142, “Goodwill and Other Intangible Assets,” or any successor pronouncements of the
Financial Accounting Standards Board or with respect to the impairment of the value of any
long-lived assets;




     (iii) the cumulative effect of changes in accounting principles or retrospective
application of changes in accounting principles;




     (iv) the after-tax effect of unrealized gains and losses on Currency Agreements,
Interest Swap Obligations and Commodities Agreements otherwise permitted by this Indenture;




     (v) the impact of non-cash credit adjustments resulting from the application of SFAS
157; and




     (vi) the impact of adjustments resulting from the application of SFAS 144 and SFAS 146.



          “Consolidated Net Worth” of any Person means the consolidated stockholders’ equity of
such Person, determined on a consolidated basis in accordance with GAAP, less (without duplication)
amounts attributable to Disqualified Capital Stock of such Person.




          “Consolidated Non-cash Charges” means, with respect to any Person, for any period, the
aggregate depreciation, amortization and other non-cash expenses of such Person and its Restricted
Subsidiaries reducing Consolidated Net Income of such Person and its Restricted Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP (excluding any such charges
constituting an extraordinary item or loss or any such charge which requires an accrual of or a
reserve for cash charges for any future period).




          “Corporate Trust Office of the Trustee” means the principal office of the Trustee at
which at any time its corporate trust business shall be administered, which office at the date
hereto is located at 60 Livingston Avenue, St. Paul, MN, Attention: Corporate Trust Department, or
such other address as the Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or such other address as
such successor Trustee may designate from time to time by notice to the Holders and the Company).




          “Credit Agreements” means the ABL Credit Agreement and the Term Credit Agreement.




          “Currency Agreement” means any foreign exchange contract, currency swap agreement or
other similar agreement or arrangement designed to protect the Company or any Restricted Subsidiary
of the Company against fluctuations in currency values.











 



-12-




          “Custodian” means the Trustee, as custodian with respect to the Notes in global form,
or any successor entity thereto.




          “DBNY” shall mean Deutsche Bank AG New York Branch.




          “DBSI” shall mean Deutsche Bank Securities Inc.




          “Default” means an event or condition the occurrence of which is, or with the lapse of
time or the giving of notice or both would be, an Event of Default.




          “Definitive Note” means a certificated Note registered in the name of the Holder
thereof and issued in accordance with Section 2.6 hereof, substantially in the form of Exhibit A
hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule
of Exchanges of Interests in the Global Note” attached thereto.




          “Depositary” means, with respect to the Notes issuable in whole or in part in global
form, the Person specified in Section 2.6 hereof as the Depositary with respect to the Notes, until
a successor shall have been appointed and become such pursuant to the applicable provisions or this
Indenture, and, thereafter, “Depositary” shall mean or include such successor.




          “Disqualified Capital Stock” means that portion of any Capital Stock which, by its
terms (or by the terms of any security into which it is convertible or for which it is exchangeable
at the option of the holder thereof), or upon the happening of any event (other than an event which
would constitute a Change of Control or an Asset Sale and other than an event of default as a
result of the bankruptcy, insolvency or similar event of the issuer thereof contained in a security
into which such Capital Stock is convertible or for which it is exchangeable), matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the
sole option of the holder thereof (except, in each case, upon the occurrence of a Change of Control
or an Asset Sale and other than an event of default as a result of the bankruptcy, insolvency or
similar event of the issuer thereof contained in a security into which such Capital Stock is
convertible or for which it is exchangeable) on or prior to the final maturity date of the Notes.




          “Domestic Restricted Subsidiary” means a Restricted Subsidiary incorporated or
otherwise organized or existing under the laws of the United States, any state thereof or any
territory or possession of the United States.




          “Equity Offering” means any public or private sale or issuance of Qualified Capital
Stock of Holdings or the Company; provided that, in the event of an Equity Offering by
Holdings, Holdings contributes to the capital of the Company the portion of the net cash proceeds
of such Equity Offering necessary to pay the aggregate redemption price (plus accrued interest to
the redemption date) of the Notes to be redeemed pursuant to Section 3.8.











 



-13-




          “Event of Loss” means, with respect to any property or asset (tangible or intangible,
real or personal) constituting Collateral with a fair market value in excess of $15.0 million, any
of the following:





     (i) any loss, destruction or damage of such property or asset;




     (ii) any institution of any proceeding for the condemnation or seizure of such property
or asset or for the exercise of any right of eminent domain;




     (iii) any actual condemnation, seizure or taking by exercise of the power of eminent
domain or otherwise of such property or asset, or confiscation of such property or asset or
the requisition of the use of such property or asset; or




     (iv) any settlement in lieu of the matters described in clauses (ii) or (iii) above.



          “Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor
statute or statutes thereto.




          “Exchange Offer” has the meaning set forth in the Registration Rights Agreement.




          “Exchange Offer Registration Statement” has the meaning set forth in the Registration
Rights Agreement.




          “Exchange Notes” has the meaning set forth in the Registration Rights Agreement.




          “Existing Note Guarantees” means the joint and several guarantees of the Company’s
obligations under the Existing Notes Indenture and the Existing Notes on a senior subordinated
basis.




          “Existing Notes” means any outstanding aggregate principal amount of the Company’s
8.75% debentures due 2013.




          “Existing Notes Indenture” means that certain Indenture, dated as of July 15, 1993,
between the Company and Chemical Trust Company of California, as trustee, as the same may be
amended, supplemented or modified from time to time in accordance with the terms thereof.




          “fair market value” means, with respect to any asset or property, the price which
could be negotiated in an arm’s-length, free market transaction, for cash, between a willing seller
and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the
transaction. Fair market value shall be determined by the Board of Directors of the Company acting
reasonably and in good faith and shall be evidenced by a Board Resolution of the Board of Directors
of the Company delivered to the Trustee.











 



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          “First Lien Obligations” means all obligations of the Company and the Guarantors
secured by a Lien on any Collateral that is permitted by clause (2) of the definition of “Permitted
Liens.”




          “Foreign Restricted Subsidiary” means any Restricted Subsidiary other than a Domestic
Restricted Subsidiary.




          “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant segment of the
accounting profession of the United States, which are in effect from time to time.




          “Global Note Legend” means the legend set forth in Section 2.6(g)(2) hereof, which is
required to be placed on all Global Notes issued under this Indenture.




          “Global Notes” means, individually and collectively, each of the Restricted Global
Notes and the Unrestricted Global Notes registered in the name of the Depositary or its nominee,
deposited with the Trustee, as custodian for the Depositary, substantially in the form of Exhibit A
hereto and that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests
in the Global Note” attached thereto, issued in accordance with Section 2.1, 2.6(b)(3), 2.6(b)(4),
2.6(d)(2) or 2.6(f) hereof.




          “Guarantee” has the meaning set forth in Section 11.1.




          “Guarantor” means: (1) certain of the Company’s Domestic Restricted Subsidiaries as of
the Issue Date; and (2) each of the Company’s Restricted Subsidiaries that in the future executes a
supplemental indenture in which such Restricted Subsidiary agrees to be bound by the terms of this
Indenture as a Guarantor; provided that any Person constituting a Guarantor as described
above shall cease to constitute a Guarantor when its respective Guarantee is released in accordance
with the terms of this Indenture.




          “Guarantor Senior Debt” means, with respect to any Guarantor: the principal of,
premium, if any, interest (including any interest accruing subsequent to the filing of a petition
of bankruptcy at the rate provided for in the documentation with respect thereto, whether or not
such interest is an allowed claim under applicable law) on, and all other amounts owing in respect of First Lien Obligations by such Guarantor (including guarantees of the foregoing
obligations).




          “Holder” means a Person in whose name a Note is registered.




          “Holdings” means DHM Holding Company, Inc., a Delaware corporation and the parent of
the Company.










 



-15-




          “Indebtedness” means with respect to any Person, without duplication:





     (1) all Obligations of such Person for borrowed money;




     (2) all Obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;




     (3) all Capitalized Lease Obligations of such Person;




     (4) all Obligations of such Person issued or assumed as the deferred purchase price of
property, all conditional sale obligations and all Obligations under any title retention
agreement (but excluding trade accounts payable and other accrued liabilities arising in the
ordinary course of business that are not overdue by 120 days or more or are being contested
in good faith by appropriate proceedings promptly instituted and diligently conducted and
payables under the Company’s grower loans program in the ordinary course of business and
consistent with past practices);




     (5) all Obligations for the reimbursement of any obligor on any letter of credit,
banker’s acceptance or similar credit transaction;




     (6) guarantees and other contingent obligations in respect of Indebtedness referred to
in clauses (1) through (5) above and clause (8) below;




     (7) all Obligations of any other Person of the type referred to in clauses (1) through
(6) which are secured by any Lien on any property or asset of such Person, the amount of
such Obligation being deemed to be the lesser of the fair market value of such property or
asset or the amount of the Obligation so secured;




     (8) all Obligations under Currency Agreements and Interest Swap Obligations of such
Person; and




     (9) all Disqualified Capital Stock issued by such Person with the amount of
Indebtedness represented by such Disqualified Capital Stock being equal to the greater of
its voluntary or involuntary liquidation preference and its maximum fixed repurchase price,
but excluding accrued dividends, if any.



          For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Capital Stock
which does not have a fixed repurchase price shall be calculated in accordance with the terms of
such Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on any date on
which Indebtedness shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the fair market value of such Disqualified Capital Stock, such fair
market value shall be determined reasonably and in good faith by the Board of Directors of the
issuer of such Disqualified Capital Stock.











 



-16-




          “Indenture” means this Indenture, as amended or supplemented from time to time.




          “Independent Financial Advisor” means a firm: (1) which does not, and whose directors,
officers and employees or Affiliates do not, have a direct or indirect financial interest in the
Company; and (2) which, in the judgment of the Board of Directors of the Company, is otherwise
independent and qualified to perform the task for which it is to be engaged.




          “Indirect Participant” means a Person who holds a beneficial interest in a Global Note
through a Participant.




          “Initial Notes” means the $349,903,000 aggregate principal amount of Notes issued
under this Indenture on the Issue Date.




          “Initial Purchasers” means Deutsche Bank Securities Inc., Banc of America Securities
LLC, Scotia Capital (USA) Inc., Rabo Securities USA, Inc. and Goldman, Sachs & Co.




          “Intercreditor Agreement” means the amended and restated intercreditor agreement dated
as of the Issue Date by and among Holdings, Dole Holding Company, LLC, the Company, the other
Grantors (as defined therein), the ABL Collateral Agent, the Term Collateral Agent and the
Collateral Agent.




          “Interest Swap Obligations” means the obligations of any Person pursuant to any
arrangement with any other Person, whereby, directly or indirectly, such Person is entitled to
receive from time to time periodic payments calculated by applying either a floating or a fixed
rate of interest on a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same notional amount
and shall also include, without limitation, interest rate swaps, caps, floors, collars and similar
agreements.




          “Investment” means, with respect to any Person, any direct or indirect loan or other
extension of credit (including, without limitation, a guarantee) or capital contribution to (by
means of any transfer of cash or other property to others or any payment for property or services
for the account or use of others), or any purchase or acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness issued by, any
other Person. “Investment” shall exclude extensions of trade credit by the Company and its Restricted
Subsidiaries on commercially reasonable terms in accordance with normal trade
practices of the Company or such Restricted Subsidiary, as the case may be. If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes of any Common Stock of any direct
or indirect Restricted Subsidiary of the Company such that, after giving effect to any such sale or
disposition, the Company no longer owns, directly or indirectly, 50% of the outstanding Common
Stock of such Restricted Subsidiary, the Company shall be deemed to have made an Investment on the
date of any such sale or disposition equal to the fair market value of the Common Stock of such
Restricted Subsidiary not sold or disposed of.











 



-17-




          “Issue Date” means March 18, 2009, the date of original issuance of the Notes.




          “Letter of Transmittal” means the letter of transmittal to be prepared by the Company
and sent to all Holders of the Notes for use by such Holders in connection with the Exchange Offer.




          “Lien” means any lien, mortgage, deed of trust, pledge, security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention agreement, any
lease in the nature thereof and any agreement to give any security interest).




          “Mortgage” has the meaning set forth in the Security Agreement.




          “Mortgaged Property” has the meaning set forth in the Security Agreement.




          “Net Cash Proceeds” means, with respect to any Asset Sale or Event of Loss, the
proceeds in the form of cash or Cash Equivalents including payments in respect of deferred payment
obligations when received in the form of cash or Cash Equivalents (other than the portion of any
such deferred payment constituting interest) and insurance proceeds and condemnation awards
received by the Company or any of its Restricted Subsidiaries from such Asset Sale or Event of Loss
net of:





     (1) reasonable out-of-pocket expenses and fees relating to such Asset Sale or Event of
Loss (including, without limitation, legal, accounting and investment banking fees and sales
commissions);




     (2) taxes paid or payable after taking into account any reduction in consolidated tax
liability due to available tax credits or deductions and any tax sharing arrangements;




     (3) repayment of Indebtedness (other than Indebtedness under the Credit Agreements and
the Notes) that is secured by the property or assets that are the subject of such Asset
Sale; and




     (4) appropriate amounts to be provided by the Company or any Restricted Subsidiary, as
the case may be, as a reserve, in accordance with GAAP, against any liabilities associated with such Asset Sale and retained by the Company or any Restricted
Subsidiary, as the case may be, after such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with such Asset
Sale.



          “Non-U.S. Person” means a Person who is not a U.S. Person.










 



-18-




          “Notes” has the meaning set forth in the preamble to this Indenture. The Initial
Notes and the Additional Notes shall be treated as a single class for all purposes under this
Indenture, and unless the context otherwise requires, all references to the Notes shall include the
Initial Notes and any Additional Notes.




          “Obligations” means all obligations for principal, premium, interest (including any
interest accruing subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such interest is an allowed claim under
applicable law), penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.




          “Offering Memorandum” means the Company’s offering memorandum dated March 13, 2009,
whereby the Company offered $349,903,000 aggregate principal amount of its Notes.




          “Officer” means the Chairman of the Board, the Chief Executive Officer, the Chief
Financial Officer, the President, any Vice President, the Treasurer or Secretary of the Company.




          “Officers’ Certificate” means a certificate signed by two Officers of the Company, at
least one of whom shall be the principal executive Officer or principal financial Officer of the
Company, and delivered to the Trustee.




          “Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable
to the Trustee that meets the requirements of Sections 14.4 and 14.5 hereof. The counsel may be an
employee of or counsel to the Company, any Subsidiary of the Company or the Trustee.




          “Pari Passu Debt” means any Indebtedness of the Company or any Guarantor that ranks
pari passu in right of payment with the Notes or such Guarantee, as applicable, including the
Existing Notes and the Existing Note Guarantees, respectively.




          “Pari Passu Junior Lien Obligations” means any Indebtedness of the Company or any
Guarantor (including Additional Notes) that is secured by a Lien on the Collateral ranking pari
passu with the Liens securing the Initial Notes and the related Guarantees.




          “Participant” means, with respect to the Depositary, a Person who has an account with
the Depositary.




          “Permitted Holders” means (i) David H. Murdock, his estate, spouse, heirs, ancestors,
lineal descendants, legatees, legal representatives (in their capacities as such) or the trustee
(in its capacity as such) of a bona fide trust of which one or more of the foregoing are the
principal beneficiaries or grantors thereof and (ii) any entity controlled, directly or indirectly,
by any











 



-19-



Persons referred to in the preceding clause (i), whether through the ownership of voting
securities, by contract or otherwise.




          “Permitted Indebtedness” means, without duplication, each of the following:





     (1) Indebtedness under the Initial Notes or any Exchange Notes (as defined in the
Registration Rights Agreement) issued in exchange therefor and the Guarantees;




     (2) Indebtedness incurred pursuant to the Credit Agreements in an aggregate principal
amount at any time outstanding not to exceed $1,340.0 million less the amount of all
repayments of terms loans and permanent commitment reductions in the revolving credit
portion of the ABL Credit Agreement actually made with Net Cash Proceeds of Asset Sales
applied thereto as required by Section 4.10;




     (3) other Indebtedness of the Company and its Restricted Subsidiaries outstanding on
the Issue Date (including the Existing Notes and the Existing Note Guarantees and any “put”
or similar rights of minority holders of Restricted Subsidiaries in existence as of the
Issue Date) reduced by the amount of any scheduled amortization payments or mandatory
prepayments when actually paid or permanent reductions thereon;




     (4) Interest Swap Obligations of the Company or any Restricted Subsidiary of the
Company covering Indebtedness of the Company or any of its Restricted Subsidiaries;
provided, however, that such Interest Swap Obligations are entered into to
protect the Company and its Restricted Subsidiaries from fluctuations in interest rates on
their outstanding Indebtedness to the extent the notional principal amount of such Interest
Swap Obligation does not, at the time of the initial incurrence thereof, exceed the
principal amount of the Indebtedness to which such Interest Swap Obligation relates;




     (5) (A) Indebtedness under Currency Agreements; provided that in the case of
Currency Agreements which relate to Indebtedness, such Currency Agreements do not increase
the Indebtedness of the Company and its Restricted Subsidiaries outstanding other than as a
result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities
and compensation payable thereunder and (B) Indebtedness under Commodities Agreements;




     (6) Indebtedness of a Restricted Subsidiary of the Company to the Company or to a
Wholly Owned Restricted Subsidiary of the Company for so long as such Indebtedness is held
by the Company or a Wholly Owned Restricted Subsidiary of the Company or the holder of a
Lien permitted under this Indenture, in each case subject to no Lien held by a Person other
than the Company or a Wholly Owned Restricted Subsidiary of the Company or the holder of a
Lien permitted under this Indenture; provided that if as of any date any Person
other than the Company or a Wholly Owned Restricted Subsidiary of the Company or the holder
of a Lien permitted under this Indenture owns or holds any such Indebtedness or holds a Lien
in respect of such Indebtedness, such date shall be









 



-20-



deemed the incurrence of Indebtedness
not constituting Permitted Indebtedness under this clause (6) by the issuer of such
Indebtedness;




     (7) (A) Indebtedness of the Company to a Wholly Owned Restricted Subsidiary of the
Company for so long as such Indebtedness is held by a Wholly Owned Restricted Subsidiary of
the Company or the holder of a Lien permitted under this Indenture, in each case subject to
no Lien other than a Lien permitted under this Indenture; provided that (a) any
Indebtedness of the Company to any Wholly Owned Restricted Subsidiary of the Company that is
not a Guarantor is unsecured and subordinated, pursuant to a written agreement, to the
Company’s obligations under this Indenture and the Notes and (b) if as of any date any
Person other than a Wholly Owned Restricted Subsidiary of the Company or the holder of a
Lien permitted under this Indenture owns or holds any such Indebtedness or holds a Lien in
respect of such Indebtedness, such date shall be deemed the incurrence of Indebtedness not
constituting Permitted Indebtedness under this clause (7) by the Company and (B)
Indebtedness of the Company or any of its Restricted Subsidiaries to any Restricted
Subsidiary of the Company that is not a Wholly Owned Restricted Subsidiary of the Company in
the ordinary course of business consistent with past practice;




     (8) 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;
provided, however, that such Indebtedness is extinguished within five
business days of incurrence;




     (9) Indebtedness of the Company or any of its Restricted Subsidiaries in respect of
performance bonds, bankers’ acceptances, workers’ compensation claims, surety or appeal
bonds, payment obligations in connection with self-insurance or similar obligations,
completion or performance guarantees or standby letters of credit issued for the purpose of
supporting such obligations and bank overdrafts (and letters of credit in respect thereof)
in the ordinary course of business;




     (10) Indebtedness represented by Capitalized Lease Obligations, mortgage financings and
Purchase Money Indebtedness of the Company and its Restricted Subsidiaries
incurred in the ordinary course of business not to exceed $50.0 million at any one
time outstanding;




     (11) Refinancing Indebtedness;




     (12) Indebtedness represented by guarantees by the Company or its Restricted
Subsidiaries of Indebtedness otherwise permitted to be incurred under this Indenture;




     (13) Indebtedness of the Company or any Restricted Subsidiary consisting of guarantees,
indemnities or obligations in respect of purchase price adjustments in connection with the
acquisition or disposition of assets or the Capital Stock of Subsidiaries;









 



-21-



     (14) guarantees furnished by the Company or its Restricted Subsidiaries in the ordinary
course of business of Indebtedness of another Person in an aggregate amount not to exceed
$25.0 million at any one time outstanding;




     (15) Indebtedness incurred under commercial letters of credit issued for the account of
the Company or any of its Restricted Subsidiaries in the ordinary course of business (and
not for the purpose of, directly or indirectly, incurring Indebtedness or providing credit
support or a similar arrangement in respect of Indebtedness), provided that any
drawing under any such letter of credit is reimbursed in full within seven days;




     (16) Indebtedness of the Company or any of its Restricted Subsidiaries relating to any
“earn-out” obligations payable in connection with any acquisition made by the Company or any
Restricted Subsidiary not prohibited by this Indenture;




     (17) Indebtedness of Foreign Restricted Subsidiaries in an aggregate principal amount
not to exceed $75.0 million at any one time outstanding;




     (18) Indebtedness of Foreign Restricted Subsidiaries (and any guarantee thereof by the
Company) incurred in connection with grower loan programs in an aggregate principal amount
not to exceed $75.0 million at any one time outstanding;




     (19) without duplication, Indebtedness of the Company or any of its Restricted
Subsidiaries under letters of credit and bank guarantees required by governmental laws,
orders and regulations which letters of credit will be backstopped by letters of credit
under the Term Credit Agreement;




     (20) [Reserved];




     (21) Indebtedness of the Company and its Restricted Subsidiaries representing
Obligations in existence on the Issue Date that become Indebtedness after the Issue Date as
a result of the implementation of FASB Interpretation No. 46, “Consolidation of Variable
Interest Entities”; and




     (22) additional Indebtedness of the Company and its Restricted Subsidiaries in an
aggregate principal amount not to exceed $50.0 million at any one time outstanding (which
amount may, but need not, be incurred in whole or in part under the Credit Agreements).



          For purposes of determining compliance with Section 4.9, in the event that an item of
Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness
described in clauses (1) through (22) above or is entitled to be incurred pursuant to the
Consolidated Fixed Charge Coverage Ratio provisions of Section 4.9 hereof, the Company shall, in
its sole discretion, classify (or from time to time may reclassify) such item of Indebtedness in
any manner that complies with this definition and such item of Indebtedness will be treated as












 



-22-



having been incurred pursuant to only one of such categories. Accrual of interest, accretion or
amortization of original issue discount, a change in the amount of Indebtedness due solely to
fluctuations in the exchange rates of currencies, the payment of interest on any Indebtedness in
the form of additional Indebtedness with the same terms, and the payment of dividends on
Disqualified Capital Stock in the form of additional shares of the same class of Disqualified
Capital Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified
Capital Stock for purposes of Section 4.9 hereof.




          “Permitted Investments” means:





     (1) Investments by the Company or any Restricted Subsidiary of the Company in any
Person that is or will become immediately after such Investment a Restricted Subsidiary of
the Company or that will merge or consolidate into the Company or a Restricted Subsidiary of
the Company;




     (2) Investments in the Company by any Restricted Subsidiary of the Company;
provided that any Indebtedness (other than Indebtedness to any Restricted Subsidiary
of the Company that is not a Wholly Owned Restricted Subsidiary of the Company in the
ordinary course of business consistent with past practice) evidencing such Investment and
held by a Restricted Subsidiary that is not a Guarantor is unsecured and subordinated,
pursuant to a written agreement, to the Company’s obligations under the Notes and this
Indenture;




     (3) Investments in cash and Cash Equivalents;




     (4) loans to employees, directors and officers of the Company and its Restricted
Subsidiaries in the ordinary course of business for bona fide business purposes not in
excess of $5.0 million at any one time outstanding;




     (5) Obligations under Currency Agreements, Interest Swap Obligations and Commodities
Agreements entered into in the ordinary course of the Company’s or its
Restricted Subsidiaries’ businesses and not for speculative purposes and otherwise in
compliance with this Indenture;




     (6) additional Investments not to exceed $20.0 million at any one time outstanding
which are made in the ordinary course in furtherance of the business of the Company and its
Restricted Subsidiaries;




     (7) Investments in securities of trade creditors, licensors, licensees or customers
received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy
or insolvency of such trade creditors or customers or in good faith settlement of delinquent
obligations of such trade creditors or customers;









 



-23-



     (8) Investments made by the Company or its Restricted Subsidiaries as a result of
consideration received in connection with an Asset Sale made in compliance with Section
4.10, whether or not such consideration is equal to or greater than $15.0 million;




     (9) Investments represented by guarantees that are otherwise permitted under this
Indenture;




     (10) Investments the payment for which is Qualified Capital Stock of the Company;




     (11) Investments resulting from the creation of Liens on the assets of the Company or
any of its Restricted Subsidiaries in compliance with Section 4.12;




     (12) Investments by the Company or any Restricted Subsidiary in connection with grower
loan programs in an amount not to exceed $75.0 million at any one time outstanding;




     (13) Investments arising as a result of the exercise of any “put” or similar rights of
minority holders of Restricted Subsidiaries or “call” or similar rights of the Company in
existence as of the Issue Date; and




     (14) advances to employees, directors and officers of the Company and its Restricted
Subsidiaries in the ordinary course of business for bona fide business purposes.



          “Permitted Liens” means the following types of Liens:





     (1) Liens existing as of the Issue Date to the extent and in the manner such Liens are
in effect on the Issue Date;




     (2) Liens securing Indebtedness and any other Obligations under (x) the Credit
Agreements to the extent such Indebtedness is permitted by clause (2) or clause (22) of the
definition of “Permitted Indebtedness,” (y) Interest Swap Obligations, Currency
Agreements and cash management obligations which are, pursuant to the terms of
the Credit Agreements, permitted to be secured on a pari passu basis with the Liens securing
Indebtedness under either Credit Agreement and (z) letters of credit permitted under clause
(9) or (15) of the definition of “Permitted Indebtedness”;




     (3) Liens securing Pari Passu Junior Lien Obligations in an aggregate principal amount
not to exceed the greater of (x) the excess of (A) $500,000,000 over (B) the principal
amount of then outstanding Initial Notes and (y) the amount that would not cause the Secured
Leverage Ratio as of the date of the incurrence and immediately after giving effect to the
incurrence thereof to exceed 3.75 to 1.0;




     (4) Liens securing the Initial Notes and the related Guarantees;









 



-24-



     (5) Liens of the Company or a Restricted Subsidiary of the Company on assets of any
Restricted Subsidiary of the Company;




     (6) Liens securing Refinancing Indebtedness which is incurred to Refinance any
Indebtedness which has been secured by a Lien permitted under this Indenture and which has
been incurred in accordance with the provisions of this Indenture; provided,
however, that such Liens: (i) are no less favorable to the Holders in any material
respect and are not more favorable to the lienholders in any material respect with respect
to such Liens than the Liens in respect of the Indebtedness being Refinanced; and (ii) do
not extend to or cover any property or assets of the Company or any of its Restricted
Subsidiaries not securing the Indebtedness so Refinanced;




     (7) Liens for taxes, assessments or governmental charges or claims either (a) not
delinquent or (b) contested in good faith by appropriate proceedings and as to which the
Company or its Restricted Subsidiaries shall have set aside on their books such reserves as
may be required pursuant to GAAP;




     (8) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen, maritime and other Liens imposed by law incurred in the
ordinary course of business for sums not yet delinquent or being contested in good faith, if
such reserve or other appropriate provision, if any, as shall be required by GAAP shall have
been made in respect thereof;




     (9) Liens incurred or deposits made in the ordinary course of business in connection
with workers’ compensation, unemployment insurance and other types of social security,
including any Lien securing letters of credit issued in the ordinary course of business
consistent with past practice in connection therewith, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations or to secure
or which results from required payments or deposits in connection with litigation
(in each case, exclusive of obligations for the payment of borrowed money);




     (10) judgment Liens (other than with respect to judgments that cause an Event of
Default under this Indenture) so long as such Lien is adequately bonded and any appropriate
legal proceedings which may have been duly initiated for the review of such judgment shall
not have been finally terminated or the period within which such proceedings may be
initiated shall not have expired;




     (11) easements, rights-of-way, zoning restrictions and other similar charges or
encumbrances in respect of real property not interfering in any material respect with the
ordinary conduct of the business of the Company or any of its Restricted Subsidiaries;




     (12) any interest or title of a lessor under any Capitalized Lease Obligation permitted
to be incurred under this Indenture; provided that such Liens do not extend to









 



-25-

any
property or assets which is not leased property subject to such Capitalized Lease
Obligation;





     (13) Liens securing Purchase Money Indebtedness incurred in the ordinary course of
business; provided, however, that (a) such Purchase Money Indebtedness shall
not exceed the purchase price or other cost of such property or equipment plus the amount of
reasonable fees and expenses incurred in connection with such financing and shall not be
secured by any property or equipment of the Company or any Restricted Subsidiary of the
Company other than the property and equipment so acquired and (b) the Lien securing such
Purchase Money Indebtedness shall be created within 120 days of such acquisition;




     (14) Liens upon specific items of inventory or other goods and proceeds of any Person
securing such Person’s obligations in respect of bankers’ acceptances issued or created for
the account of such Person to facilitate the purchase, shipment or storage of such inventory
or other goods;




     (15) Liens securing reimbursement obligations with respect to commercial letters of
credit which encumber documents and other property relating to such letters of credit and
products and proceeds thereof;




     (16) Liens encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual, or warranty requirements of the Company or any of its Restricted
Subsidiaries, including rights of offset and set-off;




     (17) Liens securing Interest Swap Obligations which Interest Swap Obligations relate to
Indebtedness that is otherwise permitted pursuant to clause (4) of the definition of
“Permitted Indebtedness”;




     (18) Liens securing Indebtedness under Currency Agreements and Commodities Agreements
permitted to be incurred pursuant to clause (5) of the definition of “Permitted
Indebtedness”;




     (19) Liens securing Acquired Indebtedness incurred in accordance with Section 4.9;
provided that:




     (a) such Liens secured such Acquired Indebtedness at the time of and prior to
the incurrence of such Acquired Indebtedness by the Company or a Restricted
Subsidiary of the Company and were not granted in connection with, or in
anticipation of, the incurrence of such Acquired Indebtedness by the Company or a
Restricted Subsidiary of the Company; and




     (b) such Liens do not extend to or cover any property or assets of the Company
or of any of its Restricted Subsidiaries other than the property or assets









 



-26-



that
secured the Acquired Indebtedness prior to the time such Indebtedness became
Acquired Indebtedness of the Company or a Restricted Subsidiary of the Company and
are no more favorable to the lienholders than those securing the Acquired
Indebtedness prior to the incurrence of such Acquired Indebtedness by the Company or
a Restricted Subsidiary of the Company;




     (20) Liens on assets of a Restricted Subsidiary of the Company that is not a Guarantor
to secure Indebtedness of such Restricted Subsidiary that is otherwise permitted under this
Indenture;




     (21) leases, subleases, licenses and sublicenses granted to others that do not
materially interfere with the ordinary course of business of the Company and its Restricted
Subsidiaries;




     (22) banker’s Liens, rights of setoff and similar Liens with respect to cash and Cash
Equivalents on deposit in one or more bank accounts in the ordinary course of business;




     (23) Liens arising from filing Uniform Commercial Code financing statements regarding
leases; and




     (24) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payments of custom duties in connection with the importation of goods.



          “Person” means an individual, partnership, corporation, limited liability company,
unincorporated organization, trust or joint venture, or any entity similar to any of the foregoing
organized under the laws of other countries, or a governmental agency or political subdivision
thereof.




          “Pledge Agreement” means the pledge agreement to be dated as of the Issue Date between
the Collateral Agent, the Company and each Pledgor (as defined therein), as amended, modified,
restated, supplemented or replaced from time to time.




          “Preferred Stock” of any Person means any Capital Stock of such Person that has
preferential rights to any other Capital Stock of such Person with respect to dividends or
redemptions or upon liquidation.




          “Private Placement Legend” means the legend set forth in Section 2.6(g)(1) hereof to
be placed on all Notes issued under this Indenture except where otherwise permitted by the
provisions of this Indenture.




          “Purchase Date” means, with respect to any Note to be repurchased, the date fixed for
such repurchase by or pursuant to this Indenture.















 





-27-




          “Purchase Money Indebtedness” means Indebtedness of the Company and its Restricted
Subsidiaries incurred in the normal course of business for the purpose of financing all or any part
of the purchase price, or the cost of installation, construction or improvement, of property or
equipment.




          “Purchase Price” means the amount payable for the repurchase of any Note on a Purchase
Date, exclusive of accrued and unpaid interest and Additional Interest (if any) thereon to the
Purchase Date, unless otherwise specifically provided.




          “QIB” means a qualified institutional buyer as defined in Rule 144A under the
Securities Act.




          “Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital
Stock.




          “Redemption Date” means, with respect to any Note to be redeemed, the date fixed for
such redemption by or pursuant to this Indenture.




          “Redemption Price” means the amount payable for the redemption of any Note on a
Redemption Date, exclusive of’ accrued and unpaid interest and Additional Interest (if any) thereon
to the Redemption Date, unless otherwise specifically provided.




          “Refinance” means, in respect of any security or Indebtedness, to refinance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue a security or Indebtedness in
exchange or replacement for, such security or Indebtedness in whole or in part.
“Refinanced” and “Refinancing” shall have correlative meanings.




          “Refinancing Indebtedness” means any Refinancing by the Company or any Restricted
Subsidiary of the Company of Indebtedness incurred in accordance with Section 4.9 (other than
pursuant to clauses (2), (4), (5), (6), (7), (8), (9), (10), (12), (13) through (20) and (22) of
the definition of “Permitted Indebtedness”), in each case that does not:





     (1) result in an increase in the aggregate principal amount of Indebtedness of such
Person as of the date of such proposed Refinancing above the sum of (i) the aggregate
principal amount of such Indebtedness, plus (ii) the accrued interest on and the amount of
any premium required to be paid under the terms of the instrument governing such
Indebtedness, plus (iii) the amount of reasonable expenses incurred by the Company in
connection with such Refinancing; or




     (2) create Indebtedness with: (a) a Weighted Average Life to Maturity that is less than
the Weighted Average Life to Maturity of the Indebtedness being Refinanced; or (b) a final
maturity earlier than the final maturity of the Indebtedness being Refinanced;









 



-28-

provided that (x) if such Indebtedness being Refinanced is Indebtedness solely of the
Company (and is not otherwise guaranteed by a Restricted Subsidiary of the Company), then such
Refinancing Indebtedness shall be Indebtedness solely of the Company and (y) if such Indebtedness
being Refinanced is subordinate or junior to the Notes or the Guarantees, then such Refinancing
Indebtedness shall be subordinate to the Notes or the Guarantees, as the case may be, at least to
the same extent and in the same manner as the Indebtedness being Refinanced.




          “Registration Rights Agreement” means the registration rights agreement dated as of
the Issue Date among the Company, the Guarantors and the Initial Purchasers.




          “Regulation S” means Regulation S as promulgated under the Securities Act.




          “Regulation S Global Note” means a Global Note substantially in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on
behalf of and registered in the name of the Depositary or its nominee.




          “Representative” means the indenture trustee or other trustee, agent or representative
in respect of any Guarantor Senior Debt; provided that if, and for so long as, any
Guarantor Senior Debt lacks such a representative, then the Representative for such Guarantor
Senior Debt shall at all times constitute the holders of a majority in outstanding principal amount
of such Guarantor Senior Debt.




          “Responsible Officer” shall mean, when used with respect to the Trustee, any officer
within the corporate trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs functions similar to those performed by the Persons who at the
time shall be such officers, respectively, or to whom any corporate trust matter is referred
because of such person’s knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.




          “Restricted Definitive Note” means a Definitive Note that is a Restricted Note.




          “Restricted Global Note” means a Global Note that is a Restricted Note.




          “Restricted Note” has the meaning set forth in Rule 144(a)(3) under the Securities Act
for the term “restricted securities”; provided, however, that the Trustee shall be
entitled to request and conclusively rely upon an Opinion of Counsel with respect to whether any
Note is a Restricted Note. Restricted Notes are required to bear the Private Placement Legend.




          “Restricted Period” means the 40-day distribution compliance period as defined in
Regulation S.




          “Restricted Subsidiary” of any Person means any Subsidiary of such Person which at the
time of determination is not an Unrestricted Subsidiary.










 



-29-




          “Rule 144” means Rule 144 promulgated under the Securities Act.




          “Rule 144A” means Rule 144A promulgated under the Securities Act.




          “Rule 405” means Rule 405 promulgated under the Securities Act.




          “Rule 903” means Rule 903 promulgated under the Securities Act.




          “Rule 904” means Rule 904 promulgated under the Securities Act.




          “Sale and Leaseback Transaction” means any direct or indirect arrangement with any
Person or to which any such Person is a party, providing for the leasing to the Company or a
Restricted Subsidiary of any property, whether owned by the Company or any Restricted Subsidiary at
the Issue Date or later acquired, which has been or is to be sold or transferred by the Company or
such Restricted Subsidiary to such Person or to any other Person from whom funds have been or are
to be advanced by such Person on the security of such property.




          “Secured Indebtedness” means, on any date, the principal amount of Indebtedness of the
Company and its Restricted Subsidiaries secured by a Lien on any assets of the Company or any
Restricted Subsidiary on such date that would be required to be reflected as liabilities of the
Company on a consolidated balance sheet (excluding the notes thereto) of the Company prepared on
such date in accordance with GAAP.




          “Secured Leverage Ratio” means, on any date, the ratio of (x) Secured Indebtedness on
such date to (y) Consolidated EBITDA of the Company during the four full fiscal quarters (the
“Four Quarter Period”) ending prior to the date of the transaction giving rise to the need
to calculate the Secured Leverage Ratio for which financial statements are available (the
“Transaction Date”). For purposes of this definition, “Consolidated EBITDA” and “Secured
Indebtedness” shall be calculated after giving effect on a pro forma basis for the period of such
calculation to:





     (1) the incurrence or repayment of any Indebtedness of such Person or any of its
Restricted Subsidiaries (and the application of the proceeds thereof) giving rise to the
need to make such calculation and any incurrence or repayment of other Indebtedness (and the
application of the proceeds thereof); and




     (2) any Asset Sales or other disposition or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such calculation as a
result of such Person or one of its Restricted Subsidiaries (including any Person who
becomes a Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming or
otherwise being liable for Acquired Indebtedness and also including any Consolidated EBITDA
attributable to the assets which are the subject of the Asset Acquisition or Asset Sale or
other disposition during the Four Quarter Period) occurring during the Four Quarter Period
or at any time subsequent to the last day of the Four Quarter Period and on or









 



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prior to the Transaction Date, as if such Asset Sale or other disposition or Asset
Acquisition (including the incurrence, assumption or liability for any such Acquired
Indebtedness) occurred on the first day of the Four Quarter Period.



          For purposes of this definition, whenever pro forma effect is to be given to an Asset
Acquisition and the amount of income or earnings relating thereto, the pro forma calculations shall
be determined in good faith by a responsible financial or accounting Officer of the Company and
shall comply with the requirements of Rule 11-02 of Regulation S-X promulgated by the Commission,
except that such pro forma calculations may include operating expense reductions for such period
resulting from the acquisition which is being given pro forma effect that have been realized or for
which the steps necessary for realization have been taken or are reasonably expected to be taken
within six months following any such Asset Acquisition, including, but not limited to, the
execution or termination of any contracts, the termination of any personnel or the closing (or
approval by the Board of Directors of the Company of any closing) of any facility, as applicable,
provided that, in either case, such adjustments are set forth in an Officers’ Certificate
signed by the Company’s chief financial officer and another Officer which states (i) the amount of
such adjustment or adjustments, (ii) that such adjustment or adjustments are based on the
reasonable good faith beliefs of the Officers executing such Officers’ Certificate at the time of
such execution and (iii) that any related incurrence of Indebtedness is permitted pursuant to this
Indenture.




          “Securities Act” means the Securities Act of 1933, as amended, or any successor
statute or statutes thereto.




          “Security Agreement” means the security agreement dated as of the Issue Date among the
Collateral Agent, the Company and the Grantors (as defined therein).




          “Security Documents” means the Security Agreement, the Pledge Agreement, the
Intercreditor Agreement and each other document entered into to grant a security interest in the
Collateral to the Collateral Agent for the benefit of the Holders of Notes.




          “Shelf Registration Statement” has the meaning set forth in the Registration Rights
Agreement.




          “Significant Subsidiary,” with respect to any Person, means any Restricted Subsidiary
of such Person that satisfies the criteria for a “significant subsidiary” set forth in Rule 1.02(w)
of Regulation S-X under the Exchange Act.




          “Subordinated Indebtedness” means Indebtedness of the Company or any Guarantor that is
subordinate or junior in right of payment to the Notes or the Guarantee of such Guarantor, as the
case may be.










 



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     “Subsidiary,” with respect to any Person, means:




     (1) any corporation, association or other business entity of which the outstanding
Capital Stock having at least a majority of the votes entitled to be cast in the election of
directors, managers or trustees of such corporation, association or other business entity
under ordinary circumstances shall at the time be owned, directly or indirectly, by such
Person and its Subsidiaries; or




     (2) any partnership (a) the sole general partner or the managing partner of which is
such Person or a Subsidiary of such Person or (b) the only general partners of which are
such Person and its Subsidiaries.



          “Term Collateral Agent” has the meaning set forth in the Intercreditor Agreement.




          “Term Credit Agreement” means the Credit Agreement, dated as of April 12, 2006, by and
among Holdings, Dole Holding Company, LLC, the Company, Solvest, Ltd., the financial institutions
party thereto in their capacities as lenders thereunder, 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, together with the
related documents thereto (including, without limitation, any guarantee agreements and security
documents), in each case as such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any agreement extending
the maturity of, refinancing, replacing or otherwise restructuring (including, without limitation,
increasing the amount of available borrowings thereunder or adding Restricted Subsidiaries of the
Company as additional borrowers or guarantors thereunder) all or any portion of the Indebtedness
under such agreement or any successor or replacement agreement or agreements and whether by the
same or any other agent, lender or group of lenders.




          “TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect
on the date on which this Indenture is qualified under the TIA; provided that in the event
the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.




          “Term Security Documents” has the meaning set forth in the Intercreditor Agreement.




          “TL Priority Collateral” has the meaning set forth in the Intercreditor Agreement.




          “Third Priority” has the meaning set forth in the Intercreditor Agreement.




          “Trustee” means the party named as such above until a successor replaces it in
accordance with the applicable provisions of this Indenture, and thereafter means the successor
serving hereunder.










 



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          “Unrestricted Definitive Note” means a Definitive Note that is an Unrestricted Note.




          “Unrestricted Global Note” means a Global Note that is an Unrestricted Note.




          “Unrestricted Notes” means one or more Notes that do not and are not required to bear
the Private Placement Legend including, without limitation, the Exchange Notes, any Notes sold in
connection with an effective Shelf Registration Statement pursuant to the Registration Rights
Agreement, any Notes from which the Private Placement Legend has been removed in accordance with
Section 2.7(g) and, with respect to Unrestricted Global Notes, Notes in which a Holder acquires an
interest pursuant to Section 2.7(j).




          “Unrestricted Subsidiary” of any Person means:





     (1) any Subsidiary of such Person that at the time of determination shall be or
continue to be designated an Unrestricted Subsidiary by the Board of Directors of such
Person in the manner provided below; and




     (2) any Subsidiary of an Unrestricted Subsidiary.




          The Board of Directors may designate any Subsidiary (including any newly acquired or newly
formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock
of, or owns or holds any Lien on any property of, the Company or any other Subsidiary of the
Company that is not a Subsidiary of the Subsidiary to be so designated; provided that:




     (1) the Company certifies to the Trustee that such designation complies with Section
4.7 hereof; and




     (2) each Subsidiary to be so designated and each of its Subsidiaries has not at the
time of designation, and does not thereafter, create, incur, issue, assume, guarantee or
otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to
which the lender has recourse to any of the assets of the Company or any of its Restricted
Subsidiaries.



          For purposes of making the determination of whether any such designation of a Subsidiary as an
Unrestricted Subsidiary complies with Section 4.7, the portion of the fair market value of the net
assets of such Subsidiary of the Company at the time that such Subsidiary is designated as an
Unrestricted Subsidiary that is represented by the interest of the Company and its Restricted
Subsidiaries in such Subsidiary, in each case as determined in good faith by the Board of Directors
of the Company, shall be deemed to be an Investment. Such designation will be permitted only if
such Investment would be permitted at such time under Section 4.7 hereof.










 



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          The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary
only if:





     (1) immediately after giving effect to such designation, the Company is able to incur
at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance
with Section 4.9(a) hereof; and




     (2) immediately before and immediately after giving effect to such designation, no
Default or Event of Default shall have occurred and be continuing.


Any such designation by the Board of Directors shall be evidenced to the Trustee by promptly filing
with the Trustee a copy of the Board Resolution giving effect to such designation and an Officers’
Certificate certifying that such designation complied with the foregoing provisions.




          “U.S. Government Obligations” shall mean securities which are (i) direct obligations
of the United States of America for the payment of which its full faith and credit is pledged or
(ii) obligations of a person controlled or supervised by and acting as an agency or instrumentality
of the United States of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such U.S. Government Obligations or a
specific payment of interest on or principal of any such U.S. Government Obligations held by such
custodian for the account of the holder of a depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligations or the specific payment of interest on or principal of the U.S.
Government Obligations evidenced by such depository receipt.




          “U.S. Person” means any U.S. person as defined in Regulation S.




          “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing (a) the then outstanding aggregate principal amount
of such Indebtedness into (b) the sum of the total of the products obtained by multiplying (i) the
amount of each then remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii) the number of years
(calculated to the nearest one-twelfth) which will elapse between such date and the making of such
payment.




          “Wholly Owned Restricted Subsidiary” of any Person means any Wholly Owned Subsidiary
of such Person which at the time of determination is a Restricted Subsidiary of such Person.




          “Wholly Owned Subsidiary” of any Person means any Subsidiary of such Person of which
all the outstanding voting securities (other than in the case of a foreign Subsidiary, di-









 



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rectors’
qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant
to applicable law) are owned by such Person or any Wholly Owned Subsidiary of such Person.




Section 1.2. Other Definitions.




	 	 	 
	Term	 	Defined in Section
	 
	 	 
	“Acceleration Notice”
	 	6.2
	“Act”
	 	1.5
	“Affiliate Transaction”
	 	4.11
	“Authentication Order”
	 	2.2
	“Change of Control Offer”
	 	4.15
	“Change of Control Offer Period”
	 	3.9
	“Covenant Defeasance”
	 	8.3
	“DTC”
	 	2.3
	“Event of Default”
	 	6.1
	“Event of Loss Offer”
	 	4.24
	“Event of Loss Offer Amount”
	 	4.24
	“Event of Loss Offer Payment Date”
	 	4.24
	“Event of Loss Offer Trigger Date”
	 	4.24
	“incur”
	 	4.9
	“Legal Defeasance”
	 	8.2
	“Net Proceeds Offer”
	 	4.10
	“Net Proceeds Offer Amount”
	 	4.10
	“Net Proceeds Offer Payment Date
	 	4.10
	“Net Proceeds Offer Trigger Date”
	 	4.10
	“Non-payment Default
	 	10.2
	“Optional Redemption”
	 	3.7
	“Paying Agent”
	 	2.3
	“Payment Blockage Notice
	 	10.2
	“Payment Blockage Period
	 	10.2
	“Payment Default”
	 	10.2
	“Registrar”
	 	2.3
	“Reinvestment Assets”
	 	4.24
	“Restricted Payment”
	 	4.7
	“Special Redemption”
	 	3.8
	“Surviving Entity”
	 	5.1






Section 1.3. Incorporation by Reference of Trust Indenture Act.




          Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture.










 



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          The following TIA terms used in this Indenture have the following meanings:




          “indenture securities” means the Notes;




          “indenture security holder” means a Holder;




          “indenture to be qualified” means this Indenture;




          “indenture trustee” or “institutional trustee” means the Trustee;




          “obligor” on the Notes means the Company and any successor obligor upon the Notes.




          All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by Commission rule under the TIA have the meanings so assigned to
them.




Section 1.4. Rules of Construction.




          Unless the context otherwise requires:




          (a) a term has the meaning assigned to it;




          (b) an accounting term not otherwise defined has the meaning assigned to it in accordance
with GAAP;




          (c) “or” is not exclusive;




          (d) words in the singular include the plural, and in the plural include the singular;




          (e) provisions apply to successive events and transactions; and




          (f) references to sections of or rules under the Securities Act, the Exchange Act and the
TIA shall be deemed to include substitute, replacement and successor sections or rules adopted by
the Commission from time to time.




Section 1.5. Acts of Holders.




          (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders in person or by an
agent duly appointed in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such in-










 



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strument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to as the
“Act” of Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 7.1) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section.




          (b) The fact and date of the execution by any Person of any such instrument or writing may
be proved by the affidavit of a witness of such execution or by the certificate of any notary
public or other officer authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him or her the execution thereof.
Where such execution is by an officer of a corporation or a member of a partnership, on behalf of
such corporation or partnership, such certificate or affidavit shall also constitute sufficient
proof of his or her authority.




          (c) The ownership of Notes shall be proved by the register maintained by the Registrar.




          (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of
the Holder of any Note shall bind every future Holder of the same Note and the Holder of every
Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Note.




ARTICLE II.




THE NOTES




Section 2.1. Form and Dating.




          (a) General. The Notes and the Trustee’s certificate of authentication relating
thereto shall be substantially in the form of Exhibit A hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage in addition to those set
forth in Exhibit A hereto. Each Note shall be dated the date of its authentication. The Notes
shall be in denominations of $1,000 and integral multiples thereof.




          The terms and provisions contained in the Notes and Guarantees shall constitute, and are
hereby expressly made, a part of this Indenture and the Company, the Guarantors and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby. However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.




          (b) Global Notes. Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent Restricted Global Notes.
Notes in global











 



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form
will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon
and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes
initially issued to or transferred to affiliates (as defined in Rule 144) of the Company shall
only be issued in definitive form and shall be substantially in the form of Exhibit A hereto (but
without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the
Global Note” attached thereto). Each Global Note will represent such of the outstanding Notes as
will be specified therein and each shall provide that it represents the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal
amount of outstanding Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby will be made by the Trustee or the Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.6
hereof. Unless and until exchanged for an Exchange Note or sold in connection with an effective
Shelf Registration Statement pursuant to the Registration Rights Agreement, affiliates of the
Company may only hold an interest in Notes in the form of Definitive Notes and are prohibited
from taking a beneficial interest in one or more Global Notes.




Section 2.2. Execution and Authentication.




          One Officer of the Company shall sign the Notes for the Company by manual or facsimile
signature.




          If an Officer whose signature is on a Note was an Officer at the time of such execution but no
longer holds that office or position at the time a Note is authenticated, the Note shall
nevertheless be valid. Each Guarantor shall execute a Guarantee in the manner set forth in Section
11.7.




          A Note shall not be valid until authenticated by the manual signature of the Trustee. The
signature shall be conclusive evidence that the Note has been authenticated under this Indenture.




          The Trustee, upon a written order of the Company signed by two Officers of the Company (an
“Authentication Order”), together with the other documents required by Sections 14.4 and
14.5 hereof, shall authenticate Notes for original issue that may be validly issued under this
Indenture, including any Additional Notes. The Authentication Order shall set forth the number of
separate Notes certificates, the principal amount of each of the Notes to be authenticated, the
date on which the Notes are to be authenticated, the registered Holder of each of the Notes and
instructions as to where such Notes shall be delivered. The aggregate principal amount of Notes
outstanding at any time may not exceed the aggregate principal amount of Notes authorized for
issuance by the Company pursuant to one or more Authentication Orders, except as provided in
Section 2.7 hereof. Any Additional Notes shall be part of the same issue as the Notes being issued
on the Issue Date and will vote on all matters as one class with the Notes










 



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being issued on the
Issue Date, including, without limitation, waivers, amendments, redemptions, Change of Control
Offers, Net Proceeds Offers and Event of Loss Offers. For the purposes of this Indenture, except
for Section 4.9 hereof, references to the Notes include Additional Notes, if any.




          The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. Unless otherwise provided in the appointment, an authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company or with any Affiliate of the Company.




Section 2.3. Registrar and Paying Agent.




          The Company shall maintain an office or agency where Notes may be presented or surrendered for
registration of transfer or for exchange (“Registrar”) and an office or agency where Notes
may be presented for payment (“Paying Agent”). The Registrar shall keep a register of the
Notes and of their transfer and exchange. At the option of the Company, payment of interest and
Additional Interest may be made by check mailed to the Holders at their addresses set forth in the
register of Holders; provided that payment by wire transfer of immediately available funds
will be required with respect to principal, Redemption Price and Purchase Price of, and interest
and Additional Interest (if any) on, all Global Notes and all other Notes the Holders of which
shall have provided wire transfer instructions to the Trustee or the Paying Agent. The Company may
appoint one or more co-registrars and one or more additional paying agents. The term “Registrar”
includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The
Company may change any Paying Agent or Registrar without notice to any Holder. The Company shall
notify the Trustee in writing of the name and address of any Paying Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Company may act as Paying Agent or Registrar. The
Depositary shall, by acceptance of a Global Note, agree that transfers of beneficial interests in
such Global Note may be effected only through a book-entry system maintained by the Depositary (or
its agent), and that ownership of a beneficial interest in the Note shall be required to be
reflected in a book entry.




          The Company initially appoints The Depository Trust Company (“DTC”) to act as
Depositary with respect to the Global Notes.




          The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act
as Custodian with respect to the Global Notes, until such time as the Trustee has resigned or a
successor has been appointed.




Section 2.4. Paying Agents To Hold Money in Trust.




          The Company shall require each Paying Agent other than the Trustee to agree in writing that
such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all










 



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money held by
the Paying Agent for the payment of principal and of any premium, if any, interest and Additional
Interest, if any, on the Notes, and shall notify the Trustee in writing of any default by the
Company in making any such payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and account for any money disbursed. Upon
payment over to the Trustee, the Paying Agent (if other than the Company) shall have no further
liability for the money. If the Company acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying
Agent for the Notes.




Section 2.5. Holder Lists.




          The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with TIA
§ 312(a). If the Trustee is not the Registrar, the Company shall furnish or cause the Registrar to
furnish to the Trustee at least five Business Days before each interest payment date and at such
other times as the Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of Notes and the Company
shall otherwise comply with TIA § 312(a).




Section 2.6. Transfer and Exchange.




          (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred
except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the
Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor Depositary. All Global
Notes will be exchanged by the Company for Definitive Notes if:





     (1) the Company delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing agency
registered under the Exchange Act and, in either case, a successor Depositary is
not appointed by the Company within 90 days after the date of such notice from the
Depositary; or




     (2) any Holder so requests.



          Upon the occurrence of either of the preceding events in (1) or (2) above, Definitive Notes
shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may
be exchanged or replaced, in whole or in part, as provided in Sections 2.7 and 2.10 hereof.




          (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer
and exchange of beneficial interests in the Global Notes will be effected through the










 



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Depositary,
in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes will be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also will require compliance with either subparagraph (1) or (2)
below, as applicable, as well as one or more of the other following subparagraphs, as applicable:





     (1) Transfer of Beneficial Interests in the Same Global Note. Beneficial
interests in any Restricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Restricted Global Note in
accordance with the transfer restrictions set forth in the Private Placement Legend;
provided, however, that prior to the expiration of the Restricted Period,
transfers of beneficial interests in the Regulation S Global Note may not be made to a U.S.
Person or for the account or benefit of a U.S. Person (other than the Initial Purchasers).
Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No
written orders or instructions shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.6(b)(1).




     (2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes.
In connection with all transfers and exchanges of beneficial interests that are not subject
to Section 2.6(b)(1) above, the transferor of such beneficial interest must deliver to the
Registrar either:




     (A) both:




     (i) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged; and




     (ii) instructions from the Depositary given in accordance with the
Applicable Procedures containing information regarding the Participant
account to be credited with such increase; or




     (B) both:




     (i) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged; and









 



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     (ii) instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (1) above.




     Upon consummation of an Exchange Offer by the Company in accordance with Section 2.6(f)
hereof, the requirements of this Section 2.6(b)(2) shall be deemed to have been satisfied
upon receipt by the Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or exchange of beneficial interests in
Global Notes contained in this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.6(h) hereof.




     (3) Transfer of Beneficial Interests to Another Restricted Global Note. A
beneficial interest in any Restricted Global Note may be transferred to a Person who takes
delivery thereof in the form of a beneficial interest in another Restricted Global Note if
the transfer complies with the requirements of Section 2.6(b)(2) above and the Registrar
receives the following:




     (A) if the transferee will take delivery in the form of a beneficial interest
in the 144A Global Note, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (1) thereof; and




     (B) if the transferee will take delivery in the form of a beneficial interest
in the Regulation S Global Note, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in item (2) thereof.




     (4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.6(b)(2) above and:




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it is not
(i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;









 



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     (B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;




     (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or




     (D) the Registrar receives the following:




     (i) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial interest
in an Unrestricted Global Note, a certificate from such holder in the form
of Exhibit C hereto, including the certifications in item (1)(a) thereof; or




     (ii) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;




and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in a form
reasonably acceptable to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.




     If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time
when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.2 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate principal
amount equal to the aggregate principal amount of beneficial interests transferred
pursuant to subparagraph (B) or (D) above.




     Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or
transferred to Persons who take delivery thereof in the form of, a beneficial interest in a
Restricted Global Note.



          (c) Transfer or Exchange of Beneficial Interests for Definitive Notes.




          (1) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes.
If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a










 



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Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt
by the Registrar of written instructions from the Depositary, including registration instructions
and the following documentation:





     (A) if the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note, a certificate from such
holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;




     (B) if such beneficial interest is being transferred to a QIB in accordance with Rule
144A, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;




     (C) if such beneficial interest is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item (2) thereof;




     (D) if such beneficial interest is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144, a certificate
to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a)
thereof;




     (E) if such beneficial interest is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or




     (F) if such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(c) thereof,


the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.6(h) hereof, and the Company shall execute and the
Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive
Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.6(c) shall be registered in such
name or names and in such authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the Depositary and the Participant
or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.6(c)(1) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer contained therein.




          (2) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes.
A holder of a beneficial interest in a Restricted Global Note may exchange such benefi-










 



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cial interest
for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note only if:





     (A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;




     (B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;




     (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or




     (D) the Registrar receives the following:




     (i) if the holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or




     (ii) if the holder of such beneficial interest in a Restricted Global Note
proposes to transfer such beneficial interest to a Person who shall take delivery
thereof in the form of an Unrestricted Definitive Note, a certificate from such
holder in the form of Exhibit B hereto, including the certifications in item (4)
thereof;




and, in each such case set forth in this subparagraph (D), if the Registrar so requests or
if the Applicable Procedures so require, an Opinion of Counsel in a form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with the Securities
Act.



          (3) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive
Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to
exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to
a Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of
the conditions set forth in Section 2.6(b)(2) hereof, the Trustee will cause the aggregate
principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.6(h)
hereof, and the Company will execute and the Trustee will authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate principal amount. Any
Defini-









 



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tive Note issued in exchange for a beneficial interest pursuant to this Section 2.6(c)(3)
will be registered in such name or names and in such authorized denomination or denominations as
the holder of such beneficial interest requests through instructions to the Registrar from or
through the Depositary and the Participant or Indirect Participant. The Trustee will deliver such
Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note
issued in exchange for a beneficial interest pursuant to this Section 2.6(c)(3) will not bear the
Private Placement Legend.




          (d) Transfer and Exchange of Definitive Notes for Beneficial Interests.




          (1) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes.
If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then,
upon receipt by the Registrar of the following documentation:





     (A) if the Holder of such Restricted Definitive Note proposes to exchange such Note for
a beneficial interest in a Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item (2)(b) thereof;




     (B) if such Restricted Definitive Note is being transferred to a QIB in accordance with
Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;




     (C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item (2) thereof;




     (D) if such Restricted Definitive Note is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;




     (E) if such Restricted Definitive Note is being transferred to the Company or any of
its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or




     (F) if such Restricted Definitive Note is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(c) thereof,




the Trustee will, upon surrender of the Restricted Definitive Note, cancel the Restricted
Definitive Note, increase or cause to be increased the aggregate principal amount of, in the
case of clause (A) above, the appropriate Restricted Global Note, in the case of clause









 



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(B) above, the 144A Global Note, and in the case of clause (C) above, the Regulation S Global
Note.



          (2) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes.
A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note only if:





     (A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of the
Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the
Company;




     (B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;




     (C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or




     (D) the Registrar receives the following:




     (i) if the Holder of such Definitive Notes proposes to exchange such Notes for
a beneficial interest in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in item (1)(c)
thereof; or




     (ii) if the Holder of such Definitive Notes proposes to transfer such Notes to
a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form
of Exhibit B hereto, including the certifications in item (4) thereof;




and, in each such case set forth in this subparagraph (D), if the Registrar so requests or
if the Applicable Procedures so require, an Opinion of Counsel in a form reasonably
acceptable to the Registrar to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain compliance with the
Securities Act.



          Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.6(d)(2) and
surrender of the Definitive Notes to the Trustee, the Trustee will cancel the Definitive Notes and
increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.










 



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          (3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global
Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time.
Upon receipt of a request for such an exchange or transfer and surrender of such Unrestricted
Definitive Note, the Trustee will cancel the applicable Unrestricted Definitive Note and increase
or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.




          If any such exchange or transfer from a Definitive Note to a beneficial interest is effected
pursuant to subparagraphs (2)(B), (2)(D) or (3) above at a time when an Unrestricted Global Note
has not yet been issued, the Company will issue and, upon receipt of an Authentication Order in
accordance with Section 2.2 hereof, the Trustee will authenticate one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so
transferred.




          (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by
a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section
2.6(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder must present or surrender to the
Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer
in a form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly
authorized in writing. In addition, the requesting Holder must provide any additional
certifications, documents and information, as applicable, required pursuant to the following
provisions of this Section 2.6(e).





     (1) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted
Definitive Note may be transferred to and registered in the name of Persons who take delivery
thereof in the form of a Restricted Definitive Note if the Registrar receives
the following:




     (A) if the transfer will be made pursuant to Rule 144A, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;




     (B) if the transfer will be made pursuant to Rule 903 or Rule 904, then the
transferor must deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and




     (C) if the transfer will be made pursuant to any other exemption from the
registration requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if applicable.









 



-48-



     (2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any
Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted
Definitive Note or transferred to a Person or Persons who take delivery thereof in the form
of an Unrestricted Definitive Note if:




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;



     (B) any such transfer is effected pursuant to the Shelf Registration Statement
in accordance with the Registration Rights Agreement;



     (C) any such transfer is effected by a Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the Registration Rights Agreement;
or



     (D) the Registrar receives the following:




     (i) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto, including the certifications in
item (1)(d) thereof; or




     (ii) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, a certificate from such Holder
in the form of Exhibit B hereto, including the certifications in item (4)
thereof;




and, in each such case set forth in this subparagraph (D), if the Registrar so
requests, an Opinion of Counsel in a form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the Securities
Act.




     (3) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder
of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to
register such a transfer, the Registrar shall register the Unrestricted Definitive Notes
pursuant to the instructions from the Holder thereof.









 



-49-


          (f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with
the Registration Rights Agreement, the Company will issue and, upon receipt of an Authentication
Order in accordance with Section 2.2 hereof, the Trustee will authenticate:





     (1) one or more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Notes accepted for
exchange in the Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not Broker-Dealers, (B) they are not participating in a
distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144)
of the Company; and




     (2) Unrestricted Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange in the Exchange
Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not
Broker-Dealers, (B) they are not participating in a distribution of the Exchange Notes and
(C) they are not affiliates (as defined in Rule 144) of the Company.



          Concurrently with the issuance of such Notes, the Trustee will cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and the Company will
execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of
Definitive Notes so accepted Unrestricted Definitive Notes not bearing the Private Placement Legend
in the appropriate principal amount.




          (g) Legends. The following legends will appear on the face of all Global Notes and
Definitive Notes issued under this Indenture unless specifically stated otherwise in the
applicable provisions of this Indenture.




          (1) Private Placement Legend.





     (A) Unless and until (x) a Note is exchanged for an Exchange Note or sold in connection
with an effective Shelf Registration Statement pursuant to the Registration Rights
Agreement, (y) with respect to a Restricted Global Note, all of the beneficial interests in
such Restricted Global Note have been exchanged for beneficial interests in the Unrestricted
Global Note in accordance with Section 2.6(j) or the Private Placement Legend has been
removed from such Restricted Global Note in accordance with Section 2.6(b)(4), 2.6(c)(2),
2.6(d)(2) or 2.6(e)(2), or (z) the Company determines and there is delivered to the Trustee
an Opinion of Counsel reasonably satisfactory to the Trustee and a letter of representation
of the Company reasonably satisfactory to the Trustee to the effect that the following
legend and the related restrictions on transfer are not required in order to maintain
compliance with the provisions of the Securities Act, each Global Note and each Definitive
Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the
legend in substantially the following form:









 



-50-



“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”) AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE HOLDER:




     (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER”
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A “QIB”) OR (B)
IT IS NOT A U.S. PERSON, IS NOT ACQUIRING THIS SECURITY FOR THE
ACCOUNT OR BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT,




     (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) TO
A PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES
ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND,
IN EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS,
AND




     (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY OR AN INTEREST HEREIN IS TRANSFERRED (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE (2)(D) OR 2(E) ABOVE) A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND.




     IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY OR ANY INTEREST HEREIN
WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE
APPRO-









 



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PRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN,
THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE
MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES
ACT.”




     (B) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant
to subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this
Section 2.6 (and all Notes issued in exchange therefor or substitution thereof) will not
bear the Private Placement Legend.




     (2) Global Note Legend. Each Global Note will bear a legend in substantially
the following form:




“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.6 OF THE INDENTURE, (2) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a) OF
THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL
NOTE MAY BE TRANSFERRED
TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.




     UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK,
NEW YORK) (‘DTC’), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN









 



-52-



THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.”




     (3) OID Legend. Each Note issued hereunder that has more than a de minimis
about of original issue discount for U.S. Federal Income Tax purposes shall bear a legend in
substantially the following form:




     “THIS NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF
SECTION 1271 ET SEQ. OF THE INTERNAL REVENUE CODE. A HOLDER MAY OBTAIN THE
ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND YIELD TO
MATURITY FOR SUCH NOTES BY SUBMITTING A REQUEST FOR SUCH INFORMATION TO THE
ISSUER AT THE FOLLOWING ADDRESS: DOLE FOOD COMPANY, INC., ONE DOLE DRIVE,
WESTLAKE VILLAGE, CALIFORNIA 91362 ATTENTION: CHIEF FINANCIAL OFFICER”



          (h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial
interests in a particular Global Note have been exchanged for Definitive Notes or a particular
Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global
Note will be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the
principal amount of Notes represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the Depositary at the
direction of the Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note will be increased accordingly
and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the
direction of the Trustee to reflect such increase.




          (i) General Provisions Relating to Transfers and Exchanges.




          (1) To permit registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication
Order in accordance with Section 2.2 hereof or at the Registrar’s request.





 











 




 -53-

          (2) No service charge shall be made to a Holder of a beneficial interest in a Global Note or
to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Sections 2.10, 3.6, 3.10, 4.10 and 9.5 hereof).




          (3) The Registrar shall not be required to register the transfer of or exchange of any Note
selected for redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part.




          (4) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange
of Global Notes or Definitive Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of transfer or exchange.




          (5) Neither the Registrar nor the Company will be required:





     (A) to issue, to register the transfer of or to exchange Notes during a period
beginning at the opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.2 hereof and ending at the close of business on the day of
selection;




     (B) to register the transfer of or to exchange any Note selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in part; or




     (C) to register the transfer of or to exchange a Note between a record date and the
next succeeding interest payment date.



          (6) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any
Agent and the Company may deem and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be
affected by notice to the contrary.




          (7) The Trustee will authenticate Global Notes and Definitive Notes in accordance with the
provisions of Section 2.2 hereof.




          (8) All certifications, certificates and Opinions of Counsel required to be submitted to the
Registrar pursuant to this Section 2.6 to effect a registration of transfer or exchange may be
submitted by facsimile.










 



-54-




          (j) Automatic Exchange from Restricted Global Note to Unrestricted Global Note.
Upon compliance with the following procedures, all of the beneficial interests in a Restricted
Global Note shall be exchanged for beneficial interests in the Unrestricted Global Note. In
order to effect such exchange, the Company shall provide written notice to the Trustee
instructing the Trustee to (i) direct the Depositary to transfer all of the outstanding
beneficial interests in a particular Restricted Global Note to the Unrestricted Global Note and
provide the Depositary with all such information as is necessary for the Depositary to
appropriately credit and debit the relevant Holder accounts and (ii) provide prior written notice
to all Holders of such exchange, which notice must include the date such exchange is to occur,
the CUSIP number of the relevant Restricted Global Note and the CUSIP number of the Unrestricted
Global Note into which such Holders’ beneficial interests will be exchanged. As a condition to
any such exchange pursuant to this Section 2.6(j), the Trustee shall be entitled to receive from
the Company, and rely conclusively without any liability, upon an Officers’ Certificate and an
Opinion of Counsel to the Company, in form and in substance reasonably satisfactory to the
Trustee, to the effect that such transfer of beneficial interests to the Unrestricted Global Note
shall be effected in compliance with the Securities Act. Upon such exchange of beneficial
interests pursuant to this Section 2.6(j), the Registrar shall endorse Schedule A to the relevant
Notes and reflect on its books and records the date of such transfer and a decrease and increase,
respectively, in the principal amount of the applicable Restricted Global Note(s) and the
Unrestricted Global Note, respectively, equal to the principal amount of beneficial interests
transferred. Following any such transfer pursuant to this Section 2.6(j), the relevant
Restricted Global Note shall be cancelled.




          (k) Transfers of Notes Held by Affiliates. Any certificate (i) evidencing a Note
that has been transferred to an affiliate (as defined in Rule 405) of the Company within one year
after the Issue Date, as evidenced by a notation on the assignment form for such transfer or in
the representation letter delivered in respect thereof or (ii) evidencing a Note that has been
acquired from an affiliate (other than by an affiliate) in a transaction or a chain of
transactions not involving any public offering, shall, until one year after the last date on
which either the Company or any affiliate of the Company was an owner of such Note, in each case,
be in the form of a permanent Definitive Note and bear the Private Placement Legend subject to
the restrictions in Section 2.6(g). The Registrar shall retain copies of all letters, notices
and other written communications received pursuant to this Section 2.6. The Company, at its sole
cost and expense, shall have the right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the giving of reasonable written notice
to the Registrar.




Section 2.7. Replacement Notes.




          If any mutilated Note is surrendered to the Trustee or either the Company or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company
shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a
replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Com-









 



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pany, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of
the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating
agent from any loss or liability that any of them may suffer if a Note is replaced, including but
not limited to, if the Note is subsequently presented or claimed for payment. The Trustee and the
Company each may charge such Holder for their expenses in replacing such Note.




          Every replacement Note is an additional obligation of the Company and shall be entitled to all
of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.




Section 2.8. Outstanding Notes.




          The Notes outstanding at any time are all the Notes that have been authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation, those reductions
in the interest in a Global Note effected by the Trustee or the Custodian in accordance with the
provisions hereof, and those described in this Section 2.8 as not outstanding. Except as set forth
in Section 2.9 hereof, a Note does not cease to be outstanding because the Company or any of its
Affiliates holds the Note.




          If a Note is replaced pursuant to Section 2.7 hereof, it shall cease to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide
purchaser for value.




          If the principal amount of any Note is considered paid under Section 4.1 hereof, it ceases to
be outstanding and interest on it ceases to accrue.




          If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof)
holds, on a Redemption Date or maturity date, money sufficient to pay Notes payable on that date,
then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease
to accrue interest.




Section 2.9. Treasury Notes.




          In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company, the Guarantors or by any Affiliate
thereof shall be considered as though not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver or consent, only
Notes that a Responsible Officer of the Trustee knows are so owned shall be so disregarded. The
Company agrees to notify the Trustee of the existence of any such treasury Notes or Notes owned by
the Company, any Guarantor or an Affiliate thereof.










 



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Section 2.10. Temporary Notes.




          Until certificates representing Notes are ready for delivery, the Company may prepare and the
Trustee, upon receipt of an Authentication Order, will authenticate temporary Notes. Temporary
Notes shall be substantially in the form of certificated Notes but may have such variations as the
Company considers appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate
definitive Notes in exchange for temporary Notes.




          Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.




Section 2.11. Cancellation.




          The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee, or at the direction of the Trustee, the Registrar or
Paying Agent, and no one else shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall dispose of all canceled Notes in
accordance with the Trustee’s usual procedures. The Trustee shall maintain a record of all
canceled Notes. All cancelled Notes shall be delivered to the Company. Subject to Section 2.7
hereof, the Company may not issue new Notes to replace Notes that have been paid or that have been
delivered to the Trustee for cancellation.




Section 2.12. Defaulted Interest.




          If the Company defaults in a payment of interest on the Notes, the Company shall pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent special record date, in each
case at the rate provided in the Notes and in Section 4.1 hereof. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the
date of the proposed payment. The Company shall fix or cause to be fixed each such special record
date and payment date, provided that no such special record date shall be less than 10 days
prior to the related payment date for such defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of the Company, the Trustee in the name and
at the expense of the Company) shall mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of such interest to be paid.




Section 2.13. Persons Deemed Owners.




          Prior to due presentment of a Note for registration of transfer and subject to Section 2.12
hereof, the Company, the Trustee, any Paying Agent, any co-registrar and any Registrar may deem and
treat the person in whose name any Note shall be registered upon the register of









 



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Notes kept by the Registrar as the absolute owner of such Note (whether or not such Note shall
be overdue and notwithstanding any notation of the ownership or other writing thereon made by
anyone other than the Company, any co-registrar or any Registrar) for the purpose of receiving all
payments with respect to such Note and for all other purposes, and none of the Company, the
Trustee, any Paying Agent, any co-registrar or any Registrar shall be affected by any notice to the
contrary.




Section 2.14. CUSIP and ISIN Numbers.




          The Company in issuing the Notes may use a “CUSIP” and/or ISIN or other similar number, and if
so, the Trustee shall use the CUSIP and/or ISIN or other similar number in notices of redemption or
exchange as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP and/or ISIN or other similar
number printed in the notice or on the Notes, and that reliance may be placed only on the other
identification numbers printed on the Notes. The Company shall notify the Trustee of any change to
the CUSIP and/or ISIN or other similar numbers.




ARTICLE III.




REDEMPTION AND REPURCHASE




Section 3.1. Notices to Trustee.




          If the Company elects to redeem Notes pursuant to the provisions of Section 3.7 or 3.8 hereof,
it shall furnish to the Trustee, at least 30 days but not more than 60 days before the Redemption
Date (unless a shorter notice period shall be satisfactory to the Trustee), an Officers’
Certificate setting forth the Section of this Indenture pursuant to which the redemption shall
occur, the Redemption Date, the principal amount of Notes to be redeemed and the Redemption Price.




          If the Company is required to offer to repurchase Notes pursuant to the provisions of Section
4.10, 4.15 or 4.24 hereof, it shall notify the Trustee in writing, at least 30 days but not more
than 60 days before the Purchase Date, of the Section of this Indenture pursuant to which the
repurchase shall occur, the Purchase Date, the principal amount of Notes required to be repurchased
and the Purchase Price and shall furnish to the Trustee an Officers’ Certificate to the effect that
(a) the Company is required to make or has made a Net Proceeds Offer, a Change of Control Offer or
an Event of Loss Offer, as the case may be, and (b) the conditions set forth in 4.10, 4.15 or 4.24
hereof, as the case may be, have been satisfied.




          If the Registrar is not the Trustee, the Company shall, concurrently with each notice of
redemption or repurchase, cause the Registrar to deliver to the Trustee a certificate (upon which
the Trustee may rely) setting forth the principal amounts of Notes held by each Holder.










 



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Section 3.2. Selection of Notes.




          Except as set forth below, if less than all of the Notes are to be redeemed, the Trustee shall
select the Notes or portions thereof to be redeemed either (1) in compliance with the requirements
of the principal national securities exchange, if any, on which the Notes are listed, or (2) on a
pro rata basis, by lot or by such method as the Trustee shall deem fair and appropriate. In the
event of partial redemption by lot, the particular Notes or portions thereof to be redeemed shall
be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the
Redemption Date by the Trustee from the outstanding Notes not previously called for redemption.




          If less than all of the Notes tendered are to be repurchased pursuant to the provisions of
Section 4.10, 4.15 or 4.24 hereof, the Trustee shall select the Notes or portions thereof to be
repurchased in compliance with Section 4.10, 4.15 or 4.24. In the event of partial repurchase by
lot, the particular Notes or portions thereof to be repurchased shall be selected at the close of
business of the last Business Day prior to the Purchase Date. If less than all of the Notes
tendered are to be repurchased pursuant to the provisions of Section 3.8 hereof, the Trustee shall
select the Notes only on a pro rata basis or on as nearly a pro rata basis as is practicable
(subject to DTC procedures).




          The Trustee shall promptly notify the Company in writing of the Notes or portions thereof
selected for redemption or repurchase and, in the case of any Note selected for partial redemption
or repurchase, the principal amount thereof to be redeemed or repurchased. Notes and portions
thereof selected shall be in amounts of $1,000 or integral multiples of $1,000; except that if all
of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000, shall be redeemed. No Notes of a principal amount of
$1,000 or less shall be redeemed in part.




Section 3.3. Notice of Optional or Special Redemption.




          In the event Notes are to be redeemed pursuant to Section 3.7 or 3.8 hereof, at least 30 days
but not more than 60 days before the Redemption Date, the Company shall mail a notice of redemption
to each Holder whose Notes are to be redeemed in whole or in part, with a copy to the Trustee.




          The notice shall identify the Notes or portions thereof to be redeemed (including the CUSIP
and/or ISIN or other similar number, if any) and shall state:




          (a) the Redemption Date;




          (b) the Redemption Price (and Additional Interest payable, if any);




          (c) if any Note is being redeemed in part, the portion of the principal amount of such Note
to be redeemed and that, after the Redemption Date, upon surrender of









 



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such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be
issued;



          (d) the name and address of the Paying Agent;




          (e) that Notes called for redemption must be surrendered to the Paying Agent to collect the
Redemption Price, Additional Interest, if any, and, unless the Redemption Date is after a record
date and or before the succeeding interest payment date, accrued interest thereon to the
Redemption Date;




          (f) that, unless the Company defaults in making the redemption payment, interest and any
Additional Interest on Notes called for redemption will cease to accrue on and after the
Redemption Date, and the only remaining right of the Holders of such Notes is to receive payment
of the Redemption Price, any Additional Interest and, unless the Redemption Date is after a
record date and on or before the succeeding interest payment date, accrued interest thereon to
the Redemption Date upon surrender to the Paying Agent of the Notes redeemed;




          (g) if fewer than all the Notes are to be redeemed, the identification of the particular
Notes (or portions thereof) to be redeemed, as well as the aggregate principal amount of the
Notes to be redeemed and the aggregate principal amount of Notes to be outstanding after such
partial redemption;




          (h) the paragraph of the Notes pursuant to which the Notes called for redemption are being
redeemed;




          (i) that no representation is made as to the correctness or accuracy of the CUSIP number, if
any, listed in such notice or printed on the Notes and that reliance may be placed only on the
other identification numbers printed on the Notes; and




          (j) the aggregate principal amount of Notes that are being redeemed.




          At the Company’s request, the Trustee shall give the notice of redemption in the form prepared
by the Company pursuant to this Indenture in the Company’s name and at its expense; provided that
the Company shall deliver to the Trustee, at least 40 days prior to the Redemption Date, an
Officers’ Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.




Section 3.4. Effect of Notice of Redemption.




          Once notice of redemption is mailed, Notes or portions thereof called for redemption become
due and payable on the Redemption Date at the Redemption Price. Upon surrender to any Paying
Agent, such Notes or portions thereof shall be paid at the Redemption Price, plus Additional
Interest, if any, and accrued interest to the Redemption Date; provided, however,
that









 



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installments of interest which are due and payable on or prior to the Redemption Date shall be
payable to the Holders of such Notes, registered as such, at the close of business on the relevant
record date for the payment of such installment of interest.




Section 3.5. Deposit of Redemption Price or Purchase Price.




          On or before 10:00 a.m. Eastern Time on each Redemption Date or Purchase Date, the Company
shall irrevocably deposit with the Trustee or with the Paying Agent money sufficient to pay the
aggregate amount due on all Notes to be redeemed or repurchased on that date, including without
limitation any accrued and unpaid interest and Additional Interest, if any, to the Redemption Date
or Purchase Date. Upon written request by the Company, the Trustee or the Paying Agent shall
promptly return to the Company any money not required for that purpose.




          Unless the Company defaults in making such payment, interest and any Additional Interest on
the Notes to be redeemed or repurchased will cease to accrue on the applicable Redemption Date or
Purchase Date, whether or not such Notes are presented for payment. If any Note called for
redemption shall not be so paid upon surrender because of the failure of the Company to comply with
the preceding paragraph, interest will be paid on the unpaid principal, from the applicable
Redemption Date or Purchase Date until such principal is paid, and on any interest not paid on such
unpaid principal, in each case at the rate provided in the Notes and in Section 4.1 hereof.




Section 3.6. Notes Redeemed or Repurchased in Part.




          Upon surrender of a Note that is redeemed or repurchased in part, the Company shall issue and
the Trustee shall authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to portion of the Note surrendered that is not to be redeemed or repurchased.




Section 3.7. Optional Redemption.




          The Company may redeem any or all of the Notes at any time on or after March 15, 2012 at the
Redemption Prices set forth in the Notes (an “Optional Redemption”). Any redemption
pursuant to this Section 3.7 shall be made pursuant to the provisions of Sections 3.1 through 3.6
hereof.




Section 3.8. Optional Redemption upon Equity Offerings.




          In the event the Company completes one or more Equity Offerings on or before March 15, 2012,
the Company, at its option, may use the net cash proceeds from any such Equity Offering to redeem
up to 35% of the original principal amount of the Notes (a “Special Redemption”) at a
Redemption Price of 113.875% of the principal amount thereof, together with accrued and unpaid
interest and Additional Interest, if any, to the date of redemption, provided,
however, that at least 65% of the original principal amount of the Notes initially issued
under this Inden-









 



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ture will remain outstanding immediately after each such Special Redemption; and
provided, further, that such Special Redemption shall occur within 90 days after
the date of the closing of the applicable Equity Offering. Any redemption pursuant to this Section
3.8 shall be made pursuant to the provisions of Sections 3.1 through 3.6 hereof.




Section 3.9. Repurchase upon Change of Control Offer.




          In the event that, pursuant to Section 4.15 hereof, the Company shall be required to commence
a Change of Control Offer, it shall follow the procedures specified below.




          The Change of Control Offer shall remain open for a period from the date of the mailing of the
notice of the Change of Control Offer described in the next paragraph until a date determined by
the Company which is at least 30 but no more than 60 days from the date of mailing of such notice
and no longer, except to the extent that a longer period is required by applicable law (the
“Change of Control Offer Period”). On the Purchase Date, which shall be the first Business
Day following the last day of the Change of Control Offer Period, the Company shall purchase the
principal amount of Notes properly tendered in response to the Change of Control Offer. Payment
for any Notes so purchased shall be made in the same manner as interest payments are made.




          Prior to the mailing of the notice referred to above, but in any event within 30 days
following any Change of Control, the Company covenants to (1) repay in full all Obligations, and
terminate all commitments, under the Credit Agreements and all other Guarantor Senior Debt the
terms of which require repayment upon a Change of Control or offer to repay in full all
Obligations, and terminate all commitments under, the Credit Agreements and all other such
Guarantor Senior Debt and to repay the Indebtedness owed to (and terminate the commitments of) each
lender which has accepted such offer; or (2) obtain the requisite consents under the Credit
Agreements and all other Guarantor Senior Debt to permit the repurchase of the Notes as provided
below. The Company shall first comply with the covenant in the immediately preceding sentence
before it shall be required to either repurchase Notes or send the notice pursuant to the
provisions described above. The Company’s failure to comply with the covenant described in the
second preceding sentence (and any failure to send the notice referred to in the immediately
succeeding paragraph as a result of the prohibition in the second preceding sentence) may (with
notice and lapse of time) constitute an Event of Default described in clause (c) of Section 6.1
hereof, but shall not constitute an Event of Default described in clause (b) under Section 6.1
hereof.




          Within 30 days following any Change of Control, the Company shall send, by first class mail, a
notice to the Trustee and each of the Holders. The notice shall contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the Change of Control Offer.
The Change of Control shall be made to all Holders. The notice, which shall govern the terms of
the Change of Control Offer, shall state:










 



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          (a) the transaction or transactions that constitute the Change of Control, providing
information, to the extent publicly available, regarding the Person or Persons acquiring control,
and stating that the Change of Control Offer is being made pursuant to this Section 3.9 and
Section 4.15 hereof and that, to the extent lawful, all Notes tendered will be accepted for
payment;




          (b) the Purchase Price, the last day of the Change of Control Offer Period, and the Purchase
Date;




          (c) that any Note not properly tendered or otherwise not accepted for repurchase will
continue to accrue interest and Additional Interest, if any;




          (d) that, unless the Company defaults in the payment of the amount due on the Purchase Date,
all Notes or portions thereof accepted for repurchase pursuant to the Change of Control Offer
shall cease to accrue interest and Additional Interest, if any, after the Purchase Date;




          (e) that Holders electing to have any Notes purchased pursuant to the Change of Control
Offer will be required to tender the Notes, with the form entitled “Option of Holder To Elect
Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the
Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in
the notice not later than the third Business Day preceding the Purchase Date;




          (f) that Holders will be entitled to withdraw their election if the Company, the Depositary
or the Paying Agent, as the case may be, receives, not later than the expiration of the Change of
Control Offer Period, a telegram, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of Notes delivered for repurchase, and a statement that such Holder
is withdrawing his election to have the Notes redeemed in whole or in part; and




          (g) that Holders whose Notes are being repurchased only in part will be issued new Notes
equal in principal amount to the portion of the Notes tendered (or transferred by book-entry
transfer) that is not to be repurchased, which portion must be equal to $1,000 in principal
amount or an integral multiple thereof.




          On or before the Purchase Date, the Company shall to the extent lawful, (i) accept for payment
all Notes or portions thereof properly tendered pursuant to the Change of Control Offer, (ii)
deposit with the Paying Agent an amount equal to the Purchase Price, together with accrued and
unpaid interest and Additional Interest, if any, thereon to the Purchase Date in respect of all
Notes or portions thereof so tendered and accepted for repurchase and (iii) deliver or cause to be
delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the
aggregate principal amount of Notes or portions thereof being repurchased by the
Company. The Paying Agent shall promptly (but in any case not later than five days after the










 



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Purchase Date) mail to each Holder of Notes so repurchased the amount due in connection with such
Notes, and the Company shall promptly issue a new Note, and the Trustee, upon written request from
the Company in the form of an Officers’ Certificate shall authenticate and mail or deliver (or
cause to transfer by book entry) to each relevant Holder a new Note, in a principal amount equal to
any unpurchased portion of the Notes surrendered to the Holder thereof; provided, that each
such new Note shall be in a principal amount of $l,000 or and integral multiple thereof. The
Company shall publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Purchase Date.




          If the Purchase Date is on or after an interest record date and on or before the related
interest payment date, any accrued and unpaid interest and Additional Interest, if any, in each
case to the Purchase Date, shall be paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest shall be payable to Holders
pursuant to the Change of Control Offer.




Section 3.10. Repurchase upon Application of Excess Proceeds.




          In the event that, pursuant to Section 4.10 hereof, the Company shall be required to commence
a Net Proceeds Offer, it shall follow the procedures specified below.




          The notice shall contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Net Proceeds Offer. The Net Proceeds Offer shall be made to all
Holders. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of
Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee,
and shall comply with the procedures set forth in this Section 3.10. Upon receiving notice of the
Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral
multiples of $1,000 in exchange for cash. A Net Proceeds Offer shall remain open for a period of 20
Business Days or such longer period as may be required by law. The notice, which shall govern the
terms of the Net Proceeds Offer, shall state:




          (a) that the Net Proceeds Offer is being made pursuant to this Section 3.10 and Section 4.10
hereof;




          (b) the Net Proceeds Offer Amount, the Purchase Price and the Purchase Date;




          (c) that any Note not properly tendered or otherwise not accepted for repurchase shall
continue to accrue interest and Additional Interest, if any;




          (d) that, unless the Company defaults in the payment of the amount due on the Purchase Date,
all Notes or portions thereof accepted for repurchase pursuant to the Net
Proceeds Offer shall cease to accrue interest and Additional Interest, if any, after the
Purchase Date;











 



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          (e) that Holders electing to have any Notes repurchased pursuant to any Net Proceeds Offer
shall be required to tender the Notes, with the form entitled “Option of Holder To Elect
Purchase” on the reverse of the Notes completed, or transfer by book-entry transfer, to the
Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in
the notice prior to the close of business on the third Business Day preceding the Purchase Date;




          (f) that Holders will be entitled to withdraw their election if the Company, the Depositary
or the Paying Agent, as the case may be, receives, not later than the Purchase Date, a telegram,
facsimile transmission or letter setting forth the name of the Holder, the principal amount of
the Notes delivered for repurchase and a statement that such Holder is withdrawing his election
to have such Notes repurchased in whole or in part;




          (g) that, to the extent Holders properly tender Notes and holders of Pari Passu Junior Lien
Obligations or Pari Passu Debt, as applicable, properly tender such Indebtedness in an amount
exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Junior Lien
Obligations or Pari Passu Debt, as applicable, will be purchased on a pro rata basis based on the
aggregate amounts of Notes and Pari Passu Junior Lien Obligations or Pari Passu Debt, as
applicable, tendered (and the Trustee shall select the tendered Notes of tendering Holders on a
pro rata basis based on the amount of Notes tendered); and




          (h) that Holders whose Notes are being repurchased only in part will be issued new Notes
equal in principal amount to the portion of the Notes tendered (or transferred by book-entry
transfer) that is not to be repurchased, which portion must be equal to $1,000 in principal
amount or an integral multiple thereof.




          On or before the Purchase Date, the Company shall to the extent lawful, (i) accept for
payment, on a pro rata basis in accordance with this Indenture to the extent necessary, the Net
Proceeds Offer Amount of (A) Notes or portions thereof properly tendered pursuant to the Net
Proceeds Offer and (B) properly tendered Pari Passu Junior Lien Obligations or Pari Passu Debt, as
applicable, or if less than the Net Proceeds Offer Amount has been tendered, all Notes and Pari
Passu Junior Lien Obligations or Pari Passu Debt, as applicable, properly tendered, (ii) deposit
with the Paying Agent an amount equal to the Purchase Price, plus accrued and unpaid interest and
Additional Interest, if any, thereon to the Purchase Date in respect of all Notes or portions
thereof so tendered and accepted for repurchase and (iii) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate
principal amount of Notes or portions thereof being repurchased by the Company. The Paying Agent
shall promptly (but in any case not later than five days after the Purchase Date) mail to each
Holder of Notes so repurchased the amount due in connection with such Notes, and the Company shall
promptly issue a new Note, and the Trustee, upon written request from the Company in the form of an Officers’ Certificate shall authenticate and mail or deliver such new
Note to such Holder, in a principal amount equal to any unpurchased portion to the Holder thereof;
provided that each such new Note shall be in a principal amount of $1,000 or an integral
multiple










 



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thereof. The Company shall publicly announce the results of the Net Proceeds Offer on or
as soon as practicable after the Purchase Date.




          If the Purchase Date is on or after an interest record date and on or before the related
interest payment date, any accrued and unpaid interest and Additional Interest, if any, in each
case to the Purchase Date, shall be paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest shall be payable to Holders to
the Net Proceeds Offer.




Section 3.11. Repurchase upon Event of Loss Offer.




          In the event that, pursuant to Section 4.24 hereof, the Company shall be required to commence
an Event of Loss Offer, it shall follow the procedures specified below.




          The notice shall contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Event of Loss Offer. The Event of Loss Offer shall be made to all
Holders. Each Event of Loss Offer will be mailed to the Holders as shown on the register of
Holders within 25 days following the Event of Loss Offer Trigger Date, with a copy to the Trustee,
and shall comply with the procedures set forth in this Section 3.11. Upon receiving notice of the
Event of Loss Offer, Holders may elect to tender their Notes in whole or in part in integral
multiples of $1,000 in exchange for cash. An Event of Loss Offer shall remain open for a period of
20 Business Days or such longer period as may be required by law. The notice, which shall govern
the terms of the Event of Loss Offer, shall state:




          (a) that the Event of Loss Offer is being made pursuant to this Section 3.11 and Section
4.24 hereof;




          (b) the Event of Loss Offer Amount, the Purchase Price and the Purchase Date;




          (c) that any Note not properly tendered or otherwise not accepted for repurchase shall
continue to accrue interest and Additional Interest, if any;




          (d) that, unless the Company defaults in the payment of the amount due on the Purchase Date,
all Notes or portions thereof accepted for repurchase pursuant to the Event of Loss Offer shall
cease to accrue interest and Additional Interest, if any, after the Purchase Date;




          (e) that Holders electing to have any Notes repurchased pursuant to any Event of Loss Offer
shall be required to tender the Notes, with the form entitled “Option of Holder To Elect
Purchase” on the reverse of the Notes completed, or transfer by book-entry
transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at
the address specified in the notice prior to the close of business on the third Business Day
preceding the Purchase Date;










 



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          (f) that Holders will be entitled to withdraw their election if the Company, the Depositary
or the Paying Agent, as the case may be, receives, not later than the Purchase Date, a telegram,
facsimile transmission or letter setting forth the name of the Holder, the principal amount of
the Notes delivered for repurchase and a statement that such Holder is withdrawing his election
to have such Notes repurchased in whole or in part;




          (g) that, to the extent Holders properly tender Notes and holders of Pari Passu Debt
properly tender such Indebtedness in an amount exceeding the Event of Loss Offer Amount, the
tendered Notes and Pari Passu Debt will be purchased on a pro rata basis based on the aggregate
amounts of Notes and Pari Passu Debt tendered (and the Trustee shall select the tendered Notes of
tendering Holders on a pro rata basis based on the amount of Notes tendered); and




          (h) that Holders whose Notes are being repurchased only in part will be issued new Notes
equal in principal amount to the portion of the Notes tendered (or transferred by book-entry
transfer) that is not to be repurchased, which portion must be equal to $1,000 in principal
amount or an integral multiple thereof.




          On or before the Purchase Date, the Company shall to the extent lawful, (i) accept for
payment, on a pro rata basis to the extent necessary, the Event of Loss Offer Amount of (A) Notes
or portions thereof properly tendered pursuant to the Event of Loss Offer and (B) properly tendered
Pari Passu Junior Lien Obligations, or if less than the Event of Loss Offer Amount has been
tendered, all Notes and Pari Passu Junior Lien Obligations properly tendered, (ii) deposit with the
Paying Agent an amount equal to the Purchase Price, plus accrued and unpaid interest and Additional
Interest, if any, thereon to the Purchase Date in respect of all Notes or portions thereof so
tendered and accepted for repurchase and (iii) deliver or cause to be delivered to the Trustee the
Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of
Notes or portions thereof being repurchased by the Company. The Paying Agent shall promptly (but
in any case not later than five days after the Purchase Date) mail to each Holder of Notes so
repurchased the amount due in connection with such Notes, and the Company shall promptly issue a
new Note, and the Trustee, upon written request from the Company in the form of an Officers’
Certificate shall authenticate and mail or deliver such new Note to such Holder, in a principal
amount equal to any unpurchased portion to the Holder thereof; provided that each such new
Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Company shall
publicly announce the results of the Event of Loss Offer on or as soon as practicable after the
Purchase Date.




          If the Purchase Date is on or after an interest record date and on or before the related
interest payment date, any accrued and unpaid interest and Additional Interest, if any, in
each case to the Purchase Date, shall be paid to the Person in whose name a Note is registered
at the close of business on such record date, and no additional interest shall be payable to
Holders to the Event of Loss Offer.










 



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ARTICLE IV.




COVENANTS




Section 4.1. Payment of Principal and Interest.




          The Company shall pay or cause to be paid the principal, Redemption Price and Purchase Price
of, and interest on the Notes on the dates, in the amounts and in the manner provided herein and in
the Notes. Principal, Redemption Price, Purchase Price and interest shall be considered paid on
the date due if the Paying Agent, if other than the Company, holds as of 10:00 a.m. Eastern Time on
the due date money deposited by the Company in immediately available funds and designated for and
sufficient to pay the aggregate amount then due. The Company shall pay all Additional Interest, if
any, on the dates, in the amounts and in the manner set forth in the Registration Rights Agreement.




          The Company shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal, Redemption Price and Purchase Price at the rate equal to 1%
per annum in excess of the then applicable interest rate on the Notes to the extent lawful; it
shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Additional Interest (without regard to any applicable grace
period) at the same rate to the extent lawful.




Section 4.2. Maintenance of Office or Agency.



          The Company shall maintain in the Borough of Manhattan, the City of New York, an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate
Office of the Trustee.




          The Company may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations provided, however, that no such designation or rescission shall in any
manner relieve the Company of its obligations to maintain an office or agency in the Borough of
Manhattan, the City of New York, for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or rescission and of
any change in the location of any such other office or agency.




          The Company hereby designates the Corporate Trust Office of the Trustee as one such office or
agency of the Company in accordance with Section 2.3. The Trustee may resign











 



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such agency at any
time by giving written notice to the Company no later than 30 days prior to the effective date of
such resignation.




Section 4.3. Reports.




          Whether or not required by the rules and regulations of the Commission, so long as any Notes
are outstanding, the Company will deliver to each Holder, within the time periods specified in the
Commission’s rule and regulations:





     (i) all quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the Company were
required to file such Forms, including a “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” that describes the financial condition and results of
operations of the Company and its consolidated Subsidiaries and, with respect to the annual
information only, a report thereon by the Company’s certified independent accountants; and




     (ii) all current reports that would be required to be filed with the Commission on Form
8-K if the Company were required to file such reports, in each case within the time periods
specified in the Commission’s rules and regulations.



          In addition, whether or not required by the rules and regulations of the Commission, the
Company will file electronically via the Electronic Data Gathering, Analysis and Retrieval (EDGAR)
system or any successor system maintained by the Commission a copy of all such information and
reports with the Commission for public availability within the time periods specified in the
Commission’s rules and regulations (unless the Commission will not accept such a filing) and make
such information available to securities analysts and prospective investors upon request. In
addition, for so long as any Notes remain outstanding, the Company will furnish to the Holders and
to securities analysts and prospective investors, upon their request, the information required to
be delivered pursuant to Rule 144A(d)(4) under the Securities Act.




Section 4.4. Compliance Certificate.




          The Company and each Guarantor shall deliver to the Trustee, within 120 days after the end of
each fiscal year, an Officers’ Certificate further stating that a review of the activities of the
Company and its Subsidiaries during the preceding fiscal year has been made under the supervision
of the signing Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture in all material respects, and further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture in all material respects and is not in Default in the
performance or observance of any of the terms, provisions and conditions of this Indenture (and, if
a Default or Event of Default shall have occurred, describing all such Defaults or Events of
Default) of which he or she may have knowledge, and that to the best of his or her knowledge no
event has










 



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occurred and remains in existence by reason of which, payments on account of the
principal of or interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event.




          So long as not contrary to the then current recommendations of the American Institute of
Certified Public Accountants, the year-end financial statements delivered pursuant to Section 4.3
above shall be accompanied by a written statement of the Company’s independent public accountants
(who shall be a firm of established national reputation) that in making the examination necessary
for certification of such financial statements, nothing has come to their attention that would lead
them to believe that the Company has violated any provisions of Article IV or Article V hereof or,
if any such violation has occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.




          The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee,
forthwith (and in any event within five Business Days) upon any Officer of the Company becoming
aware of any Default or Event of Default an Officers’ Certificate specifying such Default or Event
of Default and what action the Company and Guarantors are taking or propose to take thereto.




          Except with respect to receipt of payments hereunder and any Default or Event of Default
information contained in an Officers’ Certificate delivered to it pursuant to this Section 4.4, the
Trustee shall have no duty ro review, ascertain or confirm the Company’s compliance with, or breach
of any representation, warranty or covenant made in this Indenture.




Section 4.5. Taxes.




          The Company shall pay or discharge, and shall cause each of its Subsidiaries to pay or
discharge, prior to delinquency, all material taxes, assessments, and governmental levies except
such as are contested in good faith and by appropriate proceedings or where the failure to effect
such payment is not adverse in any material respect to the Holders of the Notes.




Section 4.6. Stay, Extension and Usury Laws.




          The Company covenants (to the extent that it may lawfully do so) that it shall not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants it shall not, by resort to any such law, hinder, delay or impede the execution
of any power herein granted to the Trustee, but shall suffer and permit the execution of every such
power as though such law has not been enacted.











 



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Section 4.7. Limitation on Restricted Payments.




          The Company will not, and will not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly:





     (1) declare or pay any dividend or make any distribution (other than dividends or
distributions payable in Qualified Capital Stock of the Company) on or in respect of shares
of the Company’s Capital Stock to holders of such Capital Stock;




     (2) purchase, redeem or otherwise acquire or retire for value any Capital Stock of the
Company or any warrants, rights or options to purchase or acquire shares of any class of
such Capital Stock;




     (3) make any principal payment on, purchase, defease, redeem, prepay, decrease or
otherwise acquire or retire for value, prior to any scheduled final maturity, scheduled
redemption or repayment or scheduled sinking fund payment, any Subordinated Indebtedness; or




     (4) make any Investment (other than Permitted Investments)


(each of the foregoing actions set forth in clauses (1), (2), (3) and (4) being referred to as a
“Restricted Payment”) if at the time of such Restricted Payment or immediately after giving
effect thereto,





     (i) a Default or an Event of Default shall have occurred and be continuing; or




     (ii) the Company is not able to incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) in compliance with paragraph (a) of Section 4.9 hereof; or




     (iii) the aggregate amount of Restricted Payments (including such proposed Restricted
Payment) made subsequent to the Issue Date (the amount expended for such purposes, if other
than in cash, being the fair market value of such property as determined in good faith by
the Board of Directors of the Company) shall exceed the sum of:




     (v) 50% of the cumulative Consolidated Net Income (or if cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company
earned during the period commencing on and including March 29, 2009 and
ending on the last day of the most recent fiscal quarter for which financial
information is available to the Company (treating such period as a single accounting
period); provided that the amount set forth in this subclause (v), if positive,
shall not be included in determining the amount available for Restricted Payments
under this clause (iii) unless (A) none of the Company’s 7.25% notes due 2010 shall
be outstanding on the date of determination and (B) the Consolidated Leverage









 



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Ratio
of the Company is less than or equal to 4.0 to 1.0 after giving effect to any
Restricted Payment made on such date of determination; plus




     (w) 100% of the aggregate net cash proceeds and the fair market value (as
determined in good faith by the Board of Directors of the Company) of any asset or
property other than cash received by the Company from any Person (other than a
Subsidiary of the Company) as a contribution to capital or from the issuance and
sale subsequent to the Issue Date and on or prior to the date such Restricted
Payment is made of Qualified Capital Stock of the Company or warrants, options or
other rights to acquire Qualified Capital Stock of the Company (but excluding any
debt security that is convertible into, or exchangeable for, Qualified Capital Stock
until such debt security has been converted into, or exchanged for, Qualified
Capital Stock); plus




     (x) without duplication of any amounts included in clause (iii)(w) above, 100%
of the aggregate net cash proceeds of any equity contribution received by the
Company subsequent to the Issue Date and on or prior to the date such Restricted
Payment is made from a holder of the Company’s Capital Stock (excluding, in the case
of clauses (iii)(w) and (x), any net cash proceeds from an Equity Offering to the
extent used to redeem the Notes in compliance with the provisions set forth under
Section 3.8 hereof); plus




     (y) without duplication, the sum of:




     (1) the aggregate amount returned in cash on or with respect to
Investments (other than Permitted Investments) made subsequent to the Issue
Date whether through interest payments, principal payments, dividends or
other distributions or payments;




     (2) the net cash proceeds and the fair market value (as determined in
good faith by the Board of Directors of the Company) of any asset or
property other than cash received by the Company or any of its Restricted
Subsidiaries from the disposition of all or any portion of such Investments
(other than to a Subsidiary of the Company); and




     (3) upon redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary, the fair market value of such Subsidiary;




provided, however, that the amounts included in clauses (1), (2) and
(3) above shall not be included in “Consolidated Net Income” for purposes of clause
(iii)(v) above; plus




     (z) $15.0 million.









 



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          Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph
do not prohibit:





     (1) the payment of any dividend within 60 days after the date of declaration of such
dividend if the dividend would have been permitted on the date of declaration;




     (2) the acquisition of any shares of Capital Stock of the Company either (i) solely in
exchange for shares of Qualified Capital Stock of the Company or (ii) through the
application of net proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock of the Company;




     (3) the repurchase, redemption or other payment or an acquisition of any Subordinated
Indebtedness either (i) solely in exchange for shares of Qualified Capital Stock of the
Company, or (ii) through the application of net proceeds of a substantially concurrent sale
(other than to a Subsidiary of the Company) of (a) shares of Qualified Capital Stock of the
Company for cash or (b) Refinancing Indebtedness;




     (4) so long as no Default or Event of Default shall have occurred and be continuing,
dividends or distributions to Holdings to permit it to repurchase Common Stock of Holdings
or purchases by the Company of Common Stock of Holdings from employees of Holdings or the
Company or any of its Subsidiaries or their authorized representatives upon the death,
disability or termination of employment of such employees, in an aggregate amount not to
exceed $2.0 million in any calendar year;




     (5) loans, advances, dividends or distributions by the Company to Holdings not to
exceed an amount necessary to permit Holdings to pay any costs (including, without
limitation, all professional fees and expenses) incurred to comply with its reporting
obligations under federal or state laws in connection with the Credit Agreements or any
other agreement or instrument relating to Indebtedness of Holdings, the Company or any
Restricted Subsidiary, or otherwise incurred in connection with compliance with applicable
laws or applicable rules of any governmental, regulatory or self-regulatory body or stock
exchange, including in respect of reports filed with respect to the Securities Act, the
Exchange Act or the respective rules and regulations promulgated thereunder and, for so long
as Holdings’ primary business is to hold the Capital Stock of the Company, all other costs
incurred by Holdings relating to Holdings’ ownership of the Capital Stock of the Company;




     (6) payments by the Company to Holdings to pay (x) any taxes, charges or assessments
(other than federal, state and local income taxes and withholding imposed on payments made
by Holdings) required to be paid by Holdings by virtue of its being incorporated or having
capital stock outstanding (but not by virtue of owning stock or other equity interests of
any corporation other than the Company or any of its Subsidiaries), or being a holding
company parent of the Company or receiving actual or, in the case of









 



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Subsidiaries of the
Company, deemed dividends from or other distributions in respect of the stock of the Company
or any of its Subsidiaries, or having guaranteed any obligations of the Company or any
Subsidiary, or having made any payment in respect of any of the items for which the Company
is permitted to make payments to Holdings pursuant to this covenant or (y) any other
federal, state, foreign, provincial or local taxes for which Holdings is liable up to an
amount not to exceed with respect to any such taxes the total amount of such taxes which the
Company would have been required to pay on a separate company basis or on a consolidated
basis if the Company had filed a consolidated return on behalf of an affiliated group (as
defined in Section 1504 of the Internal Revenue Code of 1986, as amended, or an analogous
provision of state, local or foreign law) of which it were the common parent, or with
respect to state and local taxes, on a combined basis if the Company had filed a combined
return on behalf of an affiliated group of which it were a member;




     (7) payments made to purchase, redeem, defease or otherwise acquire or retire for value
any Subordinated Indebtedness of the Company pursuant to provisions requiring the Company to
offer to purchase, redeem, defease or otherwise acquire or retire for value such
Subordinated Indebtedness upon the occurrence of a “change of control” as defined in the
agreements or instruments governing such Subordinated Indebtedness; provided,
however, that the Company has made a Change of Control Offer and has purchased all
Notes tendered in connection with such Change of Control Offer;




     (8) repurchase of Capital Stock deemed to occur upon exercise of stock options if such
Capital Stock represents a portion of the exercise price of those options;




     (9) payments to the Dole Food Company Inc. Excess Savings Plan or any trust established
with respect to the Dole Food Company Inc. Excess Savings Plan; and




     (10) payments made to the holders of Capital Stock in any Person that is merged or
consolidated with or into the Company or any Restricted Subsidiary pursuant to any merger,
consolidation or sale of assets effected in accordance with Section 5.1 hereof;
provided, however, that no such payment may be made pursuant to this clause
(10) unless, after giving pro forma effect to such transaction, and the incurrence of any
Indebtedness in connection with such transaction and the use of the proceeds from such
transaction, the Company would be able to incur $1.00 of additional Indebtedness under
paragraph (a) of Section 4.9 hereof.



          In determining the aggregate amount of Restricted Payments made subsequent to the Issue Date
in accordance with clause (iii) of the second preceding paragraph, amounts expended pursuant to
clauses (1), (2)(ii), (3)(ii)(a) and (4) of the immediately preceding paragraph shall be included
in such calculation.










 



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Section 4.8. Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries




          The Company will not, and will not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly, create or otherwise cause or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted Subsidiary of the Company
to:





     (1) pay dividends or make any other distributions on or in respect of its Capital
Stock;




     (2) make loans or advances to the Company or any other Restricted Subsidiary or to pay
any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary
of the Company; or




     (3) transfer any of its property or assets to the Company or any other Restricted
Subsidiary of the Company,


except in each case for such encumbrances or restrictions existing under or by reason of:




          (a) applicable law or any rule, regulation or order;




          (b) this Indenture, the Notes, the Guarantees and the Security Documents;




          (c) customary non-assignment provisions or restrictions on cash or other deposits and net
worth covenants contained in any contract or any lease governing a leasehold interest of any
Restricted Subsidiary of the Company;




          (d) any agreement or instrument governing Acquired Indebtedness, 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 Person so acquired;




          (e) agreements or instruments existing on the Issue Date to the extent and in the manner
such agreements are in effect on the Issue Date, including the Existing Notes Indentures and the
Existing Note Guarantees;




          (f) the Credit Agreements;




          (g) an agreement governing Guarantor Senior Debt permitted to be incurred under this
Indenture (other than Guarantor Senior Debt under, or with respect to, the Credit Agreements);
provided that, with respect to any agreement governing such Guarantor Senior Debt, the
provisions relating to such encumbrance or restriction are no less favorable to the Company in
any material respect as determined by the Board of Directors of the Company in its reasonable and
good faith judgment than the provisions contained in the Credit Agreements as in effect on the
Issue Date;











 



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          (h) restrictions on the transfer of assets subject to any Lien permitted under Section 4.12
imposed by the holder of such Lien;




          (i) restrictions imposed by any agreement to sell assets or Capital Stock permitted under
this Indenture to any Person pending the closing of such sale;




          (j) customary provisions in joint venture agreements and other similar agreements (in each
case relating solely to the respective joint venture or similar entity or the equity interests
therein) entered into in the ordinary course of business;




          (k) other Indebtedness of Restricted Subsidiaries that are not Guarantors permitted to be
incurred pursuant to an agreement entered into subsequent to the Issue Date in accordance with
Section 4.9 hereof; provided, however, that the Board of Directors of the Company
determines in good faith at the time such dividend and other payment restrictions are created
that such dividend and other payment restrictions do not materially adversely affect the
Company’s ability to pay principal of, and interest on, the Notes;




          (l) purchase money obligations (including any Capitalized Lease Obligations) relating to
property acquired in the ordinary course of business; or




          (m) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued,
assumed or incurred pursuant to an agreement referred to in clauses (b), (d), (e) and (g) through
(l) above; provided, however, that the provisions relating to such encumbrance or
restriction contained in any such Indebtedness are not in the aggregate materially less favorable
to the Company as determined by the Board of Directors of the Company in their reasonable and
good faith judgment than the provisions relating to such encumbrance or restriction contained in
agreements referred to in such clauses (b),(d), (e) and (g) through (l).




Section 4.9. Limitation on Incurrence of Additional Indebtedness.




          (a) The Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, assume, guarantee, acquire, become liable, contingently or
otherwise, with respect to, or otherwise become responsible for payment of (collectively,
“incur”) any Indebtedness (other than Permitted Indebtedness); provided,
however, that if no Default or Event of Default shall have occurred and be continuing at
the time of or as a consequence of the incurrence of any such Indebtedness, the Company or any of its
Restricted Subsidiaries that is or, upon such incurrence, becomes a Guarantor may incur
Indebtedness (including, without limitation, Acquired Indebtedness) and any Restricted Subsidiary
of the Company that is not or will not, upon such incurrence, become a Guarantor may incur
Acquired Indebtedness, in each case if on the date of the incurrence of such Indebtedness, after
giving effect to the incurrence thereof, the Consolidated Fixed Charge Coverage Ratio of the
Company is greater than 2.0 to 1.0.










 



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          (b) Notwithstanding clause (a) above, the Company will not incur any Indebtedness if such
Indebtedness is by its terms subordinate or junior in right of payment to any other Indebtedness
of the Company, unless such Indebtedness is also by its terms made subordinate or junior in right
of payment to the Notes to the same extent and in the same manner as such Indebtedness is
subordinated to other Indebtedness of the Company.




Section 4.10. Limitation on Asset Sales.




          (A) The Company will not, and will not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless:





     (1) the Company or the applicable Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of (as determined in good faith by the Company’s Board of
Directors);




     (2) at least 75% of the consideration received by the Company or the Restricted
Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash, Cash
Equivalents or Replacement Assets and shall be received at the time of such disposition;
provided that:




     (a) the amount of any liabilities (as shown on the Company’s or such Restricted
Subsidiary’s most recent balance sheet) of the Company or any such Restricted
Subsidiary (other than liabilities that are by their terms subordinated in right of
payment to the Notes or any Guarantee of a Guarantor) that are assumed by the
transferee of any such assets, and




     (b) the fair market value of any securities or other assets received by the
Company or any such Restricted Subsidiary in exchange for any such assets that are
converted into cash within 180 days after such Asset Sale,




shall be deemed to be cash for purposes of this provision; and




     (3) upon the consummation of an Asset Sale, the Company shall apply, or cause such
Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365
days of receipt thereof (provided that if the Company or such Restricted
Subsidiary, as the case may be, has entered into an agreement in definitive form to so
apply such Net Cash Proceeds, the transaction contemplated by such agreement must be
consummated within the later of such 365 day period and 120 days from the date of the
execution of such agreement) either:




     (a) to repay any Obligations under the Credit Agreements or any Guarantor
Senior Debt and, in the case of any such Indebtedness under a revolving









 



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credit
facility, effect a permanent reduction in the availability under such revolving
credit facility;




     (b) to make an investment in properties and assets that replace the properties
and assets that were the subject of such Asset Sale or in properties and assets
(including Capital Stock) that will be used in the business of the Company and its
Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably
related thereto (“Replacement Assets”) and to the extent that the assets
that were the subject of such Asset Sale constituted Collateral such Replacement
Assets shall also be required to constitute Collateral; and/or




     (c) a combination of repayment and investment permitted by the foregoing
clauses (3)(a) and (3)(b).



          (B) Pending the final application of such Net Cash Proceeds, the Company may temporarily
reduce borrowings under the Credit Agreements or any other revolving credit facility, if any. On
the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the
Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to
such Asset Sale as set forth in clauses (3)(a), (3)(b) and (3)(c) of paragraph (A) above, or, in
the event that a definitive agreement has been entered into prior to such 366th day pursuant to
which the Net Cash Proceeds are to be applied, on the later of the 366th day and the 121st day
after the execution of such agreement (each, a “Net Proceeds Offer Trigger Date”), such
aggregate amount of Net Cash Proceeds which have not been applied on or before such Net Proceeds
Offer Trigger Date as permitted in clauses (3)(a), (3)(b) and (3)(c) of the preceding paragraph
(each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted
Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) to all Holders and (x) in the
case of Net Cash Proceeds which are received as a result of an Asset Sale of Collateral, to the
extent required pursuant to the documentation governing any Pari Passu Junior Lien Obligations, an
offer to purchase to the holders of such Pari Passu Junior Lien Obligations and (y) in the case of
Net Cash Proceeds which are not received as a result of an Asset Sale of Collateral, to the extent
required by the terms of any Pari Passu Debt, an offer to purchase to all holders of such Pari
Passu Debt, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more
than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and, if
applicable, holders of any such Pari Passu Junior Lien Obligations or Pari Passu Debt) on a pro
rata basis, that amount of Notes (and, if applicable, Pari Passu Junior Lien Obligations or Pari
Passu Debt) equal to the Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the Notes (and, if applicable, Pari Passu Junior Lien Obligations or Pari Passu
Debt) to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase.




          (C) If at any time any non-cash consideration received by the Company or any Restricted
Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into
or sold or otherwise disposed of for cash (other than interest received with respect










 



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to any such
non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset
Sale hereunder as of the date of such conversion or disposition and the Net Cash Proceeds thereof
shall be applied in accordance with this Section 4.10.




          (D) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net
Proceeds Offer Amount equal to or in excess of $15.0 million resulting from one or more Asset Sales
(at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess
of $15.0 million, shall be applied as required pursuant to this Section 4.10).




          (E) In the event of the transfer of substantially all (but not all) of the property and assets
of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction
permitted under Section 5.1, which transaction does not constitute a Change of Control, the
successor corporation shall be deemed to have sold the properties and assets of the Company and its
Restricted Subsidiaries not so transferred for purposes of this covenant, and shall comply with the
provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In
addition, the fair market value of such properties and assets of the Company or its Restricted
Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section
4.10.




          (F) If any Net Cash Proceeds remain after the consummation of any Net Proceeds Offer, the
Company may use such Net Cash Proceeds for any purpose not otherwise prohibited by this Indenture
without regard to this Section 4.10. Upon completion of each Net Proceeds Offer, the Net Proceeds
Offer Amount will be reset at zero.




          (G) In the event the Company or any of its Restricted Subsidiaries consummate a single Asset
Sale for which the Company or its Restricted Subsidiaries receive aggregate consideration at the
time of such Asset Sale in excess of $100.0 million, the Company or such Restricted Subsidiary, as
the case may be, shall, prior to the consummation thereof, obtain a favorable opinion as to the
fairness of such Asset Sale to the Company or the relevant Restricted Subsidiary, as the case may
be, from a financial point of view, from an Independent Financial Advisor and file the same with
the Trustee.




          (H) Notwithstanding paragraphs (A) and (B) of this Section 4.10, the Company and its
Restricted Subsidiaries will be permitted to enter into and consummate an Asset Swap without
complying with such paragraphs to the extent that:





     (1) at the time of entering into such Asset Swap or immediately after giving effect to
such Asset Swap, no Default or Event of Default shall have occurred or be continuing or
would occur as a consequence thereof;




     (2) in the case of any Asset Swap of Collateral, the assets received by the Company and
its Restricted Subsidiaries constitute Collateral; and









 



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     (3) in the event that such Asset Swap involves an aggregate amount in excess of $10.0
million, a majority of the members of the Board of Directors of the Company shall have
approved the terms of such Asset Swap and determined that the consideration received in such
Asset Swap is at least equal to the fair market value of the assets disposed of in such
Asset Swap.



          (I) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of notes pursuant to a Net Proceeds Offer. To the
extent that the provisions of any securities laws or regulations conflict with this Section 4.10,
the Company shall comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.10 by virtue thereof.




Section 4.11. Limitations on Transactions with Affiliates.




          The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, enter into or permit to exist any transaction or series of related transactions
(including, without limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its Affiliates (each an
“Affiliate Transaction”), other than (x) Affiliate Transactions permitted under the third
paragraph below or (y) Affiliate Transactions on terms that are no less favorable than those that
might reasonably have been obtained in a comparable transaction at such time on an arm’s-length
basis from a Person that is not an Affiliate of the Company or such Restricted Subsidiary.




          All Affiliate Transactions (and each series of related Affiliate Transactions which are
similar or part of a common plan) involving aggregate payments with a fair market value in excess
of $7.5 million shall be approved by the Board of Directors of the Company or such Restricted
Subsidiary, as the case may be, such approval to be evidenced by a Board Resolution stating that
such Board of Directors has determined that such transaction complies with the foregoing
provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate
Transaction (or a series of related Affiliate Transactions related to a common plan) that involves
an aggregate fair market value of more than $20.0 million, the Company or such Restricted
Subsidiary, as the case may be, shall, prior to the consummation thereof, obtain a favorable
opinion as to the fairness of such transaction or series of related transactions to the Company
or the relevant Restricted Subsidiary, as the case may be, from a financial point of
view, from an Independent Financial Advisor and file the same with the Trustee.




          The restrictions set forth in this Section 4.11 shall not apply to:





     (1) reasonable fees and compensation paid to and indemnity provided on behalf of,
officers, directors, employees or consultants of the Company or any Restricted Subsidiary of
the Company as determined in good faith by the Company’s Board of Directors or senior
management;









 



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     (2) transactions exclusively between or among the Company and any of its Restricted
Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided
such transactions are not otherwise prohibited by this Indenture;




     (3) any agreement, or any arrangement the terms of which have been disclosed prior to
the Issue Date in the Offering Memorandum, as in effect as of the Issue Date or any
amendment or replacement agreement thereto or any transaction contemplated thereby
(including pursuant to any amendment or replacement agreement thereto) so long as any such
amendment or replacement agreement taken as a whole is not materially more disadvantageous
to the Holders than the original agreement as in effect on the Issue Date;




     (4) payments and Investments permitted by this Indenture;




     (5) any issuance of securities, or other payments, awards or grants in cash, securities
or otherwise (other than issuances, payments, awards or grants to David H. Murdock)
pursuant to, or the funding of, employment arrangements, employee stock options and employee
stock ownership plans approved by the applicable Board of Directors;




     (6) loans or advances to employees in the ordinary course of business of the Company or
any of its Restricted Subsidiaries consistent with past practice;




     (7) transactions with customers, clients, vendors, suppliers or other purchasers or
sellers of goods or services, in each case in the ordinary course of business (including,
without limitation, pursuant to joint venture agreements) and otherwise in compliance with
the terms of this Indenture;




     (8) any transaction on arm’s-length terms with any non-Affiliate that becomes an
Affiliate as a result of such transaction;




     (9) purchases and sales of product and raw materials, insurance arrangements and
payments, all of the foregoing in the ordinary course of business consistent with past
practice or as may be necessary to accommodate legal, regulatory or other changes in the
business of the Company and its Restricted Subsidiaries;




     (10) employment agreements and similar arrangements with employees and independent
contractors other than David H. Murdock;




     (11) the issuance and sale of Qualified Capital Stock; and




     (12) payments made pursuant to the following conditions: if the Company is to file
consolidated federal income tax returns with Holdings or combined or unitary state income
tax returns with Holdings, the Company may enter into a tax sharing agreement with Holdings
and may pay to Holdings amounts when due and payable pursuant to such









 



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tax sharing agreement
in respect of amounts of tax due with respect to such consolidated, combined or unitary
returns and any additional taxes due from time to time as a result of any audit thereof, as
the case may be, in each case in an amount not to exceed the amount of tax that the Company
would have been obligated to pay to the appropriate taxing authority if the Company and its
Subsidiaries had filed a hypothetical separate consolidated, combined or unitary return for
the then current year and all prior years ending after the Issue Date.



Section 4.12. Limitation on Liens.




          The Company will not, and will not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, assume or permit or suffer to exist any Liens (other than
Permitted Liens) of any kind against or upon any property or assets of the Company or any of its
Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, or any
proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom.




Section 4.13. Continued Existence.




          Subject to Article V hereof, each of the Company and the Guarantors shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its corporate or other
existence in accordance with the organizational documents (as the same may be amended from time to
time) of the Company or such Guarantor and (ii) the material rights (charter and statutory),
licenses and franchises of the Company or such Guarantor, except to the extent that the applicable
Board of Directors determines in good faith that the preservation of such right, license or
franchise is no longer necessary or desirable in the conduct of the business of the Company or such
Guarantor and that the loss thereof is not disadvantageous in any material respect to the Holders.




Section 4.14. Insurance Matters.




          The Company shall provide or cause to be provided, for itself and each of its Subsidiaries,
insurance (including appropriate self-insurance) against loss or damage of the kinds that, in the
reasonable, good faith opinion of the Company, are adequate and appropriate for the
conduct of the business of the Company and its Subsidiaries in a prudent manner, with
reputable insurers or with the government of the United States of America or an agency or
instrumentality thereof, in such amounts, with such deductibles, and by such methods as shall be
either (i) consistent with past practices of the Company or the applicable Subsidiary or (ii)
customary, in the reasonable, good faith opinion of the Company, for corporations similarly
situated in the industry, unless the failure to provide such insurance (together with all other
such failures) would not have a material adverse effect on the financial condition or results of
operations of the Company and its Subsidiaries, taken as a whole.
















 





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Section 4.15. Offer to Repurchase upon Change of Control.




          Upon the occurrence of a Change of Control, each Holder of Notes shall have the right to
require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof)
of such Holder’s Notes (a “Change of Control Offer”) at a Purchase Price in cash equal to
101% of the aggregate principal amount thereof, together with accrued and unpaid interest and
Additional Interest, if any, thereon to the Purchase Date. The Change of Control Offer shall be
made in compliance with the applicable procedures set forth in Article III hereof and shall include
all instructions and materials necessary to enable Holders to tender their Notes.




          The Company will not be required to make a Change of Control Offer upon a Change of Control if
a third party makes the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Indenture applicable to a Change of Control
Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such
Change of Control Offer.




          The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations to the extent such laws and regulations are applicable in
connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with this Section 4.15, the Company
shall comply with the applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.15 by virtue hereof.



Section 4.16. Additional Subsidiary Guarantees.




          If the Company or any of its Restricted Subsidiaries transfers or causes to be transferred, in
one transaction or a series of related transactions, any property to any Domestic Restricted
Subsidiary that is a Wholly Owned Restricted Subsidiary and that is not a Guarantor, or if the
Company or any of its Restricted Subsidiaries shall organize, acquire or otherwise invest in
another Domestic Restricted Subsidiary that is a Wholly Owned Restricted Subsidiary, in either
case, after giving effect to such transfer or other such event, having total assets with a book
value in excess of $2.5 million, then such transferee or acquired or other Restricted Subsidiary
shall, within 15 Business Days of such organization, acquisition or investment:





     (1) execute and deliver to the Trustee a supplemental indenture in form reasonably
satisfactory to the Trustee pursuant to which such Restricted Subsidiary shall
unconditionally guarantee on a senior subordinated basis all of the Company’s obligations
under the Notes and this Indenture on the terms set forth in this Indenture
(provided that such Guarantee shall be limited as necessary to prevent such
Guarantee from constituting a fraudulent conveyance or fraudulent transfer under applicable
law);




     (2) execute and deliver to the Trustee supplements to the Security Documents or new
Security Documents to the extent necessary to grant a security interest to the Collateral
Agent in the Collateral of such Restricted Subsidiary and take all actions necessary









 



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to perfect the Liens created by such Security Documents in accordance with their terms;
and




     (3) deliver to the Trustee an opinion of counsel that such supplemental indenture and
such Security Documents have been duly authorized, executed and delivered by such Restricted
Subsidiary and constitute legal, valid, binding and enforceable obligations of such
Restricted Subsidiary. Thereafter, such Restricted Subsidiary shall be a Guarantor for all
purposes of this Indenture (until released from its Guarantee in accordance with the terms
of this Indenture).


Section 4.17. Conduct of Business.




          The Company and its Restricted Subsidiaries will not engage in any businesses which are not
the same, similar, ancillary or reasonably related to the businesses in which the Company and its
Restricted Subsidiaries are currently engaged on the Issue Date or which are contemplated in the
Offering Memorandum except to such extent as is not material to the Company and its Restricted
Subsidiaries taken as a whole, or with respect to businesses acquired by the Company or its
Restricted Subsidiaries that are intended to be disposed of within a reasonable time after the
acquisition thereof.



Section 4.18. Payments for Consent.




          The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes
for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of
this Indenture, the Security Documents or the Notes unless such consideration is offered to be paid
and is paid to all Holders of the Notes that consent, waive or agree to amend in the time frame set
forth in the solicitation documents relating to such consent, waiver or agreement.



Section 4.19. Limitation on Issuance of Preferred Stock of Restricted Subsidiaries.




          The Company will not permit any of its Restricted Subsidiaries that are not Guarantors to
issue any Preferred Stock (other than to the Company or to a Wholly Owned Restricted Subsidiary of
the Company) or permit any Person (other than the Company or a Wholly Owned Restricted Subsidiary
of the Company) to own any Preferred Stock of any Restricted Subsidiary of the Company that is not
a Guarantor.



Section 4.20. Prohibition on Incurrence of Senior Subordinated Guarantees.



          The Company will not permit any Restricted Subsidiary that is a Guarantor to incur or suffer
to exist Indebtedness that is senior in right of payment to such Guarantor’s Guarantee and
subordinate in right of payment to any other Indebtedness of such Guarantor.










 



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Section 4.21. Limitation of Guarantees by Restricted Subsidiaries.




          The Company will not permit any of its Restricted Subsidiaries that is not a Guarantor,
directly or indirectly, by way of the pledge of any intercompany note or otherwise, to assume,
guarantee or in any other manner become liable with respect to any Indebtedness of the Company or
any other Restricted Subsidiary of the Company (other than: (1) in the case of a Foreign
Restricted Subsidiary, Indebtedness or other obligations under the Credit Agreements; (2) Permitted
Indebtedness of a Restricted Subsidiary of the Company; (3) Indebtedness under Currency Agreements
in reliance on clause (5) of the definition of Permitted Indebtedness; or (4) Interest Swap
Obligations incurred in reliance on clause (4) of the definition of Permitted Indebtedness),
unless, in any such case, such Restricted Subsidiary executes and delivers (i) a supplemental
indenture to this Indenture, providing a senior subordinated guarantee of payment of the Notes by
such Restricted Subsidiary and (ii) supplements to the Security Documents to the extent necessary
to grant a security interest to the Collateral Agent in the Collateral of such Restricted
Subsidiary. Notwithstanding the foregoing, any such Guarantee by a Restricted Subsidiary of the
Notes and any Security Documents to which such Restricted Subsidiary is party shall provide by
their terms that they shall be automatically and unconditionally released and discharged, without
any further action required on the part of the Trustee, the Collateral Agent or any Holder, upon:
the unconditional release of such Restricted Subsidiary from its liability in respect of the
Indebtedness in connection with which such Guarantee was executed and delivered pursuant to this
paragraph; if the Company designates any Restricted Subsidiary that is a Guarantor to be an
Unrestricted Subsidiary in accordance with the applicable provisions of this Indenture; or any sale
or other disposition (by merger or otherwise) to any Person which is not a Restricted Subsidiary of
the Company of all of the Company’s Capital Stock in, or all of the assets of, such Restricted
Subsidiary; provided that (a) such sale or disposition of such Capital Stock or assets is
otherwise in compliance with the terms of this Indenture and (b) such assumption, guarantee or
other liability of such Restricted Subsidiary has been released by the holders of the other
Indebtedness so guaranteed.



Section 4.22. [Intentionally Omitted.]



Section 4.23. [Intentionally Omitted.]



Section 4.24. Events of Loss.




          (A) If an Event of Loss occurs, the Company shall apply, or cause the affected Restricted
Subsidiary to apply, the Net Cash Proceeds relating to such Event of Loss within 365 days of
receipt thereof (provided that if the Company or such Restricted Subsidiary, as the case
may be, has entered into an agreement in definitive form to so apply such Net Cash Proceeds, the
transaction contemplated by such agreement must be consummated within the later of such 365 day
period and 120 days from the date of the execution of such agreement) either:










 



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     (1) to repay any Obligations under the Credit Agreements or any Guarantor Senior Debt
and, in the case of any such Indebtedness under a revolving credit facility, effect a
permanent reduction in the availability under such revolving credit facility;




     (2) to make an investment in properties and assets that replace the properties and
assets that were the subject of such Event of Loss or in properties and assets (including
Capital Stock) that will be used in the business of the Company and its Restricted
Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto
(“Reinvestment Assets”) and to the extent that the assets that were the subject of
such Event of Loss constituted Collateral such Reinvestment Assets shall also be required to
constitute Collateral; and/or




     (3) a combination of repayment and investment permitted by the foregoing clauses (1)
and (2).



          (B) Pending the final application of such Net Cash Proceeds, the Company may temporarily
reduce borrowings under the Credit Agreements or any other revolving credit facility, if any. On
the 366th day after an Event of Loss or such earlier date, if any, as the Board of Directors of the
Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to
such Event of Loss as set forth in clauses (1), (2) and (3) of the preceding paragraph, or, in the
event that a definitive agreement has been entered into prior to such 366th day pursuant to which
the Net Cash Proceeds are to be applied, on the later of the 366th day and the 121st day after the
execution of such agreement (each, an “Event of Loss Offer Trigger Date”), such aggregate
amount of Net Cash Proceeds which have not been applied on or before such Event of Loss Offer
Trigger Date as permitted in clauses (1), (2) and (3) of the preceding paragraph (each an
“Event of Loss Offer Amount”) shall be applied by the Company or such Restricted Subsidiary
to make an offer to purchase (the “Event of Loss Offer”) to all Holders and, to the extent
required pursuant to the documentation governing any Pari Passu Junior Lien Obligations, an offer
to purchase to the holders of such Pari Passu Junior Lien Obligations, on a date (the “Event of
Loss Offer Payment Date”) not less than 30 nor more than 60 days following the applicable Event
of Loss Offer Trigger Date, from all Holders and, if applicable, to the holders of Pari Passu
Junior Lien Obligations equal to the Event of Loss Offer Amount at a price equal to 100% of the
principal amount of the notes and, if applicable, to 100% of the principal amount of the Pari Passu
Junior Lien Obligations to be purchased, plus accrued and unpaid interest thereon, if any, to the
date of purchase.




          (C) The Company may defer the Event of Loss Offer until there is an aggregate unutilized Event
of Loss Offer Amount equal to or in excess of $15.0 million resulting from one or more Events of
Loss (at which time, the entire unutilized Event of Loss Offer Amount, and not just the amount in
excess of $15.0 million, shall be applied as required pursuant to this Section).




          (D) If any Net Cash Proceeds remain after the consummation of any Event of Loss Offer, the
Company may use those Net Cash Proceeds for any purpose not otherwise prohi-









 



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bited by this Indenture
without regard to Section 4.24. Upon completion of each Event of Loss Offer, the Event of Loss
Offer Amount will be reset at zero.




          (E) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of notes pursuant to an Event of Loss Offer. To the
extent that the provisions of any securities laws or regulations conflict with this Section 4.24
the Company shall comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.24 by virtue thereof.



Section 4.25. Further Assurances.




          The Company will, and will cause each of its existing and future Restricted Subsidiaries to,
execute and deliver such additional instruments, certificates or documents, and take all such
actions as, in the good faith opinion of the Company, may be reasonably required from time to time
in order to:





     (1) carry out more effectively the purposes of the Security Documents;




     (2) maintain the validity, effectiveness and priority of any of the Security Documents
and the Liens created, or intended to be created, by the Security Documents; and




     (3) ensure the protection and enforcement of any of the rights granted or intended to
be granted to the Collateral Agent under any other instrument executed in connection
herewith.



ARTICLE V.




SUCCESSORS



Section 5.1. Merger, Consolidation and Sale of Assets.




          The Company will not, in a single transaction or series of related transactions, consolidate
or merge with or into any Person, or sell, assign, transfer, lease, convey or otherwise dispose of
(or cause or permit any Restricted Subsidiary of the Company to sell, assign, transfer, lease,
convey or otherwise dispose of) all or substantially all of the Company’s assets (determined on a
consolidated basis for the Company and the Company’s Restricted Subsidiaries) whether as an
entirety or substantially as an entirety to any Person unless:





     (1) either:




     (a) the Company shall be the surviving or continuing corporation; or









 



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     (b) the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person which acquires by sale, assignment,
transfer, lease, conveyance or other disposition the properties and assets of the
Company and of the Company’s Restricted Subsidiaries substantially as an entirety
(the “Surviving Entity”):




     (x) shall be a corporation organized and validly existing under the
laws of the United States or any State thereof or the District of Columbia;




     (y) shall expressly assume, by supplemental indenture (in form and
substance reasonably satisfactory to the Trustee), executed and delivered to
the Trustee, the due and punctual payment of the principal of, and premium,
if any, and interest on all of the Notes and the performance of every
covenant of the Notes, this Indenture and the Registration Rights Agreement
on the part of the Company to be performed or observed; and




     (z) shall expressly assume by supplements to the applicable Security
Documents (in form and substance reasonably satisfactory to the Trustee),
executed and delivered to the Trustee, all obligations of the Company under
the Security Documents and shall take all actions as may be required to
cause the Liens in favor of the Collateral Agent as was applicable
immediately prior to such transaction;




     (2) immediately after giving effect to such transaction and the assumptions
contemplated by clause (1)(b) above (including giving effect to any Indebtedness and
Acquired Indebtedness incurred or anticipated to be incurred in connection with or in
respect of such transaction), the Company or such Surviving Entity, as the case may be, (a)
shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of
the Company immediately prior to such transaction and (b) shall be able to incur at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to paragraph
(a) of Section 4.9;




     (3) immediately before and immediately after giving effect to such transaction and the
assumptions contemplated by clause (1)(b) above (including, without limitation, giving
effect to any Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred
and any Lien granted in connection with or in respect of the transaction), no Default or
Event of Default shall have occurred or be continuing; and




     (4) the Company or the Surviving Entity shall have delivered to the Trustee an
officers’ certificate and an opinion of counsel, each stating that such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other disposition and, if a
supplemental indenture is required in connection with such transaction, such supplemental
in-









 



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denture comply with the applicable provisions of this Indenture and that all conditions
precedent in this Indenture relating to such transaction have been satisfied.



          For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a
single transaction or series of transactions) of all or substantially all of the properties or
assets of one or more Restricted Subsidiaries of the Company the Capital Stock of which constitutes
all or substantially all of the properties and assets of the Company, shall be deemed to be the
transfer of all or substantially all of the properties and assets of the Company.




          Notwithstanding clauses (2) and (3) of the first paragraph of this Section 5.1, the Company
may merge with an Affiliate that is a Person that has no material assets or liabilities and which
was organized solely for the purpose of reorganizing the Company in another jurisdiction.




          Each Guarantor (other than any Guarantor whose Guarantee is to be released in accordance with
the terms of the Guarantee and this Indenture in connection with any transaction complying with the
provisions of Section 4.10) will not, and the Company will not cause or permit any Guarantor to,
consolidate with or merge with or into any Person other than the Company or any other Guarantor
unless:





     (1) the entity formed by or surviving any such consolidation or merger (if other than
the Guarantor) or to which such sale, lease, conveyance or other disposition shall have been
made is a corporation organized and existing under the laws of the United States or any
State thereof or the District of Columbia;




     (2) such entity assumes by supplemental indenture all of the obligations of the
Guarantor on the Guarantee, this Indenture and the Registration Rights Agreement;




     (3) such entity shall expressly assume by supplements to the applicable Security
Documents (in form and substance reasonably satisfactory to the Trustee), executed and
delivered to the Trustee, all obligations of the Guarantor under the Security Documents and
shall take all actions as may be required to cause the Liens in favor of the Collateral
Agent to continue with the same priority as was applicable immediately prior to such
transaction;




     (4) immediately after giving effect to such transaction, no Default or Event of Default
shall have occurred and be continuing; and




     (5) immediately after giving effect to such transaction and the use of any net proceeds
therefrom on a pro forma basis, the Company could satisfy the provisions of clause (2) of
the first paragraph of this Section.



          Any merger or consolidation of a Restricted Subsidiary with and into the Company (with the
Company being the Surviving Entity) or another Guarantor need only comply with








 



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clauses (1)(b)(z) and (4) of the first paragraph, or clauses (1) and (3) of the fifth paragraph, as the case may be,
of this Section 5.1.



Section 5.2. Successor Corporation Substituted.




          Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all
or substantially all of the assets of the Company in accordance with Section 5.1 hereof, the
Surviving Entity shall succeed to and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such Surviving Entity had been
named as the Company herein; provided, however, that the predecessor Company shall
not be relieved from the obligation to pay the principal, Purchase Price or Redemption Price of or
interest or Additional Interest, if any, on the Notes except in the case of a sale of all of the
Company’s assets that meets the requirements of Section 5.1 hereof.




ARTICLE VI.




DEFAULTS AND REMEDIES



Section 6.1. Events of Default.




          Each of the following constitutes an “Event of Default”:




          (a) the failure to pay interest on any Notes when the same becomes due and payable and the
default continues for a period of 30 days (whether or not such payment shall be prohibited by
Article X of this Indenture);




          (b) the failure to pay the principal of any Notes when such principal becomes due and
payable, at maturity, upon redemption or otherwise (including the failure to make a payment to
purchase Notes tendered pursuant to a Change of Control Offer or a Net Proceeds Offer) (whether
or not such payment shall be prohibited by Article X of this Indenture);




          (c) a default in the observance or performance of any other covenant or agreement contained
in this Indenture or the Security Documents which default continues for a period of 45 days after
the Company receives written notice specifying the default (and demanding that such default be
remedied) from the Trustee or the Holders of at least 25% of the outstanding principal amount of
the Notes (except in the case of a default with respect to Section 5.1 hereof, which will constitute an Event of Default with such notice requirement but
without such passage of time requirement);




          (d) the failure to pay at final maturity (giving effect to any applicable grace periods and
any extensions thereof) the stated principal amount of any Indebtedness of the Company or any
Restricted Subsidiary of the Company, or the acceleration of the final stated maturity of any
such Indebtedness (which acceleration is not rescinded, annulled or otherwise









 



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cured within 30
days of receipt by the Company or such Restricted Subsidiary of notice of any such acceleration)
if the aggregate principal amount of such Indebtedness, together with the principal amount of any
other such Indebtedness in default for failure to pay principal at final stated maturity or which
has been accelerated (in each case with respect to which the 30-day period described above has
elapsed), aggregates $25.0 million or more at any time; provided that if such failure to
pay shall be remedied, waived or extended within 30 days of receipt by the Company or such
Restricted Subsidiary of notice of such acceleration, then any Default or Event of Default
hereunder shall be deemed likewise to be remedied, waived or extended without further action by
the Company;




          (e) one or more judgments in an aggregate amount in excess of $25.0 million shall have been
rendered against the Company or any of its Restricted Subsidiaries and such judgments remain
undischarged, unpaid or unstayed for a period of 60 days after such judgment or judgments become
final and non-appealable; provided, however, that the rendering of any such
judgment(s) shall not be an Event of Default under this clause (e) unless (i) the Company and its
Restricted Subsidiaries which are subject to the order, as of the date of the issuance of such
judgment(s), have at least $25.0 million in net assets located in such court’s jurisdiction or
(ii) a final and non-appealable order enforcing such judgment(s) is entered by a court of
competent jurisdiction in a jurisdiction where the Company and its Restricted Subsidiaries
subject to the order, as of the date of the entry of such order of enforcement, have at least
$25.0 million in net assets located in such jurisdiction;




          (f) the Company or any Significant Subsidiary of the Company:





     (i) commences a voluntary case under any Bankruptcy Law,




     (ii) consents to the entry of an order for relief against it in an involuntary
case,




     (iii) consents to the appointment of a custodian or receiver of it or for all
or substantially all of its property,




     (iv) makes a general assignment for the benefit of its creditors,




     (v) consents to or acquiesces in the institution of a bankruptcy or an
insolvency proceeding against it, or




     (vi) takes any corporate action to authorize or effect any of the foregoing;









 



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          (g) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:





     (i) is for relief in an involuntary case against the Company or any Significant
Subsidiary of the Company;




     (ii) appoints a custodian or receiver of the Company or any Significant
Subsidiary or for all or substantially all of the property of any of the foregoing;




     (iii) orders the liquidation of the Company or any of its Significant
Subsidiaries;



     and the order or decree remains unstayed and in effect for 60 days; or



          (h) any Guarantee of a Significant Subsidiary ceases to be in full force and effect or any
Guarantee of a Significant Subsidiary is declared to be null and void and unenforceable or any
Guarantee of a Significant Subsidiary is found to be invalid or any Guarantor that is a
Significant Subsidiary denies in writing its liability under its Guarantee (other than by reason
of release of such Guarantor in accordance with the terms of this Indenture) or the Company or
any Guarantor that is a Significant Subsidiary denies in writing the validity of the Liens
created pursuant to the Security Documents (other than by reason of a release of such Liens in
accordance with the terms of this Indenture or the Security Documents);




          (i) any Lien purported to be created by any Security Document shall cease to be a valid and
enforceable Lien except in accordance with the Security Documents and this Indenture and such
failure continues for a period of 45 days after the Company receives written notice specifying
the failure (and demanding that such failure be remedied) from the Trustee or the Holders of at
least 25% of the outstanding principal amount of the Notes.



Section 6.2. Acceleration.




          If any Event of Default (other than an Event of Default specified in clause (f) or (g) of
Section 6.1 hereof with respect to the Company) shall occur and be continuing, the Trustee or the
Holders of at least 25% in principal amount of outstanding Notes by written notice to the Company
(and the Trustee, if such notice is given by such Holders) may declare the principal of and accrued
and unpaid interest on all the Notes to be due and payable immediately, which notice shall specify
the respective Events of Default and that it is a “notice of acceleration” (the “Acceleration
Notice”), and upon proper delivery of the Acceleration Notice, the entire principal amount of
and accrued and unpaid interest and Additional Interest, if any, on the Notes (1) shall become
immediately due and payable, or (2) if there are any amounts outstanding under either Credit
Agreement, shall become immediately due and payable upon the first to occur of an acceleration under such Credit Agreement or 5 Business Days after receipt by the Company and the
Representative under such Credit Agreement of such Acceleration Notice but only if such Event of
Default is then continuing.










 



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          Notwithstanding the foregoing, if an Event of Default specified in clause (f) or (g) of
Section 6.1 hereof with respect to the Company occurs and is continuing, then all unpaid principal
of, and premium, if any, and accrued and unpaid interest on all of the outstanding Notes shall ipso
facto become and be immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.




          At any time after a declaration of acceleration with respect to the Notes as described in the
preceding paragraph, the Holders of not less than a majority in aggregate principal amount of the
then outstanding Notes by written notice to the Company and the Trustee may, on behalf of the
Holders of all of the Notes, rescind and cancel an acceleration and its consequences:





     (1) if the rescission would not conflict with any judgment or decree;




     (2) if all existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of the acceleration;




     (3) if, to the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid;




     (4) if the Company has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its expenses, disbursements and advances; and




     (5) in the event of the cure or waiver of an Event of Default of the type described in
clause (f) or (g) of Section 6.1 hereof, if the Trustee shall have received an Officers’
Certificate and an Opinion of Counsel that such Event of Default has been cured or waived.



          No such rescission shall affect any subsequent Default or impair any right consequent thereto.



Section 6.3. Other Remedies.




          If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, premium, if any, interest or Additional Interest, if any, on
the Notes or to enforce the performance of any provision of the Notes, this Indenture or the
Security Documents.




          The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding, and any recovery or judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of the Holders of the Notes. A delay or omission by
the Trustee or any Holder in exercising any right or remedy ac-









 



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cruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default.
All remedies are cumulative to the extent permitted by law.



Section 6.4. Waiver of Past Defaults.




          The Holders of a majority in principal amount of the Notes may waive any existing Default or
Event of Default under this Indenture, and its consequences, except a default in the payment of the
principal of or interest on any Notes. Upon any such waiver, such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of
this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any
right consequent thereon.



Section 6.5. Control by Majority.




          Subject to the terms of the Security Documents, Holders of a majority in principal amount of
the then outstanding Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power conferred on it.
However, the Trustee may refuse to follow any direction that conflicts with applicable law or this
Indenture that the Trustee reasonably determines may be unduly prejudicial to the rights of other
Holders of Notes or that may subject the Trustee to personal liability and shall be entitled to the
benefit of Sections 7.1(c)(iii) and (e) hereof.



Section 6.6. Limitation on Suits.




          A Holder of a Note may pursue a remedy with respect to this Indenture or the Notes only if:




          (a) the Holder of a Note gives to the Trustee written notice of a continuing Event of
Default;




          (b) the Holders of at least 25% in principal amount of the then outstanding Notes make a
written request to the Trustee to pursue the remedy;




          (c) such Holder or Holders of Notes offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense;




          (d) the Trustee does not comply with the request within 60 days after receipt of the request
and the offer and, if requested, the provision of indemnity; and




          (e) during such 60-day period the Holders of a majority in principal amount of the then
outstanding Notes do not give the Trustee a direction inconsistent with the request.



A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a Note
or to obtain a preference or priority over another Holder of a Note.










 



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Section 6.7. Rights of Holders of Notes To Receive Payment.




          Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal of or premium, if any, interest or Additional Interest, if any, on the
Note, on or after the respective due dates thereon (including in connection with an offer to
repurchase), or to bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the written consent of such Holder.



Section 6.8. Collection Suit by Trustee.




          If an Event of Default specified in Section 6.l(a) or (b) occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of, premium and Additional Interest, if any,
and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent
lawful, interest and Additional Interest, if any, and such further amounts as shall be sufficient
to cover the costs and expenses of collection, including the reasonable compensation, expense,
disbursements and advances of the Trustee, its agents and counsel.



Section 6.9. Notice.




          The Company shall provide an Officers’ Certificate to the Trustee promptly upon any such
Officer obtaining knowledge of any Default or Event of Default (provided that such Officers
shall provide such certification at least annually whether or not such Officers know of any Default
or Event of Default) that has occurred and, if applicable, describe such Default or Event of
Default and the status thereof.



Section 6.10. Trustee May File Proofs of Claim.




          The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee), its agents
(including accountants, experts or such other processionals as the Trustee deems necessary,
advisable or appropriate) and counsel and the Holders of the Notes allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims, and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.7 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 7.7 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a lien on, and shall be paid out









 



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of, any and all distributions, dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan of reorganization
or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.



Section 6.11. Priorities.




          Subject to the terms of the Intercreditor Agreement and the Security Documents, if the Trustee
collects any money pursuant to this Article or from the Collateral Agent pursuant to any Security
Document, it shall pay out the money in the following order:





     First: to the Trustee, its agents and attorneys for amounts due under Section 7.7
hereof, including payment of all compensation, expense and liabilities incurred, and all
advances made, by the Trustee and the costs and expenses of collection;




     Second: to Holders of Notes for amounts due and unpaid on the Notes for principal,
Purchase Price, Redemption Price and Additional Interest, if any, and interest, ratably,
without preference or priority of any kind, according to the amounts due and payable on the
Notes for principal, Purchase Price, Redemption Price and Additional Interest, if any, and
interest, respectively; and




     Third: to the Company, the Guarantors or to such party as a court of competent
jurisdiction shall direct.


The Trustee may fix a special record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.11.



Section 6.12. Undertaking for Costs.




          In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant. This Section does not apply to a suit by
the Trustee, a suit by a Holder pursuant to Section 6.7 hereof, or a suit by Holders of more than
10% in principal amount of the then outstanding Notes.










 



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Section 6.13. Appointment and Authorization of U.S. Bank National Association as Collateral Agent.




          (a) U.S. Bank National Association is hereby designated and appointed as the Collateral
Agent of the Holders under the Security Documents, and is authorized as the Collateral Agent for
such Holders to execute and enter into each of the Security Documents and all other instruments
relating to the Security Documents and (i) to take action and exercise such powers as are
expressly required or permitted hereunder and under the Security Documents and all instruments
relating hereto and thereto and (ii) to exercise such powers and perform such duties as are in
each case, expressly delegated to the Collateral Agent by the terms hereof and thereof together
with such other powers as are reasonably incidental hereto and thereto.




          (b) Notwithstanding any provision to the contrary elsewhere in this Indenture or the
Security Documents, the Collateral Agent shall not have any duties or responsibilities except
those expressly set forth herein or therein or any fiduciary relationship with any Holder, and no
implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read
into this Indenture or any Security Document or otherwise exist against the Collateral Agent.




          (c) The Collateral Agent may consult with counsel of its selection and the advice or opinion
of such counsel as to matters of law shall be full and complete authorization and protection from
liability in respect of any action taken, omitted or suffered by it hereunder or under the
Security Documents in good faith and in accordance with the advice or opinion of such counsel.




ARTICLE VII.




TRUSTEE



Section 7.1. Duties of Trustee.




          (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use the same degree of care and
skill in its exercise thereof, as a prudent person would exercise or use under the circumstances
in the conduct of such person’s own affairs.




          (b) Except during the continuance of an Event of Default:





     (i) the duties of the Trustee shall be determined solely by the express provisions of
this Indenture and the TIA and the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture or the TIA against the Trustee; and









 



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     (ii) in the absence of bad faith on its part, the Trustee may conclusively rely,
without investigation, as to the truth or the statements and the correctness of the opinions
expressed therein, upon and statements, certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture.


However, the Trustee shall examine the certificates and opinions to determine whether or not they
conform on their face to the requirements of this Indenture.




          (c) The Trustee may not be relieved from liabilities for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:





     (i) this paragraph does not limit the effect of paragraph (b) of this Section;




     (ii) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and




     (iii) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.5
hereof.



          (d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to this Section 7.1.




          (e) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or incur any liability. The Trustee shall be under no obligation to exercise any of its rights
and powers under this Indenture at the request of any Holders, pursuant to the provisions of this
Indenture, including, without limitation, Section 6.5 hereof, unless such Holder shall have
offered to the Trustee security and indemnity satisfactory to it against any loss, liability or
expense which might be incurred by it in compliance with such request or direction.




          (f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.



Section 7.2. Rights of Trustee.




          (a) The Trustee may conclusively rely and shall be protected in acting or refraining from
acting upon any document believed by it to be genuine and to have been signed or presented by the
proper Person. The Trustee need not investigate any fact or matter stated in the document.










 



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          (b) Before the Trustee acts or refrain from acting, it shall require an Officer’s
Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of
Counsel. The Trustee may consult with counsel of its own selection and the written advice of
such counsel and Opinions of Counsel shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon.




          (c) The Trustee may act through its attorneys, accountants, experts and such other
professionals as the Trustee deems necessary, advisable or appropriate and shall not be
responsible for the misconduct or negligence of any attorney, accountant, expert or other such
professional appointed with due care.




          (d) The Trustee shall not be liable for any action it takes or omits to take in good faith
that it believes to be authorized or within the rights or powers conferred upon it by this
Indenture.




          (e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company shall be sufficiently evidenced by a written order signed by two
Officers of the Company.




          (f) The Trustee shall not be charged with knowledge of any Default or Event of Default under
Section 6.1 hereof (other than under Section 6.1(a) (subject to the following sentence) or
Section 6.1(b) hereof) unless either (i) a Responsible Officer shall have actual knowledge
thereof, or (ii) the Trustee shall have received notice thereof in accordance with Section 14.2
hereof from the Company or any Holder of the Notes. The Trustee shall not be charged with
knowledge of the Company’s obligation to pay Additional Interest, or the cessation of such
obligation, unless the Trustee receives written notice thereof from the Company or any Holder.
For the avoidance of doubt, the Trustee shall not be charged with knowledge of the contents of
the ABL Security Documents or the Term Security Documents, as the case may be.




          (g) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder and under the Security Documents, including, without
limitation, in its capacity as Collateral Agent.




          (h) In no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of
profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.










 



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          (i) The Trustee may request that the Company deliver an Officers’ Certificate setting forth
the names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person
specified as so authorized in any such certificate previously delivered and not superseded.




          (j) In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts
of God, and interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; it being understood that the Trustee shall use reasonable
efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.




          (k) The Trustee shall not be required to give any bond or surety in respect of the execution
of the trusts and powers under this Indenture.




          (l) Delivery of reports, information and documents to the Trustee pursuant to Section 4.3 is
for informational purposes only and the Trustee’s receipt thereof shall not constitute
constructive notice of any information contained therein or determined from information contained
therein, including the Company’s compliance with any covenant hereunder, as to which the Trustee
is entitled to rely conclusively on Officer’s Certifiates. The Trustee is under no obligation to
examine such reports, information or documents to ensure compliance with provisions of this
Indenture or ascertain the correctness or otherwise of the informations or statements contained
therein. The Trustee is entitled to assume such compliance or correctness unless a Responsible
Officer of the Trustee is informed in writing otherwise.



Section 7.3. Individual Rights of Trustee.




          The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company or any Affiliate of the Company with the same rights it
would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest within the meaning of the TIA it must eliminate such conflict within 90 days, apply
(subject to the consent of the Company) to the Commission for permission
to continue as trustee or resign. Any Agent may do the same with like rights and duties. The
Trustee is also subject to Sections 7.10 and 7.11 hereof.



Section 7.4. Trustee’s Disclaimer.




          The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture, or the Notes, it shall not be accountable for the Company’s use of the
proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any
provision of this Indenture, it shall not be responsible for the use or applica-









 



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tion of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document in connection with
the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.



Section 7.5. Notice of Defaults.




          If a Default or Event of Default occurs and is continuing, the Trustee shall mail to Holders
of Notes a notice of the Default or Event of Default within 90 days after it occurs. Except in the
case of a Default in payment of interest or principal on any Note (including the failure to make a
mandatory repurchase pursuant hereto), the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Notes.



Section 7.6. Reports by Trustee to Holder of the Notes.




          Within 60 days after each May 1 beginning with May 1, 2010, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA § 313(a) (but if no event described in TIA § 313(a) has
occurred within the twelve months preceding the reporting date, no report need be transmitted).
The Trustee also shall comply with TIA § 313(b). The Trustee shall also transmit by mail all
reports as required by TIA § 313(c).




          A copy of each report at the time of its mailing to the Holders of Notes shall be mailed to
the Company and filed with the Commission and each stock exchange on which the Notes are listed in
accordance with TIA § 313(d). The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange.



Section 7.7. Compensation, Reimbursement and Indemnity.




          The Company shall pay to the Trustee from time to time such compensation for its acceptance of
this Indenture and the rendering by it of the services required hereunder as shall be agreed upon
in writing by the Company and the Trustee. The Trustee’s compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee
promptly upon request for all reasonable disbursements, advances and expenses incurred or made by or on behalf of it in addition to the compensation for its
services. Such expenses shall include the reasonable compensation, disbursements and expenses of
the Trustee’s attorneys, accountants, experts and such other professionals as the Trustee deems
necessary, advisable or appropriate.




          The Company shall indemnify the Trustee and any successor Trustee against any and all losses,
liabilities, claims, damages or expenses, including taxes (other than taxes based upon, measured by
or determined by the income of the Trustee), incurred by it arising out of or in connection with
the acceptance or administration of its duties under this Indenture (including









 



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its duties under Section 9.6 hereof), including the costs and expenses of enforcing this Indenture or any Guarantee
against the Company or a Guarantor (including this Section 7.7) and defending itself against or
investigating any claim (whether asserted by the Company, any Guarantor, any Holder or any other
Person) or liability in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be attributable to its
negligence or willful misconduct. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend any claim or threatened claim
asserted against the Trustee, and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.




          The obligations of the Company under this Section 7.7 shall survive the resignation or removal
of the Trustee, the satisfaction and discharge of this Indenture and the termination of this
Indenture.




          To secure the Company’s payment obligations in this Section 7.7, the Trustee shall have a Lien
prior to the Notes on all money or property held or collected by the Trustee, except that held in
trust to pay principal, Redemption Price or Purchase Price of or Additional Interest, if any, or
interest on, particular Notes. Such Lien shall survive the resignation or removal of the Trustee,
the satisfaction and discharge of this Indenture and the termination of this Indenture.




          When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.1(f) or (g) hereof occurs, the expenses and the compensation for the services (including
the fees and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.



Section 7.8. Replacement of Trustee.




          A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.




          The Trustee may resign in writing at any time and be discharged from the trust hereby created
by so notifying the Company. The Holders of Notes of a majority in principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in writing.
The Company may remove the Trustee if:




          (a) the Trustee fails to comply with Section 7.10 hereof;




          (b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered
with respect to the Trustee under any Bankruptcy Law;










 



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          (c) a custodian, receiver or public officer takes charge of the Trustee or its property for
the purpose of rehabilitation, conversation or liquidation; or




          (d) the Trustee becomes incapable of acting.




          If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint a successor Trustee. Within one year after the date on
which the successor Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the
Company.




          If a successor Trustee does not take office within 30 days after the retiring trustee resigns
or is removed, the retiring Trustee, the Company, or the Holders of Notes of at least 10% in
principal amount of the then outstanding Notes may petition any court of competent jurisdiction, in
the case of the Trustee, at the expense of the Company, for the appointment of a successor Trustee.




          If the Trustee, after written request by any Holder of a Note who has been a bona fide holder
of a Note or Notes for at least six months, fails to comply with Section 7.10, such Holder of a
Note may petition any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.




          A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The Company shall mail a notice of its succession to Holder of the
Notes. The retiring Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject to
the Lien provided for in Section 7.7 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.8, the Company’s obligations under Section 7.7 hereof shall continue for the
benefit of the retiring Trustee.



Section 7.9. Successor Trustee by Merger, Etc.




          If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation that is eligible under Section 7.10 hereof,
the successor corporation without any further act shall be the successor Trustee.



Section 7.10. Eligibility; Disqualification.




          There shall at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof (including the
District of Columbia) that is authorized under such laws to exercise corporate trust power, that is
subject to supervision or examination by federal or state authorities and that has a com-









 



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bined
capital and surplus of at least $100 million as set forth in its most recent published annual
report of condition.




          This Indenture shall always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5). The Trustee is subject to TIA § 310(b).



Section 7.11. Preferential Collection of Claims Against Company.




          The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA §
311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated therein.



Section 7.12. Collateral Agent.




          The rights, privileges, protections, immunities and benefits given to the Trustee, including,
without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the
Collateral Agent as if the Collateral Agent were named as the Trustee herein and the Security
Documents were named as this Indenture herein.




ARTICLE VIII.




LEGAL DEFEASANCE AND COVENANT DEFEASANCE



Section 8.1. Option To Effect Legal Defeasance or Covenant Defeasance.




          The Company may, at the option of its Board of Directors evidenced by a resolution set forth
in an Officers’ Certificate, at any time, elect to have either Section 8.2 or 8.3 hereof be applied
to all outstanding Notes upon compliance with the conditions set forth below in this Article VIII.



Section 8.2. Legal Defeasance and Discharge.




          Upon the Company’s exercise under Section 8.1 hereof of the option applicable to this Section
8.2, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.4
hereof, be deemed to have been discharged from its obligations with respect to all outstanding
Notes on the date the conditions set forth below are satisfied (hereinafter, “Legal
Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to the “outstanding” only for the purposes of Section 8.5 hereof and the other
Sections of this Indenture referred to in clauses (a) through (d) below, and to have satisfied all
their other obligations under such Notes and this Indenture (and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or discharged hereunder:










 



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          (a) the rights of Holders to receive payments in respect of the principal of, premium, if
any, and interest on the Notes when such payments are due;




          (b) the Company’s obligations with respect to the Notes concerning issuing temporary Notes,
registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an
office or agency for payments;




          (c) the rights, powers, trust, duties and immunities of the Trustee and the Company’s
obligations in connection therewith; and




          (d) the Legal Defeasance provisions of this Article VIII.




          Subject to compliance with this Article VIII, the Company may exercise its option under this
Section 8.2, notwithstanding the prior exercise of its option under Section 8.3 hereof.



Section 8.3. Covenant Defeasance.




          Upon the Company’s exercise under Section 8.1 hereof of the option applicable to this Section
8.3, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.4
hereof, be released from its obligations under the covenants contained in Sections 3.9, 3.10, 4.5,
4.7 through 4.12 and 4.14 through 4.24 hereof, both inclusive, and Section 5.1(2) with respect to
the outstanding Notes on and after the date the conditions set forth below are satisfied
(hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed not
“outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders
(and the consequences of any thereof) in connection with such covenants, but shall continue to be
deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall
not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means
that, with respect to the outstanding Notes, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other provision herein or in any
other document, and such omission to comply shall not constitute a Default or an Event of Default
under Section 6.1 hereof, but, except as specified above the remainder of this Indenture and such
Notes shall be unaffected thereby. In addition, upon the Company’s exercise under Section 8.1
hereof of the option applicable to this Section 8.3, subject to the satisfaction of the conditions
set forth in Section 8.4 hereof, Sections 6.1(c) through 6.1(h) hereof shall not constitute Events
of Default.



Section 8.4. Conditions to Legal or Covenant Defeasance.




          The following are the conditions precedent to the application of either Section 8.2 or 8.3
hereof to the outstanding Notes:










 



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          In order to exercise either Legal Defeasance or Covenant Defeasance:





     (1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders cash in U.S. dollars, non-callable U.S. Government Obligations, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of, premium, if any, and
interest on the Notes on the stated date for payment thereof or on the applicable redemption
date, as the case may be;




     (2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an
opinion of counsel in the United States reasonably acceptable to the Trustee confirming
that:




     (a) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling; or




     (b) since the Issue Date, there has been a change in the applicable federal
income tax law,




in either case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders will not recognize income, gain or loss for federal income tax purposes as
a result of such Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;




     (3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee
an opinion of counsel in the United States reasonably acceptable to the Trustee confirming
that the Holders will not recognize income, gain or loss for federal income tax purposes as
a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred;




     (4) no Default or Event of Default shall have occurred and be continuing on the date of
such deposit (other than a Default or an Event of Default resulting from the borrowing of
funds to fund the deposit referred to in clause (1) above);




     (5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture (other than a Default or an
Event of Default resulting from the borrowing of funds to be applied to such deposit and the
grant of any Lien securing such borrowings), the Credit Agreements or any other material
agreement or instrument to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound;









 



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     (6) the Company shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit was not made by the Company with the intent of preferring the Holders over
any other creditors of the Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company or others; and




     (7) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for or relating to
the Legal Defeasance or the Covenant Defeasance have been complied with.



          Notwithstanding the foregoing, the Opinion of Counsel required by clause (2) above with
respect to a Legal Defeasance need not be delivered if all Notes not theretofore delivered to the
Trustee for cancellation (1) have become due and payable or (2) will become due and payable on the
maturity date within one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the Company.



Section 8.5. Deposited Money and U.S. Government Obligations To Be Held in
Trust; Other Miscellaneous Provisions.




          Subject to Section 8.6 hereof, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.5 only, the “Trustee”) pursuant to Section 8.4 hereof in respect
of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or through any Paying
Agent (other than the Company) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal or Redemption Price of, and Additional
Interest, if any, interest on, the Notes, provided that such money need not be segregated
from other funds except to the extent required by law.




          The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the cash or U.S. Government Obligations deposited pursuant to Section 8.4
hereof or the principal and interest received in respect thereof other than any such tax, fee or
other charge which by law is for the account of the Holders of the outstanding Notes.




          Anything in this Article VIII to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon the request of the Company any money or U.S. Government
Obligations held by it as provided in Section 8.4 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 8.4 (2)(a) hereof), are
in excess of the amount thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.










 



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Section 8.6. Repayment to the Company.




          Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal, Redemption Price or Purchase Price of, or Additional
Interest, if any, or interest on any Note and remaining unclaimed for two years after such amount
has become due and payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall thereafter look
only to the Company for payment thereof as a general creditor, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, at the expense of the Company, may cause
to be published once, in The New York Times and The Wall Street Journal (national editions), notice
that such money remains unclaimed and that, after a date specified therein, which shall not be less
than 30 days after the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.



Section 8.7. Reinstatement.




          If the Trustee or Paying Agent is unable to apply any United States dollars or U.S. Government
Obligations in accordance with Section 8.2 or 8.3 hereof, as the case may be, by reason of any
order of judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations of the Company and the Guarantors under this
Indenture, and the Notes and the Guarantees shall be revived and reinstated as though no deposit
had occurred pursuant to Section 8.2 or 8.3 hereof until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 8.2 or 8.3 hereof, as the case may
be; provided, however, that, if the Company makes any payment with respect to any Note following
the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders
of such Notes to receive such payment from the money held by the Trustee or Paying Agent.



ARTICLE IX.




AMENDMENT, SUPPLEMENT AND WAIVER



Section 9.1. Without Consent of Holders of Notes.




          Notwithstanding Section 9.2 of this Indenture, the Company, the Guarantors and the Trustee
(including in its capacity as Collateral Agent) may amend or supplement this Indenture, the
Security Documents or the Notes without the consent of any Holder of a Note:




          (a) to cure any ambiguity, defect or inconsistency so long as such changes do not, in the
opinion of the Trustee, adversely affect the rights of any of the Holders in any material
respect.










 



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          (b) to provide for uncertificated Notes in addition to or in place of Certificated Notes;




          (c) to provide for the assumption of the Company’s obligations to the Holders of the Notes
in the case of a merger or consolidation or sale of all or substantially all of the Company’s
assets pursuant to Article V hereof;




          (d) if applicable, to comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the TIA;




          (e) to add or release the Guarantees of Guarantors in compliance with this Indenture and to
add or release assets as Collateral in accordance with this Indenture and the Security Documents;




          (f) to secure additional First Lien Obligations permitted to be incurred pursuant to this
Indenture by Liens ranking prior to the Liens securing the Notes and the Guarantees and securing
additional Pari Passu Junior Lien Obligations permitted to be incurred pursuant to this Indenture
by Liens ranking pari passu with the Liens securing the Notes and the Guarantees;




          (g) to make any change that would provide any additional rights or benefits to the Holders
of the Notes or that does not adversely affect the legal rights hereunder of any Holder of the
Notes in any material respect; or




          (h) amending any Security Document to eliminate any assets purported to be secured thereby
which are not actually owned by the Company or the Guarantors and were not owned by the Company
or the Guarantors at the time such Security Document was entered into.




          Upon the request of the Company, accompanied by a resolution of the Board (evidenced by an
Officers’ Certificate) authorizing the execution of any such amended or supplemental indenture, and
upon receipt by the Trustee of the documents described in Section 7.2 hereof, the Trustee shall
join with the Company in the execution of any amended or supplemental Indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental indenture that affects its own rights, duties or immunities under this
Indenture or otherwise. In formulating its opinion on such matters, the Trustee shall be entitled
to rely on such evidence as it deems appropriate, including, without limitation, solely on an
Opinion of Counsel.



Section 9.2. With Consent of Holders of Notes.




          Except as provided below in this Section 9.2, the Company and the Trustee may amend or
supplement this Indenture, the Security Documents and the Notes may be amended or









 



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supplemented with
the consent of the Holders of at least a majority in principal amount of the Notes then outstanding
(including, without limitation, consents obtained in connection with a tender offer or exchange
offer for the Notes), and, subject to Sections 6.2, 6.4 and 6.7 hereof, any existing Default or
Event of Default or compliance with any provision of this Indenture or the Notes may be waived with
the consent of the Holders of a majority in principal amount of the then outstanding Notes
(including consents obtained in connection with a tender offer or exchange offer for the Notes).




          Without the consent of each Holder affected, an amendment or waiver may not (with respect to
any Notes held by a non-consenting Holder):





     (1) reduce the amount of Notes whose Holders must consent to an amendment;




     (2) reduce the rate of or change or have the effect of changing the time for payment of
interest, including defaulted interest, on any Notes;




     (3) reduce the principal of or change or have the effect of changing the fixed maturity
of any Notes, or change the date on which any Notes may be subject to redemption or reduce
the redemption price therefor, other than prior to the Company’s obligation to purchase
Notes under provisions relating to the Company’s obligation to make and consummate a Change
of Control Offer in the event of a Change of Control or to make and consummate a Net
Proceeds Offer with respect to any Asset Sale or to make and consummate an Event of Loss
Offer with respect to any Event of Loss;




     (4) make any Notes payable in money other than that stated in the Notes;




     (5) make any change in provisions of this Indenture protecting the right of each Holder
to receive payment of principal of and interest on such Note on or after the due date
thereof or to bring suit to enforce such payment, or permitting Holders of a majority in
principal amount of Notes to waive Defaults or Events of Default;




     (6) between the date on which a Change of Control, an Asset Sale giving rise to the
Company’s obligation to make a Net Proceeds Offer or an Event of Loss giving rise to the
Company’s obligation to make an Event of Loss Offer occurs and the date on which the
payments are made with respect to the related Change of Control Offer, Net Proceeds Offer or
Event of Loss Offer, as the case may be, amend, change or modify in any material respect (A)
the obligation of the Company to make and consummate a Change of Control Offer in the event
of a Change of Control or make and consummate a Net Proceeds Offer with respect to Asset
Sales that have been consummated or an Event of Loss Offer with respect to an Event of Loss
that has occurred or (B) any of the provisions or definitions with respect thereto;









 



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     (7) modify or change any provision of this Indenture or the related definitions
affecting the ranking of the Notes or subordination of any Guarantee in a manner which
adversely affects the Holders in any material respect;




     (8) release any Guarantor that is a Significant Subsidiary from any of its obligations
under its Guarantee or this Indenture otherwise than in accordance with the terms of this
Indenture; or




     (9) release all or substantially all of the Collateral from the Liens of the Security
Documents otherwise than in accordance with the terms of this Indenture or the Security
Documents.



          Upon the written request of the Company accompanied by a resolution of the Board (evidenced by
an Officers’ Certificate) authorizing the execution of any such amended or supplemental indenture,
and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the
Holders of Notes as aforesaid, and upon receipt by the Trustee of an Officers’ Certificate and an
Opinion of Counsel, the Trustee shall join with the Company in the execution of such amended or
supplemental indenture unless such amended or supplemental indenture affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such amended or supplemental indenture.




          It shall not be necessary for the consent of the Holders of Notes under this Section 9.2 to
approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such
consent approves the substance thereof.




          No amendment of, or supplement or waiver to, this Indenture shall adversely affect the rights
of the holders of any Guarantor Senior Debt under Article X hereof (including any defined terms as
used therein) without the consent of each holder of Guarantor Senior Debt affected thereby.




          After an amendment, supplement or waiver under this Section 9.2 becomes effective, the Company
shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such amended or supplemental
Indenture or waiver.



Section 9.3. Compliance with Trust Indenture Act.




          Every amendment or supplement to this Indenture or the Notes shall be set forth in a amended
or supplemental indenture that complies with the TIA as then in effect.


















 





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Section 9.4. Revocation and Effect of Consents.




          Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and therefore binds every Holder.




Section 9.5. Notation on or Exchange of Notes.




          The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee
shall authenticate new Notes that reflect the amendment, supplement or waiver.




          Failure to make the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.




Section 9.6. Trustee To Sign Amendment, Etc.




          The Trustee or Collateral Agent shall sign any amendment or supplemental indenture authorized
pursuant to this Article IX if the amendment or supplement does not adversely affect the rights,
duties, liabilities or immunities of the Trustee or Collateral Agent. The Company may not sign an
amendment or supplemental Indenture until the Board approves such amendment or supplemental
indenture. In executing any amendment or supplemental indenture, the Trustee or Collateral Agent
shall be entitled to receive, in addition to the documents required by Sections 13.4 and 13.5
hereof, and, subject to Section 7.1, shall be fully protected in relying upon, an Officers’
Certificate and an Opinion of Counsel stating that (i) the execution of such amendment or
supplemental indenture is authorized or permitted by this Indenture, (ii) no Event of Default shall
occur as a result of the execution of such Officers’ Certificate or the delivery of such Opinion of
Counsel and (iii) the amendment or supplemental indenture complies with the terms of this
Indenture.




ARTICLE X.




SUBORDINATION OF THE GUARANTEES




Section 10.1. Guarantees Subordinated to Guarantor Senior Debt.




          Anything herein to the contrary notwithstanding, each of the Company and the Guarantors, for
itself and its successors, and each Holder, by his or her acceptance of Guaran-










 



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tees, agrees that the payment by the Guarantors of all Obligations with respect to the
Guarantees is subordinated in right of payment to the prior payment in full in cash or Cash
Equivalents of all Obligations on Guarantor Senior Debt (including all Obligations with respect to
the Credit Agreements). Notwithstanding the foregoing, payments and distributions made relating to
the Guarantees pursuant to the trust described under Article VIII hereof shall not be so
subordinated in right of payment so long as the payments into the trust were made in accordance
with the requirements described under Article VIII hereof and did not violate the subordination
provisions when they were made.




          This Article X shall constitute a continuing offer to all Persons who become holders of, or
continue to hold, Guarantor Senior Debt, and such provisions are made for the benefit of the
holders of Guarantor Senior Debt and such holders are made obligees hereunder and any one or more
of them may enforce such provisions. Each such holder shall be deemed to have acquired such
Guarantor Senior Debt in reliance upon the covenants and provisions contained in this Article X .




Section 10.2. Suspension of Payment When Guarantor Senior Debt Is in
Default.





          (a) Unless Section 10.3 hereof shall be applicable, if any default occurs and is continuing
in the payment when due (and such default has not been cured or waived), whether at maturity,
upon any redemption, by declaration or otherwise, of any principal of, premium (if any) or
interest on, unpaid drawings for letters of credit issued in respect of, unreimbursed payments
with respect to bank guarantees issued in respect of or regularly accruing fees with respect to,
any Guarantor Senior Debt (a “Payment Default”), then no payment or distribution of any
kind or character shall be made by or on behalf of any Guarantor or any other Person on its or
their behalf with respect to any Obligations on or relating to the Guarantees or to acquire any
Notes for cash or property or otherwise.




          (b) Unless Section 10.3 hereof shall be applicable, if any other event of default (other
than a Payment Default) occurs and is continuing with respect to any Guarantor Senior Debt (as
such event of default is defined in the instrument creating or evidencing such Guarantor Senior
Debt) permitting the holders of such Guarantor Senior Debt then outstanding to accelerate the
maturity thereof (a “Non-payment Default”) and if the Representative for the respective
issue of Guarantor Senior Debt gives notice of the event of default to the Trustee stating that
such notice is a payment blockage notice (a “Payment Blockage Notice”), then, unless and
until all events of default have been cured or waived or have ceased to exist or a Responsible
Officer of the Trustee receives at the Corporate Trust Office of the Trustee written notice
thereof from the Representative for the respective issue of Guarantor Senior Debt terminating the
Payment Blockage Period, during the 180 days after the delivery of such Payment Blockage Notice
(the “Payment Blockage Period”), neither any Guarantor nor any other Person on its behalf
shall (x) make any payment or distribution of any kind or character with respect to any
Obligations on or with respect to the Guarantees or (y) acquire any of the Notes for cash or
property or otherwise. Notwithstanding anything herein to the contrary, (x) in no









 



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event will a Payment Blockage Period extend beyond 180 days from the date the applicable
Payment Blockage Notice is received by the Trustee and (y) no new Payment Blockage Notice may be
delivered unless and until 360 days have elapsed since the effectiveness of the immediately prior
Payment Blockage Notice. For all purposes of this Section 10.2(b), no event of default which
existed or was continuing on the date of the commencement of any Payment Blockage Period with
respect to the Guarantor Senior Debt shall be, or be made, the basis for the commencement of a
second Payment Blockage Period by the Representative of such Guarantor Senior Debt whether or not
within a period of 360 days, unless such event of default shall have been cured or waived for a
period of not less than 90 consecutive days (it being acknowledged that any subsequent action, or
any breach of any financial covenants for a period commencing after the date of commencement of
such Payment Blockage Period that, in either case, would give rise to an event of default
pursuant to any provisions under which an event of default previously existed or was continuing
shall constitute a new event of default for this purpose).




          (c) In the event that, notwithstanding the foregoing, any payment shall be received by the
Trustee or any Holder when such payment is prohibited by the foregoing provisions of this Section
10.2, such payment shall be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of Guarantor Senior Debt (pro rata to such holders on the basis of the respective
amount of Guarantor Senior Debt held by such holders) or their respective Representatives, as
their respective interests may appear. The Trustee shall be entitled to rely conclusively on
information regarding amounts then due and owing on the Guarantor Senior Debt, if any, received
from the holders of Guarantor Senior Debt (or their Representatives) or, if such information is
not received from such holders or their Representatives, from the Company and only amounts
included in the information provided to the Trustee shall be paid to the holders of Guarantor
Senior Debt.



          If payment of the Notes and Guarantees is accelerated because of an Event of Default, the
Guarantors (with a copy to the Trustee) shall promptly notify the holders of the Guarantor Senior
Debt or the Representative of such holders of the acceleration; provided that any failure
to give such notice shall have no effect whatsoever on the subordination provisions contained
herein. If any Guarantor Senior Debt is outstanding, such acceleration will not be effective until
the time specified in Section 6.2.




          Nothing contained in this Article X shall limit the right of the Trustee or the Holders of
Notes to take any action to accelerate the maturity of the Notes pursuant to Section 6.2 or to
pursue any rights or remedies hereunder (subject, however, to the rights, if any, under this
Article X, of the holders of Guarantor Senior Debt in respect of cash or other property of a
Guarantor received upon the exercise of any such remedy); provided that all Guarantor
Senior Debt thereafter due or declared to be due shall first be paid in full in cash or Cash
Equivalents before the Holders are entitled to receive any payment of any kind or character with
respect to Obligations on, or with respect to, the Guarantees.










 



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Section 10.3. Guarantees Subordinated to Prior Payment of All Guarantor Senior Debt
on Dissolution, Liquidation or Reorganization of the Guarantors.






          (a) Upon any payment or distribution of assets of any Guarantor of any kind or character,
whether in cash, property or securities, to creditors upon any total or partial liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of creditors or marshaling of
assets of any Guarantor or in a bankruptcy, reorganization, insolvency, receivership or other
similar proceeding relating to any Guarantor or its property, whether voluntary or involuntary,
all Obligations due or to become due upon all Guarantor Senior Debt shall first be paid in full
in cash or Cash Equivalents (including interest after the commencement of any bankruptcy or other
like proceeding at the rate specified in the applicable Guarantor Senior Debt, whether or not
such interest is an allowed claim in any such proceeding), before any payment or distribution of
any kind or character is made on account of any Obligations on or relating to the Guarantees, or
for the acquisition of any of the Notes for cash or property or otherwise. Upon any such
dissolution, winding-up, liquidation, reorganization, receivership or similar proceeding, any
payment or distribution of assets of any Guarantor of any kind or character, whether in cash,
property or securities, to which the Holders of the Notes or the Trustee under this Indenture
would be entitled, except for the provisions hereof, shall be paid by the Guarantor or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment
or distribution, or by the Holders or by the Trustee under this Indenture if received by them,
directly to the holders of Guarantor Senior Debt (pro rata to such holders on the basis of the
respective amounts of Guarantor Senior Debt held by such holders) or their respective
Representatives, or to the trustee or trustees under any indenture pursuant to which any of such
Guarantor Senior Debt may have been issued, as their respective interests may appear, for
application to the payment of Guarantor Senior Debt remaining unpaid until all such Guarantor
Senior Debt has been paid in full in cash or Cash Equivalents after giving effect to any
concurrent payment, distribution or provision therefor to or for the holders of Guarantor Senior
Debt.




          (b) To the extent any payment of Guarantor Senior Debt (whether by or on behalf of any
Guarantor, as proceeds of security or enforcement of any right of set-off or otherwise) is
declared to be fraudulent or preferential, set aside or required to be paid to any receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy,
insolvency, receivership, fraudulent conveyance or similar law, then, if such payment is
recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar Person, the Guarantor Senior Debt or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.
It is further agreed that any diminution (whether pursuant to court decree or otherwise,
including without limitation for any of the reasons described in the preceding paragraph) of any
Guarantor’s obligation to make any distribution or payment pursuant to any Guarantor Senior Debt,
except to the extent such diminution occurs by reason of the repayment (which has not been
disgorged or returned) of such Guarantor Senior Debt in cash or Cash Equivalents, shall have no
force or effect for purposes of the subordination provisions contained in this Article









 



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X, with any turnover of payments as otherwise calculated pursuant to this Article X to be made as if
no such diminution had occurred.




          (c) In the event that, notwithstanding the foregoing, any payment or distribution of assets
of any Guarantor of any kind or character, whether in cash, property or securities, shall be
received by the Trustee or any Holder when such payment or distribution is prohibited by this
Section 10.3, such payment or distribution shall be held in trust for the benefit of, and shall
be paid over or delivered to, the holders of Guarantor Senior Debt (pro rata to such holders on
the basis of the respective amount of Guarantor Senior Debt held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture pursuant to which
any of such Guarantor Senior Debt may have been issued, as their respective interests may appear,
for application to the payment of Guarantor Senior Debt remaining unpaid until all such Guarantor
Senior Debt has been paid in full in cash or Cash Equivalents, after giving effect to any
concurrent payment, distribution or provision therefor to or for the holders of such Guarantor
Senior Debt.




          (d) The consolidation of any Guarantor with, or the merger of any Guarantor with or into,
another Person or the liquidation or dissolution of any Guarantor following the conveyance or
transfer of all or substantially all of its assets, to another Person upon the terms and
conditions provided in Article V hereof and as long as permitted under the terms of the Guarantor
Senior Debt shall not be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 10.3 if such other Person shall, as a part of such consolidation,
merger, conveyance or transfer, assume the Guarantor’s obligations hereunder in accordance with
Article V hereof.



Section 10.4. Payments May Be Paid Prior to Dissolution.




          Nothing contained in this Article X or elsewhere in this Indenture shall prevent (i) the
Guarantors, except under the conditions described in Sections 10.2 and 10.3, from making payments
at any time for the purpose of making payments of principal of and interest on the Notes, or from
depositing with the Trustee any moneys for such payments, or (ii) in the absence of actual
knowledge by a Responsible Officer of the Trustee that a given payment would be prohibited by
Section 10.2 or 10.3, the application by the Trustee of any moneys deposited with it for the
purpose of making such payments of principal of, and interest on, the Notes to the Holders entitled
thereto unless at least two Business Days prior to the date upon which such payment would otherwise
become due and payable a Responsible Officer shall have actually received the written notice
provided for in the first sentence of Section 10.2(b) or in Section 10.7 or in the last sentence of
this Section 10.4 (provided that, notwithstanding the foregoing, the subordination of the
Guarantees to Guarantor Senior Debt shall not be affected and the Holders receiving any payments
made in contravention of Section 10.2 and/or 10.3 (and the respective such payments) shall
otherwise be subject to the provisions of this Article X). The Company shall give prompt written
notice to the Trustee of any dissolution, winding-up, liquidation or reorganization of any









 



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Guarantor, although any delay or failure to give any such notice shall have no effect on the
subordination provisions contained herein.




Section 10.5. Holders To Be Subrogated to Rights of Holders of Guarantor Senior
Debt.




          Subject to the payment in full in cash or Cash Equivalents of all Guarantor Senior Debt, the
Holders of the Guarantees shall be subrogated to the rights of the holders of Guarantor Senior Debt
to receive payments or distributions of cash, property or securities of any Guarantor applicable to
the Guarantor Senior Debt until the Notes shall be paid in full; and, for the purposes of such
subrogation, no such payments or distributions to the holders of the Guarantor Senior Debt by or on
behalf of any Guarantor, or by or on behalf of the Holders by virtue of this Article X, which
otherwise would have been made to the Holders shall, as between any Guarantor and the Holders, be
deemed to be a payment by any Guarantor to or on account of the Guarantor Senior Debt, it being
understood that the provisions of this Article X are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders of Guarantor Senior
Debt, on the other hand.




Section 10.6. Obligations of Guarantors Unconditional.




          Nothing contained in this Article X or elsewhere in this Indenture or in the Guarantees is
intended to or shall impair, as among the Guarantors, its creditors other than the holders of
Guarantor Senior Debt, and the Holders, the obligation of the Guarantors, which is absolute and
unconditional, to pay to the Holders the principal of and any interest on the Notes as and when the
same shall become due and payable in accordance with their terms, or is intended to or shall affect
the relative rights of the Holders and creditors of the Guarantors other than the holders of the
Guarantor Senior Debt, nor shall anything herein or therein prevent the Holder of any Guarantee or
the Trustee on its behalf from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, in respect of cash, property or
securities of any Guarantor received upon the exercise of any such remedy.




Section 10.7. Notice to Trustee.




          The Company shall give prompt written notice to the Trustee of any fact known to the Company
which would prohibit the making of any payment to or by the Trustee in respect of the Guarantees
pursuant to the provisions of this Article X, although any delay or failure to give any such
notice shall have no effect on the subordination provisions contained herein. Regardless of
anything to the contrary contained in this Article X or elsewhere in this Indenture, the Trustee
shall not be charged with knowledge of the existence of any default or event of default with
respect to any Guarantor Senior Debt or of any other facts which would prohibit the making of any
payment to or by the Trustee unless and until a Responsible Officer of the Trustee shall have
received at the Corporate Trust Office of the Trustee notice in writing from the Company or from a
holder of Guarantor Senior Debt or a Representative therefor and, prior to the receipt of
any such written notice, the Trustee shall be entitled to assume that no such facts exist
(provided









 



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that, notwithstanding the foregoing, the Holders of the Guarantees receiving any
payments made in contravention of Section 10.2 and/or 10.3 hereof (and the respective such
payments) shall otherwise be subject to the provisions of this Article X). The Trustee shall be
entitled to rely on the delivery to it of any notice pursuant to this Section 10.7 to establish
that such notice has been given by a holder of Guarantor Senior Debt (or a Representative thereof).




          In the event that the Trustee determines in good faith that any evidence is required with
respect to the right of any Person as a holder of Guarantor Senior Debt to participate in any
payment or distribution pursuant to this Article X, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amounts of Guarantor Senior Debt
held by such Person, the extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under this Article X, and
if such evidence is not furnished the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.




Section 10.8. Reliance on Judicial Order or Certificate of Liquidating
Agent.




          Upon any payment or distribution of assets of any Guarantor referred to in this Article X, the
Trustee, subject to the provisions of Article VII hereof, and the Holders of the Guarantees shall
be entitled to rely upon any order or decree made by any court of competent jurisdiction in which
any insolvency, bankruptcy, receivership, dissolution, winding-up, liquidation, reorganization or
similar case or proceeding is pending, or upon a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, assignee for the benefit of creditors, agent or other person
making such payment or distribution, delivered to the Trustee or the Holders of the Guarantees, for
the purpose of ascertaining the Persons entitled to participate in such payment or distribution,
the holders of the Guarantor Senior Debt and other Indebtedness of the Guarantors, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article X.




Section 10.9. Trustee’s Relation to Guarantor Senior Debt.




          The Trustee and any agent of the Guarantors or the Trustee shall be entitled to all the rights
set forth in this Article X with respect to any Guarantor Senior Debt which may at any time be held
by it in its individual or any other capacity to the same extent as any other holder of Guarantor
Senior Debt and nothing in this Indenture shall deprive the Trustee or any such agent of any of its
rights as such holder.




          With respect to the holders of Guarantor Senior Debt, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set forth in this Article X,
and no implied covenants or obligations with respect to the holders of Guarantor Senior Debt shall
be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Guarantor Senior Debt.










 



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          Whenever a distribution is to be made or a notice given to holders or owners of Guarantor
Senior Debt, the distribution may be made and the notice may be given to their Representative, if
any.




Section 10.10. Subordination Rights Not Impaired by Acts or Omissions of the
Guarantors or Holders of Guarantor Senior Debt.




          No right of any present or future holders of any Guarantor Senior Debt to enforce
subordination as provided herein shall at any time in any way be prejudiced or impaired by any act
or failure to act on the part of the Guarantors or by any act or failure to act by any such holder,
or by any noncompliance by the Guarantors with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.




          Without in any way limiting the generality of the foregoing paragraph, the holders of
Guarantor Senior Debt may, at any time and from time to time, without the consent of or notice to
the Trustee or the Holders of the Guarantees, without incurring responsibility to the Trustee or
the Holders of the Guarantees and without impairing or releasing the subordination provided in this
Article X or the obligations hereunder of the Holders of the Guarantees to the holders of the
Guarantor Senior Debt, do any one or more of the following: (i) change the manner, place or terms
of payment or extend the time of payment of, or renew or alter, Guarantor Senior Debt, or otherwise
amend or supplement in any manner Guarantor Senior Debt, or any instrument evidencing the same or
any agreement under which Guarantor Senior Debt is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Guarantor Senior Debt;
(iii) release any Person liable in any manner for the payment or collection of Guarantor Senior
Debt; and (iv) exercise or refrain from exercising any rights against the Guarantors and any other
Person.




Section 10.11. Securityholders Authorize Trustee To Effectuate Subordination of
Guarantees.




          Each Holder of Guarantees by its acceptance of them authorizes and expressly directs the
Trustee on its behalf to take such action as may be necessary or appropriate to effectuate, as
between the holders of Guarantor Senior Debt and the Holders of Guarantees, the subordination
provided in this Article X, and appoints the Trustee its attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, liquidation or reorganization of any
Guarantor (whether in bankruptcy, insolvency, receivership, reorganization or similar proceedings
or upon an assignment for the benefit of credits or otherwise) tending towards liquidation of the
business and assets of any Guarantor, the filing of a claim for the unpaid balance of its
Guarantees and accrued interest in the form required in those proceedings.




          If the Trustee does not file a proper claim or proof of debt in the form required in such
proceeding prior to 30 days before the expiration of the time to file such claim or claims, then
the holders of the Guarantor Senior Debt or their Representative are or is hereby authorized
to have the right to file and are or is hereby authorized to file an appropriate claim for and
on be-









 



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half of the Holders of said Guarantees. Nothing herein contained shall be deemed to authorize
the Trustee or the holders of Guarantor Senior Debt or their Representative to authorize or consent
to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Guarantees or the rights of any Holder thereof, or to authorize the
Trustee or the holders of Guarantor Senior Debt or their Representative to vote in respect of the
claim of any Holder in any such proceeding.




Section 10.12. This Article X Not To Prevent Events of Default.



          The failure to make a payment on account of principal
of or interest on the Notes by reason of any provision of this Article X will not be construed as preventing the occurrence of an Event of Default.



Section 10.13. Trustee’s Compensation Not Prejudiced.




          Nothing in this Article X will apply to amounts due to the Trustee pursuant to other sections
of this Indenture.




ARTICLE XI.




GUARANTEE




Section 11.1. Unconditional Guarantee.




          Each Guarantor hereby unconditionally guarantees (such guarantee to be referred to herein as a
“Guarantee”), on a senior subordinated basis jointly and severally, to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns,
the Notes or the obligations of the Company hereunder or thereunder, that: (i) the principal of
and interest on the Notes will be promptly paid in full when due, subject to any applicable grace
period, whether at maturity, by acceleration or otherwise and interest on the overdue principal, if
any, and interest on any interest, to the extent lawful, of the Notes and all other obligations of
the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension
of time of payment or renewal of any Notes or of any such other obligations, the same will be
promptly paid in full when due or performed in accordance with the terms of the extension or
renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or
otherwise, subject, however, in the case of clauses (i) and (ii) above, to the limitations set
forth in Section 11.3. Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of
the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against
the Company, and action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court in the event of
insol-









 



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vency or bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that this Guarantee will not be
discharged except by complete performance of the obligations contained in the Notes, this Indenture
and in this Guarantee. If any Holder or the Trustee is required by any court or otherwise to
return to the Company, any Guarantor, or any custodian, trustee, liquidator or other similar
official acting in relation to the Company or any Guarantor, any amount paid by the Company or any
Guarantor to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect. Each Guarantor further agrees that, as between each
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of
the obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of
this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any
acceleration of such obligations as provided in Article VI, such obligations (whether or not due
and payable) shall forthwith become due and payable by each Guarantor for the purpose of this
Guarantee. The obligations of each Guarantor to the Holders of the Guarantees and to the Trustee
pursuant to the Guarantee of such Guarantor and this Indenture are expressly subordinate and
subject in right of payment to the prior payment in full in cash or Cash Equivalents of all
Guarantor Senior Debt of such Guarantor, to the extent and in the manner provided in Article X
hereof.




Section 11.2. Severability.




          In case any provision of this Guarantee shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.




Section 11.3. Limitation of Guarantor’s Liability.




          Each Guarantor and by its acceptance hereof each Holder hereby confirms that it is the
intention of all such parties that the guarantee by such Guarantor pursuant to its Guarantee not
constitute a fraudulent transfer or conveyance for purposes of any Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law.
To effectuate the foregoing intention, the Holders and such Guarantor hereby irrevocably agree
that the obligations of such Guarantor under the Guarantee shall be limited to the maximum amount
as will, after giving effect to all other contingent and fixed liabilities of such Guarantor
(including, without limitation, all Guarantor Senior Debt of such Guarantor) and after giving
effect to any collections from or payments made by or on behalf of any other Guarantor in respect
of the obligations of such other Guarantor under its Guarantee, result in the obligations of such
Guarantor under the Guarantee not constituting such fraudulent transfer or conveyance.




Section 11.4. Release of Guarantor.





          (a) The Guarantee of a Guarantor will be automatically and unconditionally released without
any action on the part of the Trustee or the Holders of the Notes: (1) in con-









 



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nection with any
sale or other disposition of all or substantially all of the assets of that Guarantor (including,
without limitation, by way of merger or consolidation), if the Company applies the Net Cash
Proceeds of that sale or other disposition in accordance with the applicable provisions of this
Indenture; (2) in the event all of the Capital Stock of a Guarantor is sold by the Company in
compliance with clauses (1) and (2) of Section 4.10(A) hereof, if the Company applies the Net
Cash Proceeds of that sale in accordance with the applicable provisions of this Indenture; (3) if
the Company designates a Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary
in accordance with the applicable provisions of this Indenture; or (4) upon the payment in full
of the Notes.



          In addition, concurrently with any Legal Defeasance or Covenant Defeasance, the Guarantors
shall be released from all of their Obligations under their respective applicable Guarantees.





          (b) The Trustee shall deliver an appropriate instrument evidencing such release upon receipt
of a request by the Company accompanied by an Officers’ Certificate and Opinion of Counsel
certifying as to the compliance with this Section 11.4.



Section 11.5. Immediate Payment.




          Each Guarantor agrees to make immediate payment to the Trustee on behalf of the Holders of all
Obligations due and owing or payable to the respective Holders upon receipt of a demand for payment
therefor by the Trustee to such Guarantor in writing.




Section 11.6. Waiver of Subrogation.




          Until all Obligations are paid in full, each Guarantor hereby irrevocably waives any claims or
other rights which it may now or hereafter acquire against the Company that arise from the
existence, payment, performance or enforcement of such Guarantor’s obligations under the Guarantee
and this Indenture, including, without limitation, any right of subrogation, reimbursement,
exoneration, indemnification, and any right to participate in any claim or remedy of any Holder
against the Company, whether or not such claim, remedy or right arises in equity, or under
contract, statute or common law, including, without limitation, the right to take or receive from
the Company, directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim or other rights. If any amount shall be paid
to any Guarantor in violation of the preceding sentence and the Notes shall not have been paid in
full, such amount shall have been deemed to have been paid to such Guarantor for the benefit of,
and held in trust for the benefit of, the Holders, and shall, subject to the provisions of Article
X hereof, forthwith be paid to the Trustee for the benefit of such Holders to be credited
and applied upon the Notes, whether matured or unmatured, in accordance with the terms of this
Indenture. Each Guarantor acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that the waiver set forth in this Section
11.6 is knowingly made in contemplation of such benefits.










 



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Section 11.7. Execution of Guarantee.




          To evidence their guarantee to the Holders set forth in this Article XI, the Guarantors hereby
agree to execute the Guarantee in substantially the form attached hereto as Exhibit C, which shall
be endorsed on each Note ordered to be authenticated and delivered by the Trustee. Each Guarantor
hereby agrees that its Guarantee set forth in this Article XI shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such Guarantee. Each such
Guarantee shall be signed on behalf of each Guarantor by one of its authorized officers prior to
the authentication of the Note on which it is endorsed, and the delivery of such Note by the
Trustee, after the authentication thereof hereunder, shall constitute due delivery of such
Guarantee on behalf of such Guarantor. Such signatures upon the Guarantee may be by manual or
facsimile signature of such officers and may be imprinted or otherwise reproduced on the Guarantee,
and in case any such officer who shall have signed the Guarantee shall cease to be such officer
before the Note on which such Guarantee is endorsed shall have been authenticated and delivered by
the Trustee or disposed of by the Company, such Note nevertheless may be authenticated and
delivered or disposed of as though the Person who signed the Guarantee had not ceased to be such
officer of the Guarantor.




Section 11.8. Waiver of Stay, Extension or Usury Laws.




          Each Guarantor covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law or any usury law or other law that would prohibit or forgive each such
Guarantor from performing its Guarantee as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance of this Indenture;
and (to the extent that it may lawfully do so) each such Guarantor hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.




ARTICLE XII.




SATISFACTION AND DISCHARGE




Section 12.1. Satisfaction and Discharge.




          This Indenture and the Security Documents will be discharged and will cease to be of further
effect as to all outstanding Notes (except as to surviving rights or registration of
transfer or exchange of the Notes, as expressly provided for in this Indenture) and the
Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture and the Security Document as to all outstanding Notes when:










 



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     (1) either:




     (a) all the Notes theretofore authenticated and delivered (except lost, stolen
or destroyed Notes which have been replaced or paid and Notes for whose payment
money has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust) have
been delivered to the Trustee for cancellation; or




     (b) all Notes not theretofore delivered to the Trustee for cancellation (1)
have become due and payable or (2) will become due and payable within one year, or
are to be called for redemption within one year, under arrangements reasonably
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company, and the Company has irrevocably
deposited or caused to be deposited with the Trustee funds in an amount sufficient
to pay and discharge the entire Indebtedness on the Notes not theretofore delivered
to the Trustee for cancellation, for principal of, premium, if any, and interest on
the Notes to the date of maturity or redemption, as the case may be, together with
irrevocable instructions from the Company directing the Trustee to apply such funds
to the payment thereof at maturity or redemption, as the case may be;




     (2) the Company has paid all other sums payable under the Indenture by the Company; and




     (3) the Company has delivered to the Trustee an officers’ certificate and an opinion of
counsel stating that all conditions precedent under the Indenture relating to the
satisfaction and discharge of this Indenture have been complied with.



          Notwithstanding the satisfaction and discharge of this Indenture, the Company’s obligations in
Sections 2.3, 2.4, 2.6, 2.7, 2.11, 7.7, 7.8, 14.2, 14.3 and 14.4, and the Trustee’s and Paying
Agent’s obligations in Section 12.2 shall survive until the Notes are no longer outstanding.
Thereafter, only the Company’s obligations in Section 7.7 shall survive.




Section 12.2. Application of Trust.




          All money deposited with the Trustee pursuant to Section 12.1 shall be held in trust and, at
the written direction of the Company, be invested prior to maturity in U.S. Government Obligations,
and applied by the Trustee in accordance with the provisions of the Notes and this Indenture, to
the payment, either directly or through any Paying Agent as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if any) and
interest for the payment of which money has been deposited with the Trustee; but such money need
not be segregated from other funds except to the extent required by law.










 



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ARTICLE XIII.




SECURITY




Section 13.1. Security Documents; Additional Collateral.





          (a) Security Documents. In order to secure the due and punctual payment of the
Obligations, the Company, the Guarantors, the Collateral Agent and the other parties thereto have
simultaneously with the execution of this Indenture entered or, in accordance with the provisions
of Section 4.25, this Article XIII and the provisions of the Security Agreement, will enter into
the Security Documents.




          (b) The Company shall, and shall cause each Restricted Subsidiary to, and each Restricted
Subsidiary shall, make all filings (including filings of continuation statements and amendments
to financing statements that may be necessary to continue the effectiveness of such financing
statements) and take all other actions as are necessary or required by the Security Documents to
maintain (at the sole cost and expense of the Company and its Restricted Subsidiaries) the
security interest created by the Security Documents in the Collateral (other than with respect to
any Collateral the security interest in which is not required to be perfected under the Security
Documents) as a perfected third priority security interest subject only to Permitted Liens.




          (c) Additional Collateral. With respect to assets acquired after the Issue Date (or
assets that cease to be Excluded Assets (as defined in the Security Agreement)), the Company or
applicable Guarantor will take the actions required by the Security Agreement.



Section 13.2. Recording, Registration and Opinions.




          The Company and the Guarantors shall furnish to the Trustee at least thirty (30) days prior to
the anniversary of the Issue Date in each year an Opinion of Counsel, dated as of such date, either
(i) (x) stating that, in the opinion of such counsel, such action has been taken with respect to
the recording, filing, re-recording, and refiling of this Indenture or the Security Documents, as
applicable, as are necessary to maintain the perfected Liens of the applicable Security Documents
securing the Obligations under applicable law to the extent required by the Security Documents
other than any action as described therein to be taken and such opinion may refer to prior Opinions
of Counsel and contain customary qualifications and exceptions and may rely on an Officers’
Certificate of the Company, and (y) stating that on the date of such Opinion of Counsel, all
financing statements, financing statement amendments and continuation statements have been or will
be executed and filed that are necessary, as of such date or promptly
thereafter and during the succeeding 12 months, fully to maintain the perfection of the
security interests of the Collateral Agent securing the Obligations thereunder and under the
Security Documents with respect to the Collateral and such Opinion of Counsel may contain customary
qualifications and exceptions and may rely on an Officers’ Certificate; provided that if
there is a required filing of a continuation statement or other instrument within such 12 month
period and









 



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such continuation statement or amendment is not effective if filed at the time of the
opinion, such opinion may so state and in that case the Company and the Guarantors shall cause a
continuation statement or amendment to be timely filed so as to maintain such Liens and security
interests securing Obligations or (ii) stating that, in the opinion of such counsel, no such action
is necessary to maintain such Liens or security interests.




Section 13.3. Releases of Liens on Collateral.




          The Liens securing the Notes and the Guarantees will automatically and without the need for
any further action by any Person be released:





          (a) in whole or in part, as applicable, as to all or any portion of property subject to such
Liens which has been taken by eminent domain, condemnation or other similar circumstances;




          (b) in whole upon:




     (i) satisfaction and discharge of this Indenture under Section 12.1 hereof; or




     (ii) a Legal Defeasance or Covenant Defeasance of this Indenture under Article
VIII hereof;




          (c) in part, as to any property that (i) is sold, transferred or otherwise disposed of by
the Company or any Guarantor (other than to the Company or another Guarantor) in a transaction
not prohibited by this Indenture at the time of such transfer or disposition or (ii) is owned or
at any time acquired by a Guarantor that has been released from its Guarantee, concurrently with
the release of such Guarantee;




          (d) in the case of Collateral with an aggregate fair market value of $5.0 million or less in
any fiscal year of the Company, upon receipt by the Trustee of an Officers’ Certificate stating
that (i) no Event of Default has occurred and is continuing, (ii) the Liens securing all First
Lien Obligations in such Collateral have been or are being released and (iii) the conditions set
forth in this clause (d) have been satisfied; and




          (e) in whole or in part, in accordance with the applicable provisions of the Intercreditor
Agreement.



Section 13.4. Form and Sufficiency of Release.




          In the event that any Lien is to be released pursuant to Section 13.3, and the Company or such
Guarantor requests the Collateral Agent to furnish a written disclaimer, release or quitclaim of
any interest in such property under the Security Documents, upon receipt of an Officers’
Certificate and Opinion of Counsel to the effect that such release complies with Section









 



-126-


13.3 and
specifying the provision in Section 13.3 pursuant to which such release is being made (upon which
the Trustee and Collateral Agent may exclusively and conclusively rely), the Collateral Agent shall
execute, acknowledge and deliver to the Company or such Guarantor such an instrument in the form
provided by the Company, and providing for release without recourse and shall take such other
action as the Company or such Guarantor may reasonably request and as necessary to effect such
release.




Section 13.5. Possession and Use of Collateral.




          Subject to the provisions of the Security Documents, the Company and the Guarantors shall have
the right to remain in possession and retain exclusive control of and to exercise all rights with
respect to the Collateral (other than as set forth in the Security Documents and this Indenture),
to operate, manage, develop, lease, use, consume and enjoy the Collateral (other than as set forth
in the Security Documents and this Indenture), to alter or repair any Collateral so long as such
alterations and repairs do not impair the Lien of the Security Documents thereon, and to collect,
receive, use, invest and dispose of the reversions, remainders, interest, rents, lease payments,
issues, profits, revenues, proceeds and other income thereof.




Section 13.6. Purchaser Protected.




          No purchaser or grantee of any property or rights purporting to be released shall be bound to
ascertain the authority of the Collateral Agent to execute the release or to inquire as to the
existence of any conditions herein prescribed for the exercise of such authority so long as the
conditions set forth in Section 13.4 have been satisfied.




Section 13.7. Authorization of Actions To Be Taken by the Collateral Agent
Under the Security Documents.




          The Holders of Notes agree that the Collateral Agent shall be entitled to the rights,
privileges, protections, immunities, indemnities and benefits provided to the Collateral Agent by
the Security Documents. Furthermore, each Holder of a Note, by accepting such Note, agrees,
acknowledges and consents to the terms (including, but not limited to, waivers, representations and
covenants) of and authorizes and directs the Trustee (in each of its capacities) and the Collateral
Agent to enter into and perform the Security Documents in each of its capacities thereunder.




Section 13.8. Authorization of Receipt of Funds by the Trustee Under the
Security Agreement.




          The Trustee is authorized to receive any funds for the benefit of Holders distributed under
the Security Documents to the Trustee, to apply such funds as provided in Section 6.12.










 



-127-




Section 13.9. Powers Exercisable by Receiver or Collateral Agent.




          In case the Collateral shall be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article XIII upon the Company or any Guarantor, as
applicable, with respect to the release, sale or other disposition of such property may be
exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall
be deemed the equivalent of any similar instrument of the Company or any Guarantor, as applicable,
or of any officer or officers thereof required by the provisions of this Article XIII.




ARTICLE XIV.




MISCELLANEOUS




Section 14.1. Trust Indenture Act Controls.




          If any provision hereof limits, qualifies or conflicts with a provision of the TIA or another
provision that is required or deemed under such Act to be part of and govern this Indenture, the
latter provision shall control. If any provision of this Indenture modifies or excludes any
provision of the TIA that may be so modified or excluded or if the Indenture is not required to
comply with the TIA, the latter provision shall be deemed to apply to this Indenture as so modified
or to be excluded, as the case may be.




Section 14.2. Notices.




          Any notice or communication by the Company or the Trustee to others is duly given if in
writing and delivered in Person or mailed by first class mail (registered or certified, return
receipt requested), telex, telecopier or overnight air courier guaranteeing next day delivery, to
the others’ address:



If to the Company:



Dole Food Company, Inc.

One Dole Drive

Westlake Village, California 91362

Attention: General Counsel

Fax: 818-879-6754



With a copy to:



Paul, Hastings, Janofsky & Walker LLP

695 Town Center Drive

Costa Mesa, California 92626-1924

Attention: Peter J. Tennyson, Esq.

Fax: (714) 979-1921










 



-128-



If to the Trustee:



U.S. Bank National Association

Attention: Corporate Trust Services-Raymond Haverstock

EP-MS-WSBC

60 Livingston Avenue, St. Paul, MN 55107-1419

Fax: (651) 495-8097




          The Company or the Trustee, by notice to the others (and to each Representative of Guarantor
Senior Debt known to it to be then outstanding) may designate additional or different addresses for
subsequent notices or communications.




          All notices and communications (other than those sent to Holders) shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.




          Any notice or communication to a Holder shall be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.




          If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the address receives it.




          If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee
and each Agent at the same time.




Section 14.3. Communication by Holders of Notes with Other Holders of
Notes.




          Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA § 312(c).




Section 14.4. Certificate and Opinion as to Conditions Precedent.




          Upon any request or application by the Company and/or any Guarantor to the Trustee to take any
action under this Indenture, the Company and/or any Guarantor shall furnish to the Trustee:










 



-129-





          (a) an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have been satisfied; and




          (b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of such counsel, all such conditions precedent and covenants have
been satisfied.



Section 14.5. Statements Required in Certificate or Opinion.




          Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply
with the provisions of TIA § 314(e) and shall include:





          (a) a statement that the Person making such certificate or opinion has read such covenant or
condition;




          (b) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;




          (c) a statement that, in the opinion of such Person, he or she has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been satisfied; and




          (d) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.



Section 14.6. Rules by Trustee and Agents.




          The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.




Section 14.7. No Personal Liability of Directors, Officers, Employees and
Stockholders.




          No past, present or future director, officer, employee, incorporator, agent, stockholder or
Affiliate of the Company, as such, shall have any liability for any obligations of the Company
under the Notes, the Security Documents or this Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. No past, present or future director, officer,
employee, incorporator, agent, stockholder or Affiliate of any of the Guarantors, as such, shall
have any liability for any obligations of the Guarantors under the Guarantees, the Security
Documents or this Indenture or for any claim based on, in respect of, or by reason of, such









 



-130-


obligations or their creation. Each Holder of Notes and Guarantees by accepting a Note and a
Guarantee waives and releases all such liabilities. The waiver and release are part of the
consideration for issuance of the Notes and the Guarantees. Such waiver may not be effective to
waive liabilities under the federal securities law and it is the view of the Commission that such a
waiver is against public policy.




Section 14.8. Governing Law; Submission to Jurisdiction; Waiver of Jury
Trial.




          THIS INDENTURE, THE SECURITY AGREEMENT, THE PLEDGE AGREEMENT, THE INTERCREDITOR AGREEMENT, THE
GUARANTEES AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. THE
COMPANY AND EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITY AGREEMENT, THE PLEDGE AGREEMENT, THE
INTERCREDITOR AGREEMENT, THE GUARANTEES AND THE NOTES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE
COMPANY AND EACH GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THAT IT MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY
HOLDER OF THE NOTES TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY OR ANY GUARANTOR IN ANY OTHER JURISDICTION.
CERTAIN MORTGAGES AND OTHER SECURITY DOCUMENTS WILL BE GOVERNED BY THE LAWS OF OTHER STATES.




Section 14.9. No Adverse Interpretation of Other Agreements.




          This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.










 



-131-




Section 14.10. Successors.




          All agreements of the Company in this Indenture and the Notes shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.




Section 14.11. Severability.




          In case any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.




Section 14.12. Counterpart Originals.




          The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.




Section 14.13. Table of Contents, Headings, Etc.




          The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this
Indenture, which have been inserted for convenience of reference only, are not to be considered a
part of this Indenture and shall in no way modify or restrict any of the terms or provisions
hereof.




Section 14.14. Intercreditor Agreement.




          The Security Documents, the Trustee, the Collateral Agent and the Holders are subject to and
bound by the terms of the Intercreditor Agreement.




[Signatures on following page]










 



-132-




SIGNATURES




	 	 	 	 	 
	 	DOLE FOOD COMPANY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION, as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 









 



-133-


	 	 	 	 	 
	 	THE GUARANTORS NAMED IN

SCHEDULE A ATTACHED HERETO

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 















 





SCHEDULE A




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






 









 






	 	 	 	 	 
	 	 	Jurisdiction of	 
	Company	 	Organization	 
	 
	 	 	 	 
	Standard Fruit Company
	 	Delaware
	Sun Country Produce, Inc.
	 	Delaware
	West Foods, Inc.
	 	Delaware
	Cool Advantage, Inc.
	 	Florida
	Cool Care, Inc.
	 	Florida
	Saw Grass Transport, Inc.
	 	Florida
	Blue Anthurium, Inc.
	 	Hawaii
	Cerulean, Inc.
	 	Hawaii
	Dole Diversified, Inc.
	 	Hawaii
	Dole Land Company, Inc.
	 	Hawaii
	Dole Packaged Foods Corporation
	 	Hawaii
	La Petite d’Agen, Inc.
	 	Hawaii
	M K Development, Inc.
	 	Hawaii
	Malaga Company, Inc.
	 	Hawaii
	Muscat, Inc.
	 	Hawaii
	Oahu Transport Company, Limited
	 	Hawaii
	Wahiawa Water Company, Inc.
	 	Hawaii
	Zante Currant, Inc.
	 	Hawaii
	Diversified Imports Co.
	 	Nevada
	Dole Assets, Inc.
	 	Nevada
	Dole Fresh Fruit Company
	 	Nevada
	Dole Holdings, Inc.
	 	Nevada
	Dole Logistics Services, Inc.
	 	Nevada
	Dole Ocean Cargo Express, Inc.
	 	Nevada
	Dole Ocean Liner Express, Inc.
	 	Nevada
	Renaissance Capital Corporation
	 	Nevada
	Sun Giant, Inc.
	 	Nevada
	DNW Services Company
	 	Washington
	Pacific Coast Truck Company
	 	Washington
	Pan-Alaska Fisheries, Inc.
	 	Washington






-2-









 






EXHIBIT A




[FACE OF NOTE]




DOLE FOOD COMPANY, INC.




13 7/8%
 SENIOR NOTE DUE 2014




	 	 	 	 	 
	 

	 	CUSIP/ISIN No. 

	No.                     

	 	$







Interest Payment Dates: March 15 and September 15

Record Dates: March 1 and September 1




          DOLE FOOD COMPANY, INC., a Delaware corporation (the “Company,” which term includes
any successor corporation under the indenture hereinafter referred to ), for value received,
promises to pay to ________________________________________________ or registered assigns, the principal sum of
__________________ Dollars on March 15, 2014.




          Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as set forth at this
place.



          Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Note shall not be entitled to any benefits under
the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose.



          IN WITNESS WHEREOF, the Company has caused this Note to be duly executed under its corporate
seal.



[SEAL]




Dated: [                    ]




	 	 	 	 	 
	 	DOLE FOOD COMPANY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



A-1









 






	 	 	 	 	 



This is one of the Notes referred to

in the within-mentioned Indenture:




U.S. Bank National Association

as Trustee




	 	 	 	 	 
	 	 	 
	By:  	 	 	 
	 	Authorized Signatory 	 	 
	 	 	 	 



A-2









 






	 	 	 	 	 



[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]




[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]




[Insert the OID Note Legend, if applicable pursuant to the provisions of the Indenture]




(Back of Note)




13 7/8% Senior Notes due 2014





          Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.



          1. Interest. The Company promises to pay interest on the principal amount of this
Note at the rate of 13 7/8% per annum from the date of original issuance until maturity and shall pay
the Additional Interest pursuant to Section 4 of the Registration Rights Agreement referred below.
The Company will pay interest and Additional Interest semi-annually on March 15 and September 15
of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each
an “Interest Payment Date”). Interest on the Note will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of issuance;
provided that if there is no existing Default in the payment of interest, and if this Note
is authenticated between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date;
provided, further, that the first Interest Payment Date with respect to a Note
issued on the Issue Date shall be September 15, 2009. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue payments of the
principal, Purchase Price and Redemption Price of this Note from time to time on demand at a rate
that is 1% per annum in excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Additional Interest, if any, (without regard to any applicable grace periods) hereon
from time to time on demand at the same rate to the extent lawful. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.



          2. Method of Payment. The Company will pay interest on the Notes (except defaulted
interest) and Additional Interest, if any, to the Persons who are registered Holders of Notes at
the close of business on March 1 and September 1 next preceding the Interest Payment Date, even if
such Notes are canceled after such record date and on or before such Interest Payment Date, except
as provided in Section 2.12 of the Indenture with respect to defaulted interest. Any such
installment of interest or Additional Interest, if any, not punctually paid or duly provided for
shall forthwith cease to be payable to the registered Holders on such Interest Payment Date, and
may be paid to the registered Holders at the close of business on a special interest payment date
to be fixed by the Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Holders not less than 10 days prior to such special interest payment date,
or may be paid at any time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The Notes will be payable as to
principal, Redemption Price, Purchase Price, interest and Additional Inter-



A-3









 







est, if any, by wire transfer of immediately available funds. Such payment shall be in
such coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts.



          3. Paying Agent and Registrar. Initially, U.S. Bank National Association, the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company may act in any such capacity.



          4. Indenture and Guarantees. The Company issued $349,903,000 in aggregate principal
amount of the Notes under an Indenture dated as of March 18, 2009 (the “Indenture”) among
the Company, the Guarantors and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S.C. Code §§ 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. The Notes are general
obligations of the Company. Payment on each Note is guaranteed on a senior subordinated basis,
jointly and severally, by the Guarantors pursuant to Article XI of the Indenture.



          The Guarantee of any Guarantor is subordinated in right of payment, in the manner and to the
extent set forth in the Indenture, to the prior payment in full in cash or Cash Equivalents of all
Guarantor Senior Debt of such Guarantor, whether outstanding on the date of the Indenture or
thereafter created, incurred, assumed or guaranteed. Each Holder by his acceptance hereof agrees
to be bound by such provisions and authorizes and expressly directs the Trustee, on his behalf, to
take such action as may be necessary or appropriate to effectuate the subordination provided for in
the Indenture and appoints the Trustee his attorney-in-fact for such purposes.



          5. Optional Redemption. The Company may redeem any or all of the Notes at any time on
or after March 15, 2012, upon not less than 30 nor more than 60 days’ prior notice in amounts of
$1,000 or an integral multiple thereof at the Redemption Prices (expressed as a percentage of the
principal amount) set forth below, if redeemed during the period beginning on the dates indicated
below:



	 	 	 	 	 
	Year	 	Redemption Price
	 
	 	 	 	 
	March 15, 2012
	 	 	113.875	%
	March 15, 2013
	 	 	106.937	%
	September 15, 2013 and thereafter
	 	 	100.000	%





in each case together with accrued and unpaid interest and Additional Interest, if any, to the
Redemption Date.




          If less than all the Notes are to be redeemed, the Trustee will select the particular Notes or
portions thereof to be redeemed by lot, pro rata or by any other method the Trustee shall deem fair
and reasonable.



A-4









 





          6. Optional Redemption Upon Equity Offerings. In the event the Company completes one
or more Equity Offerings on or before March 15, 2012, the Company, at its option, may use the net
cash proceeds from any such Equity Offering to redeem up to 35% of the original principal amount of
the Notes (a “Special Redemption”) at a Redemption Price of 113.875% of the principal
amount, together with accrued and unpaid interest and Additional Interest (if any), to the date of
redemption, provided, however, that at least 65% of the original principal amount of the Notes
initially issued under the Indenture will remain outstanding immediately after each such
redemption; and provided, further, that each such redemption shall occur within 90 days after the
date of the closing of the applicable Equity Offering. If less than all the Notes are to be
redeemed, the Trustee will select the particular Notes or portions thereof to be redeemed by lot,
only on a pro rata basis or on as nearly a pro rata basis as is practicable (subject to DTC
procedures).



          7. Mandatory Redemption. Except as set forth in Paragraph 9 below with respect to
repurchases of Notes in certain events, the Company shall not be required to make mandatory
redemption payments with respect to the Notes.



          8. Notice of Redemption. Subject to the provisions of the Indenture, a notice of
redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to
each Holder whose Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the
Notes held by a Holder are to be redeemed. On and after the redemption date interest ceases to
accrue on Notes or portions thereof called for redemption.



          9. Repurchase at Option of Holder.



          (a) Upon the occurrence of certain events, the Company may be required to commence an Offer to
Purchase pursuant to a Change of Control Offer, a Net Proceeds Offer or an Event of Loss Offer.



          (b) Holders of the Notes that are the subject of a Change of Control Offer, a Net Proceeds
Offer or an Event of Loss Offer will receive notice of the Change of Control Offer, Net Proceeds
Offer or Event of Loss Offer from the Company prior to any related Purchase Date and may elect to
have such Notes purchased by completing the form titled “Option of Holder to Elect Purchase”
appearing below.



          10. Denominations, Transfer, Exchange. The Notes are in registered form without
coupons in denominations of $1,000 and integral multiples of $1,000. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee
may require a Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the transfer of any Note or
portion of a Note selected for redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, it need not exchange or register the transfer of any Notes for a period of
15 days before a selection of Notes to be redeemed or during the period between a record date and
the corresponding Interest Payment Date.



A-5









 





          11. Persons Deemed Owners. The registered Holder of a Note may be treated as its
owner for all purposes.



          12. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture,
the Security Documents and the Notes may be amended or supplemented with the consent of the Holders
of at least a majority in principal amount of the then outstanding Notes, and any existing default
or compliance with any provision of the Indenture or the Notes may be waived with the consent of
the Holders of a majority in principal amount of the then outstanding Notes. Without the consent
of any Holder of a Note, the Indenture, the Security Documents and the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide for the assumption of the Company’s
obligations to Holders of the Notes in case of a merger or consolidation, to make any change that
would provide any additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder in any material respect,
if applicable, to comply with the requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act, to add or release the Guarantees of
Guarantors in compliance with the Indenture and to add or release assets as Collateral in
accordance with the Indenture and the Security Documents (including to eliminate any assets
purported to be secured thereby which are not actually owned by the Company or the Guarantors and
were not owned by the Company or the Guarantors at the time such Security Document was entered
into), to secure additional First Lien Obligations permitted to be incurred pursuant to the
Indenture by Liens ranking prior to the Liens securing the Notes and the Guarantees and securing
additional Pari Passu Junior Lien Obligations permitted to be incurred pursuant to the Indenture by
Liens ranking pari passu with the Liens securing the Notes and the Guarantees, or to make any
change that would provide any additional rights or benefits to the Holders of the Notes or that
does not adversely affect the legal rights hereunder of any Holder of the Notes in any material
respect or to make certain corrective amendments to the Security Documents.



          13. Defaults and Remedies. Events of Default include: (1) the failure to pay
interest on any Notes when the same becomes due and payable and the default continues for a period
of 30 days (whether or not such payment shall be prohibited by the subordination provisions of the
Indenture); (2) the failure to pay the principal of any Notes when such principal becomes due and
payable, at maturity, upon redemption or otherwise (including the failure to make a payment to
purchase Notes tendered pursuant to a Change of Control Offer or a Net Proceeds Offer) (whether or
not such payment shall be prohibited by the subordination provisions of the Indenture); (3) a
default in the observance or performance of any other covenant or agreement contained in the
Indenture or the Security Documents which default continues for a period of 45 days after the
Company receives written notice specifying the default (and demanding that such default be
remedied) from the Trustee or the Holders of at least 25% of the outstanding principal amount of
the Notes (except in the case of a default with respect to Section 5.1 of the Indenture, which will
constitute an Event of Default with such notice requirement but without such passage of time
requirement); (4) the failure to pay at final maturity (giving effect to any applicable grace
periods and any extensions thereof) the stated principal amount of any Indebtedness of the Company
or any Restricted Subsidiary of the Company, or the acceleration of the final stated maturity of
any such Indebtedness (which acceleration is not rescinded, annulled or otherwise cured with-



A-6









 







in 30 days of receipt by the Company or such Restricted Subsidiary of notice of any such
acceleration) if the aggregate principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay principal at final stated
maturity or which has been accelerated (in each case with respect to which the 30-day period
described above has elapsed), aggregates $25.0 million or more at any time; provided that
if such failure to pay shall be remedied, waived or extended within 30 days of receipt by the
Company or such Restricted Subsidiary of notice of such acceleration, then any Default or Event of
Default hereunder shall be deemed likewise to be remedied, waived or extended without further
action by the Company; (5) one or more judgments in an aggregate amount in excess of $25.0 million
shall have been rendered against the Company or any of its Restricted Subsidiaries and such
judgments remain undischarged, unpaid or unstayed for a period of 60 days after such judgment or
judgments become final and non-appealable; provided, however, that the rendering of
any such judgment(s) shall not be an Event of Default under this clause (5) unless (i) the Company
and its Restricted Subsidiaries which are subject to the order, as of the date of the issuance of
such judgment(s), have at least $25.0 million in net assets located in such court’s jurisdiction or
(ii) a final and non-appealable order enforcing such judgment(s) is entered by a court of competent
jurisdiction in a jurisdiction where the Company and its Restricted Subsidiaries subject to the
order, as of the date of the entry of such order of enforcement, have at least $25.0 million in net
assets located in such jurisdiction; (6) certain events of bankruptcy affecting the Company or any
of its Significant Subsidiaries; (7) any Guarantee of a Significant Subsidiary ceases to be in full
force and effect or any Guarantee of a Significant Subsidiary is declared to be null and void and
unenforceable or any Guarantee of a Significant Subsidiary is found to be invalid or any Guarantor
that is a Significant Subsidiary denies in writing its liability under its Guarantee (other than by
reason of release of such Guarantor in accordance with the terms of the Indenture) or the Company
or any Guarantor that is a Significant Subsidiary denies in writing the validity of the Liens
created pursuant to the Security Documents (other than by reason of a release of such Liens in
accordance with the terms of the Indenture); or (8) any Lien purported to be created by any
Security Document shall cease to be a valid and enforceable Lien except in accordance with the
Security Documents and such failure continues for a period of 45 days after the Company receives
written notice specifying the failure (and demanding that such failure be remedied) from the
Trustee or the Holders of at least 25% of the outstanding principal amount of the Notes. If any
Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes may declare all the Notes to be due and payable immediately.
Upon any such declaration, the entire principal amount of, and accrued and unpaid interest and
Additional Interest, if any, on the Notes shall become immediately due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency, all outstanding Notes will become due and payable without further action
or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of the Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to payment on any Note) if it determines that withholding notice is in
their interest. The Holders of a majority in principal amount of the Notes may waive any existing
or past Default or Event of Default under the Indenture, and its consequences, except a default in
the payment of the principal of, or interest on any Notes. The Company is required to deliver to
the Trustee annually a statement regarding compliance with the Indenture,



A-7









 







and the Company is required upon becoming aware of any Default or Event of Default, to deliver
to the Trustee a statement specifying such Default or Event of Default.



          14. Trustee Dealings with Company. Subject to certain limitations, the Trustee under
the Indenture, in its individual or any other capacity, may become owner or pledge of Notes and may
otherwise deal with the Company or its Affiliates as if it were not Trustee.



          15. Security Documents and Intercreditor Agreement. The obligations of the Company
and the Guarantors under the Indenture, the Notes and the Guarantees are secured by a third Lien on
the Collateral pursuant to the Security Documents. The provisions of the Indenture and the
Security Documents are subject to the Intercreditor Agreement.



          16. No Recourse Against Others. No past, present or future director, officer,
employee, incorporator or stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Notes or the Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives
and releases all such liability. The waiver and release are part of the consideration for the
issuance of the Notes.



          17. Authentication. This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.



          18. Abbreviations. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).



          19. Additional Rights of Holders of Restricted Global Notes and Restricted Definitive
Notes. In addition to the rights provided to Holders of Notes under the Indenture, Holders of
Restricted Global Notes and Restricted Definitive Notes will have, subject to the terms thereof,
all the rights set forth in the Registration Rights Agreement dated as of March 18, 2009, by and
among the Company, the Guarantors and the Initial Purchasers, as such agreement may be amended,
modified or supplemented from time to time. And, with respect to any Additional Notes, Holders of
Restricted Global Notes and Restricted Definitive Notes will have, subject to the terms thereof,
the rights set forth in one or more registration rights agreements, if any, by the Company, the
Guarantors and the other parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Company to the purchasers of
Additional Notes to register such Additional Notes under the Securities Act (collectively, the
“Registration Rights Agreement”).



          20. Discharge Prior to Maturity. If the Company deposits with the Trustee or Paying
Agent cash or U.S. Government Obligations sufficient to pay the principal or Redemption Price of,
and interest and Additional Interest, if any, on, the Notes to maturity or a specified Redemption
Date and satisfies certain conditions specified in the Indenture, the Company will be discharged
from the Indenture, except for certain Sections thereof.



A-8









 





          21. Governing Law. The Indenture, the Security Agreement, the Pledge Agreement, the
Intercreditor Agreement, the Guarantees and this Note shall be governed by and construed in
accordance with the laws of the State of New York but without giving effect to applicable
principles of conflicts of law to the extent that the application of the law of another
jurisdiction would be required thereby. Each of the Company and each Guarantor hereby irrevocably
submits to the jurisdiction of any New York state court sitting in the Borough of Manhattan in the
City of New York or any Federal court sitting in the Borough of Manhattan in the City of New York
in respect of any suit, action or proceeding arising out of or relating to the Indenture, the
Security Agreement, the Pledge Agreement, the Intercreditor Agreement, the Guarantees and the
Notes, and irrevocably accept for itself and in respect of its property, generally and
unconditionally, jurisdiction of the aforesaid courts. Each of the Company and each Guarantor
irrevocably waives, to the fullest extent that it may effectively do so under applicable law, trial
by jury and any objection which it may now or hereafter have to the laying of the venue of any such
suit, action or proceeding brought in any such court and any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum. Nothing herein
shall affect the right of the Trustee or any Holder of the Notes to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed against the Company
or any Guarantor in any other jurisdiction.



          22. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP and/or ISIN or other
similar numbers to be printed on the Notes and the Trustee may use CUSIP and/or ISIN or other
similar numbers in notices of redemption as a convenience to Holders. No representation is made as
to the correctness or accuracy of such numbers either as printed on the Notes or as contained in
any notice of redemption or repurchase and reliance may be placed only on the other identification
numbers placed thereon.



          The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture. Request may be made to:



Dole Food Company, Inc.

One Dole Drive

Westlake Village, CA 91362

Attention: General Counsel




A-9









 





Assignment Form




          To assign this Note, fill in the form below:



(I) or (we) assign and transfer this Note to:
_______________________________________________________________




(Insert assignee’s legal name) 




 




(Insert assignee’s soc. sec. or tax I.D. no.)




 





 





 





 





(Print or type assignee’s name, address and zip code)



and
irrevocably appoint                                                                            
                                                                                                
to transfer this Note on the books of the Company. The agent may substitute another to act for
him.




Date:
________________




	 	 	 	 	 
	 

	 	Your Signature:	 	 
	 

	 	 	 	 
	 

	 	 	 	(Sign exactly as your name appears on the face of this Note)






Signature Guarantee*:
_________________________






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).




A-10









 










Option of Holder to Elect Purchase




          If you wish to elect to have this Note purchased by the Company pursuant to Section 4.10, 4.15
or 4.24 of the Indenture, check the box below:



o     Section 4.10




o     Section 4.15




o     Section 4.24




          If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.10, 415 or 4.24 of the Indenture, state the amount you elect to have purchased:



$___________




Date:
__________________




	 	 	 	 	 	 	 
	 

	 	Your Signature:	 	 	 	 
	 	 	 	 	 
	 	 	 	 	(Sign exactly as your name appears on the face of this Note)
	 	 	 	 	 	 	 
	 	 	Tax Identification No.:	 
	 

	 	 	 	 	 





Signature Guarantee*:
______________________






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).






A-11











 





Schedule of Exchanges of Interests in the Global Note




     The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an
interest in this Global Note, have been made:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Principal Amount	 	Signature of
	 	 	 	 	Amount of decrease	 	Amount of increase in	 	of this Global Note	 	authorized officer
	 	 	 	 	in Principal Amount	 	Principal Amount	 	following such	 	of Trustee or
	Date of Exchange	 	of this Global Note	 	of this Global Note	 	decrease (or increase)	 	Custodian





A-12









 






EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER




Dole Food Company, Inc.

One Dole Drive

Westlake Village, CA 91362

Attention: General Counsel




U.S. Bank National Association

Attention: Corporate Trust Services-Raymond Haverstock

EP-MS-WSBC

60 Livingston Avenue, St. Paul, MN 55107-1419

Fax: (651) 495-8097




     Re: 13 7/8% Senior Secured Guaranteed Notes due 2014



     Reference is hereby made to the Indenture, dated as of March 18, 2009 (the
“Indenture”), among Dole Food Company, Inc., as issuer (the “Company”), each of the
Guarantors and U.S. Bank National Association, as Trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.



                                              (the “Transferor”) owns and proposes to transfer the Note[s] or
interest in such Note[s] specified in Annex A hereto, in the principal amount of $                     in
such Note[s] or interests (the “Transfer”), to                                                              (the
“Transferee”), as further specified in Annex A hereto. In connection with the Transfer,
the Transferor hereby certifies that:



[CHECK ALL THAT APPLY]




          1. o Check if Transferee will take delivery of a beneficial interest in the 144A Global
Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being effected
pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the
“Securities Act”), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Note for its own account,
or for one or more accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a “qualified institutional buyer” within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted
Definitive Note and in the Indenture and the Securities Act.



B-1









 





          2. o
Check if Transferee will take delivery of a beneficial interest in the Regulation S
Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a
Person in the United States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities market and neither
such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with
a buyer in the United States, (ii) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the
Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of
a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed
on the Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the
Securities Act.



          3. o
Check and complete if Transferee will take delivery of a beneficial interest in a
Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or
Regulation S. The Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws
of any state of the United States, and accordingly the Transferor hereby further certifies that
(check one):




     (a)
o such Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act;



or





     (b)
o such Transfer is being effected to the Company or a Subsidiary thereof;



or





     (c)
o such Transfer is being effected pursuant to an effective registration statement
under the Securities Act and in compliance with the prospectus delivery requirements of the
Securities Act.



          4. o
Check if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Note or of an Unrestricted Definitive Note.




     (a)
o Check if Transfer is pursuant to Rule 144. (i) The Transfer is being
effected pursuant to and in accordance with Rule 144 under the Securities Act and in



B-2









 







compliance with the transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any state of the United States and (ii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will no longer be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.




     (b)
o Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act
and in compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture.




     (c)
o Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is
being effected pursuant to and in compliance with an exemption from the registration
requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in
compliance with the transfer restrictions contained in the Indenture and any applicable blue
sky securities laws of any State of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will not be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive
Notes and in the Indenture.



          This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.



	 	 	 	 	 
	 	 	 
	 	
 	 
	 	[Insert Name of Transferor] 	 
	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 	 	 
	Dated:

	 	 
	 	 
	 	 
	 

	 	 	 	 	 	 





B-3









 






ANNEX A TO CERTIFICATE OF TRANSFER





	 	1.	 	The Transferor owns and proposes to transfer the following:





[CHECK ONE OF (a) OR (b)]





	 	(a)	 	o a beneficial interest in the:






	 	(i)	 	o 144A Global Note (CUSIP                     ), or
	 
	 	(ii)	 	o Regulation S Global Note (CUSIP                     ), or






	 	(b)	 	o a Restricted Definitive Note.
	 
	 	2.	 	After the Transfer the Transferee will hold:





[CHECK ONE]





	 	(a)	 	o a beneficial interest in the:






	 	(i)	 	o 144A Global Note (CUSIP                     ), or
	 
	 	(ii)	 	o Regulation S Global Note (CUSIP                     ), or
	 
	 	(iii)	 	o Unrestricted Global Note (CUSIP                     ); or






	 	(b)	 	o a Restricted Definitive Note; or
	 
	 	(c)	 	o an Unrestricted Definitive Note,





          in accordance with the terms of the Indenture.



B-4









 





EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE




Dole Food Company, Inc.

One Dole Drive

Westlake Village, CA 91362

Attention: General Counsel



U.S. Bank National Association

Attention: Corporate Trust Services-Raymond Haverstock

EP-MS-WSBC

60 Livingston Avenue, St. Paul, MN 55107-1419

Fax: (651) 495-8097




     Re: 13 7/8% Senior Secured Guaranteed Notes due 2014



(CUSIP                     )




     Reference is hereby made to the Indenture, dated as of March 18, 2009 (the
“Indenture”), among Dole Food Company, Inc., as issuer (the “Company”), each of the
Guarantors and U.S. Bank National Association, as Trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.



                                              (the “Owner”) owns and proposes to exchange the Note[s] or
interest in such Note[s] specified herein, in the principal amount of $                     in such Note[s]
or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies
that:



          1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note



          (a) o
Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial
interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial
interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance
with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not required in order
to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted
Global Note is being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.



C-1









 





          (b) o
Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted
Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a
Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.



          (c) o
Check if Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not required in order
to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired
in compliance with any applicable blue sky securities laws of any state of the United States.



          (d) o
Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In
connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the
Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.



          2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes



          (a) o
Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted
Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a
Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account
without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.



C-2









 





          (b) o
Check if Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note
for a beneficial interest in the [CHECK ONE]
o 144A Global Note,
o Regulation S Global Note with an
equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in
accordance with the Securities Act, and in compliance with any applicable blue sky securities laws
of any state of the United States. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note
and in the Indenture and the Securities Act.



          This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.



	 	 	 	 	 
	 	 	 
	 	
 	 
	 	[Insert Name of Transferor] 	 
	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 	 	 
	Dated:

	 	 
	 	 
	 	 
	 

	 	 	 	 	 	 





C-3









 






EXHIBIT D




GUARANTEE




          For value received, the undersigned hereby unconditionally guarantees, as principal obligor
and not only as a surety, to the Holder of this Note the cash payments in United States dollars of
principal of, premium, if any, and interest on this Note (and including Additional Interest payable
thereon) in the amounts and at the times when due and interest on the overdue principal, premium,
if any, and interest, if any, of this Note, if lawful, and the payment or performance of all other
Obligations of the Company under the Indenture (as defined below) or the Note, to the Holder of
this Note and the Trustee, all in accordance with and subject to the terms and limitations of this
Note, Article XI of the Indenture, the subordination provisions of Article X of the Indenture and
this Guarantee. This Guarantee will become effective in accordance with Article XI of the
Indenture and its terms shall be evidenced therein. The validity and enforceability of this
Guarantee shall not be affected by the fact that it is not affixed to any particular Note.
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the
Indenture dated as of March 18, 2009, among Dole Food Company, Inc., a Delaware corporation, as
issuer (the “Company”), each of the Guarantors named therein and U.S. Bank National Association, as
trustee (the “Trustee”) (as amended or supplemented, the “Indenture”).



          THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. Each Guarantor
hereby agrees to submit to the jurisdiction of the courts of the State of New York in any action or
proceeding arising out of or relating to this Guarantee.



          This Guarantee is subject to release upon the terms set forth in the Indenture.



	 	 	 	 	 
	 	[GUARANTOR]

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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