exv10w2






			
	EXHIBIT 10.2
	 	AS AMENDED BY AMENDMENT NO. 3






 





CREDIT AGREEMENT




among



DOLE FOOD COMPANY, INC.

as BORROWER,



VARIOUS LENDERS



and



DEUTSCHE BANK AG NEW YORK BRANCH,

as ADMINISTRATIVE AGENT



 





Dated as of April 12, 2006,

as amended on March 18, 2009,

as amended on October 26, 2009,

as amended on March 2, 2010



 





WELLS FARGO CAPITAL FINANCE, LLC

and

BANK OF AMERICA, N.A.,

as CO-SYNDICATION AGENTS,



THE BANK OF NOVA SCOTIA

COBANK, ACB

and

U.S. BANK NATIONAL ASSOCIATION,

as CO-DOCUMENTATION AGENTS



and



DEUTSCHE BANK SECURITIES INC



WELLS FARGO CAPITAL FINANCE, LLC



and



BANC OF AMERICA SECURITIES LLC,

as JOINT LEAD ARRANGERS AND JOINT BOOK RUNNING MANAGERS



 





 









 








TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page
	SECTION 1. Definitions and Accounting Terms
	 	 	1	 
	 
	 	 	 	 
	1.01. Defined Terms
	 	 	1	 
	 
	 	 	 	 
	SECTION 2. Amount and Terms of Credit
	 	 	42	 
	 
	 	 	 	 
	2.01. The Commitments
	 	 	42	 
	2.02. Minimum Amount of Each Borrowing
	 	 	44	 
	2.03. Notice of Borrowing
	 	 	44	 
	2.04. Disbursement of Funds
	 	 	45	 
	2.05. Notes
	 	 	47	 
	2.06. Conversions
	 	 	47	 
	2.07. Pro Rata Borrowings
	 	 	48	 
	2.08. Interest
	 	 	48	 
	2.09. Interest Periods
	 	 	49	 
	2.10. Increased Costs, Illegality, etc.
	 	 	50	 
	2.11. Compensation
	 	 	53	 
	2.12. Change of Lending Office
	 	 	53	 
	2.13. Replacement of Lenders
	 	 	53	 
	2.14. Incremental Commitments
	 	 	55	 
	2.15. Revolving Loans Refunding
	 	 	56	 
	 
	 	 	 	 
	SECTION 3. Letters of Credit
	 	 	57	 
	 
	 	 	 	 
	3.01. Letters of Credit
	 	 	57	 
	3.02. Maximum Letter of Credit Outstandings; Final Maturities
	 	 	58	 
	3.03. Letter of Credit Requests; Minimum Stated Amount
	 	 	58	 
	3.04. Letter of Credit Participations
	 	 	59	 
	3.05. Agreement to Repay Letter of Credit Drawings
	 	 	61	 
	3.06. Increased Costs
	 	 	62	 
	 
	 	 	 	 
	SECTION 4. Commitment Commission; Fees; Reductions of Commitment
	 	 	62	 
	 
	 	 	 	 
	4.01. Fees
	 	 	62	 
	4.02. Voluntary Termination of Unutilized Revolving Loan Commitments
	 	 	63	 
	4.03. Mandatory Reduction of Commitments
	 	 	64	 
	4.04. Fees to Revolving Participants
	 	 	64	 
	 
	 	 	 	 
	SECTION 5. Prepayments; Payments; Taxes
	 	 	64	 
	 
	 	 	 	 
	5.01. Voluntary Prepayments
	 	 	64	 
	5.02. Mandatory Repayments and Commitment Reductions
	 	 	65	 
	5.03. Method and Place of Payment; Payments and Computations; Maintenance
of Accounts; Statement of Accounts
	 	 	68	 
	5.04. Net Payments
	 	 	70	 






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TABLE OF CONTENTS



	 	 	 	 	 
	 	 	Page
	SECTION 6. [Reserved]
	 	 	71	 
	 
	 	 	 	 
	SECTION 7. Conditions Precedent to All Credit Events
	 	 	71	 
	 
	 	 	 	 
	7.01. Limitation on Cash on Hand
	 	 	71	 
	7.02. No Default; Representations and Warranties
	 	 	72	 
	7.03. Notice of Borrowing; Letter of Credit Request
	 	 	72	 
	 
	 	 	 	 
	SECTION 8. Representations, Warranties and Agreements
	 	 	72	 
	 
	 	 	 	 
	8.01. Company Status
	 	 	72	 
	8.02. Company Power and Authority
	 	 	72	 
	8.03. No Violation
	 	 	73	 
	8.04. Litigation
	 	 	73	 
	8.05. Use of Proceeds; Margin Regulations
	 	 	73	 
	8.06. Governmental Approvals
	 	 	73	 
	8.07. Investment Company Act
	 	 	74	 
	8.08. True and Complete Disclosure
	 	 	74	 
	8.09. Financial Condition; Financial Statements
	 	 	74	 
	8.10. Security Interests
	 	 	75	 
	8.11. Compliance with ERISA
	 	 	75	 
	8.12. Subsidiaries
	 	 	76	 
	8.13. Intellectual Property, etc.
	 	 	77	 
	8.14. Compliance with Statutes; Agreements, etc.
	 	 	77	 
	8.15. Environmental Matters
	 	 	77	 
	8.16. Properties
	 	 	78	 
	8.17. Labor Relations
	 	 	78	 
	8.18. Tax Returns and Payments
	 	 	78	 
	8.19. Insurance
	 	 	79	 
	8.20. Subordination
	 	 	79	 
	8.21. Aggregate Borrowing Base Calculation
	 	 	79	 
	 
	 	 	 	 
	SECTION 9. Affirmative Covenants
	 	 	79	 
	 
	 	 	 	 
	9.01. Information Covenants
	 	 	79	 
	9.02. Books, Records and Inspections
	 	 	84	 
	9.03. Insurance
	 	 	84	 
	9.04. Payment of Taxes
	 	 	85	 
	9.05. Existence; Franchises
	 	 	85	 
	9.06. Compliance with Statutes; etc.
	 	 	85	 
	9.07. Compliance with Environmental Laws
	 	 	85	 
	9.08. ERISA
	 	 	86	 
	9.09. Good Repair
	 	 	87	 
	9.10. End of Fiscal Years; Fiscal Quarters
	 	 	87	 
	9.11. Additional Security; Additional Guaranties; Actions with Respect to
Non-Guarantor Subsidiaries; Further Assurances
	 	 	87	 
	9.12. Use of Proceeds
	 	 	90	 
	9.13. Ownership of Subsidiaries
	 	 	90	 






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TABLE OF CONTENTS

(continued)


	 	 	 	 	 
	 	 	Page
	9.14. Maintenance of Company Separateness
	 	 	91	 
	9.15. Performance of Obligations
	 	 	91	 
	9.16. Margin Stock
	 	 	91	 
	9.17. Landlords’ Agreements, Mortgagee Agreements, Bailee Letters and
Real Estate Purchases
	 	 	91	 
	 
	 	 	 	 
	SECTION 10. Negative Covenants
	 	 	92	 
	 
	 	 	 	 
	10.01. Changes in Business; etc.
	 	 	92	 
	10.02. Consolidation; Merger and Sale of Assets; etc.
	 	 	92	 
	10.03. Liens
	 	 	94	 
	10.04. Indebtedness
	 	 	97	 
	10.05. Advances; Investments; Loans
	 	 	99	 
	10.06. Restricted Payments; etc.
	 	 	101	 
	10.07. Transactions with Affiliates
	 	 	102	 
	10.08. Fixed Charge Coverage Ratio
	 	 	103	 
	10.09. Limitation on Voluntary Payments and Modifications of Indebtedness;
Modifications of Certificate of Incorporation, By-Laws and Certain Other
Agreements; Issuances of Capital Stock; etc.
	 	 	103	 
	10.10. Limitation on Issuance of Equity Interests
	 	 	104	 
	10.11. Limitation on Certain Restrictions on Subsidiaries
	 	 	104	 
	10.12. Special Restrictions Relating to Principal Property
	 	 	104	 
	10.13. No Additional Deposit Accounts; etc.
	 	 	105	 
	 
	 	 	 	 
	SECTION 11. Events of Default
	 	 	105	 
	 
	 	 	 	 
	11.01. Payments
	 	 	105	 
	11.02. Representations, etc.
	 	 	105	 
	11.03. Covenants
	 	 	105	 
	11.04. Default Under Other Agreements
	 	 	105	 
	11.05. Bankruptcy, etc.
	 	 	106	 
	11.06. ERISA
	 	 	106	 
	11.07. Security Documents
	 	 	107	 
	11.08. Guaranties
	 	 	107	 
	11.09. Judgments
	 	 	107	 
	11.10. Ownership
	 	 	108	 
	11.11. Denial of Liability
	 	 	108	 
	 
	 	 	 	 
	SECTION 12. The Administrative Agent
	 	 	108	 
	 
	 	 	 	 
	12.01. Appointment
	 	 	108	 
	12.02. Nature of Duties
	 	 	109	 
	12.03. Lack of Reliance on the Administrative Agent
	 	 	109	 
	12.04. Certain Rights of the Administrative Agent
	 	 	109	 
	12.05. Reliance
	 	 	110	 
	12.06. Indemnification
	 	 	110	 
	12.07. The Administrative Agent in Its Individual Capacity
	 	 	110	 
	12.08. Holders
	 	 	110	 






-iii-









 





TABLE OF CONTENTS

(continued)



	 	 	 	 	 
	 	 	Page
	12.09. Resignation by the Administrative Agent
	 	 	111	 
	12.10. Collateral Matters
	 	 	112	 
	12.11. Delivery of Information
	 	 	112	 
	12.12. Withholding Tax
	 	 	113	 
	 
	 	 	 	 
	SECTION 13. Miscellaneous
	 	 	113	 
	 
	 	 	 	 
	13.01. Payment of Expenses, etc.
	 	 	113	 
	13.02. Right of Setoff
	 	 	114	 
	13.03. Notices
	 	 	115	 
	13.04. Benefit of Agreement; Assignments; Participations
	 	 	115	 
	13.05. No Waiver; Remedies Cumulative
	 	 	117	 
	13.06. Payments Pro Rata
	 	 	117	 
	13.07. Calculations; Computations
	 	 	118	 
	13.08. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL
	 	 	119	 
	13.09. Counterparts
	 	 	120	 
	13.10. Effectiveness
	 	 	120	 
	13.11. Headings Descriptive
	 	 	120	 
	13.12. Amendment or Waiver; etc.
	 	 	120	 
	13.13. Survival
	 	 	122	 
	13.14. Domicile of Loans
	 	 	122	 
	13.15. Register
	 	 	122	 
	13.16. Confidentiality
	 	 	122	 
	13.17. Special Provisions Regarding Pledges of Equity Interests in, and
Promissory Notes Owed by, Persons Not Organized in the United States
	 	 	123	 
	13.18. Patriot Act
	 	 	124	 






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	SCHEDULE
	 	 
	 
	SCHEDULE I

	 	Commitments
	SCHEDULE II

	 	Lender Addresses
	SCHEDULE III

	 	Accounts
	SCHEDULE IV

	 	Existing Indebtedness
	SCHEDULE V

	 	Real Property
	SCHEDULE VI

	 	Plans
	SCHEDULE VII

	 	Capitalization
	SCHEDULE VIII

	 	Subsidiaries
	SCHEDULE IX

	 	Existing Investments
	SCHEDULE X

	 	Tax Matters
	SCHEDULE XI

	 	Insurance
	SCHEDULE XII

	 	[Reserved]
	SCHEDULE XIII

	 	Non-Guarantor Subsidiaries, Excluded Foreign Subsidiaries
	SCHEDULE XIV

	 	[Reserved]
	SCHEDULE XV

	 	[Reserved]
	SCHEDULE XVI

	 	Transactions with Affiliates
	SCHEDULE XVII

	 	Principal Properties
	SCHEDULE XVIII

	 	Existing Liens
	SCHEDULE XIX

	 	Existing Letters of Credit
	 
	 	 
	EXHIBIT
	 	 
	 
	 	 
	EXHIBIT A-1

	 	Form of Notice of Borrowing
	EXHIBIT A-2

	 	Form of Notice of Conversion/Continuation
	EXHIBIT B-1

	 	Form of Revolving Note
	EXHIBIT B-2

	 	Form of Swingline Note
	EXHIBIT C

	 	Form of Letter of Credit Request
	EXHIBIT D

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

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

	 	Form of Officers’ Certificate
	EXHIBIT G

	 	Form of Subsidiaries Guaranty
	EXHIBIT H

	 	Form of Intercompany Subordination Agreement
	EXHIBIT H1

	 	Form of Intercompany Subordination Agreement Acknowledgement
	EXHIBIT I

	 	Form of Pledge Agreement
	EXHIBIT J

	 	Form of Security Agreement
	EXHIBIT K

	 	Form of Intercreditor Agreement
	EXHIBIT L

	 	Form of Solvency Certificate
	EXHIBIT M

	 	Form of Borrowing Base Certificate
	EXHIBIT N

	 	Form of Intercompany Note
	EXHIBIT O

	 	[Reserved]
	EXHIBIT P

	 	Form of Compliance Certificate
	EXHIBIT Q

	 	Form of Assignment and Assumption Agreement
	EXHIBIT R

	 	Form of Incremental Commitment Agreement
	EXHIBIT S

	 	Form of Landlord Personal Property Collateral Access Agreements






-v-









 






          CREDIT AGREEMENT, dated as of April 12, 2006, as amended on March 18, 2009, as further amended
on October 26, 2009 and as further amended on March 2, 2010, among DOLE FOOD COMPANY, INC., a
Delaware corporation (the “Borrower”), the Lenders party hereto from time to time, DEUTSCHE
BANK AG New York Branch (“DBNY”), as Administrative Agent, WELLS FARGO CAPITAL FINANCE, LLC
and BANK OF AMERICA, N.A., as Co-Syndication Agents, THE BANK OF NOVA SCOTIA, COBANK ACB and U.S.
BANK NATIONAL ASSOCIATION, as Co-Documentation Agents, DEUTSCHE BANK SECURITIES INC., WELLS FARGO
CAPITAL FINANCE, LLC and BANC OF AMERICA SECURITIES LLC, as Joint Lead Arrangers and Joint Book
Running Managers. All capitalized terms used herein and defined in Section 1.01 are used herein as
therein defined.




W I T N E S S E T H:




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




          NOW, THEREFORE, IT IS AGREED:




          SECTION 1. Definitions and Accounting Terms.




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




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




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




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




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




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




          “Acquired Entity or Business” shall mean either (x) the assets constituting a
business, division or product line of any Person not already a Subsidiary of the Borrower, which
assets are acquired by the Borrower or any of its Subsidiaries or (y) any Person, which shall, as
a result of the acquisition of its Equity Interests, become a Subsidiary of the Borrower (or shall
be merged with and into the Borrower or another Subsidiary of the Borrower).




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




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




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







 









 








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




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




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




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




          “Affiliate” shall mean, with respect to any Person, any other Person directly or
indirectly controlling (including but not limited to all directors and officers of such Person),
controlled by, or under direct or indirect common control with such Person. A Person shall be
deemed to control another Person if such Person possesses, directly or indirectly, the power (i) to
vote 10% or more of the securities having ordinary voting power for the election of directors (or
equivalent governing body) of such Person; provided that such Person is required to filed a
Form 13D and is not permitted to file a Form 13G, in each case, with the SEC on account of such
possession or (ii) to direct or cause the direction of the management and policies of such other
Person, whether through the ownership of voting securities, by contract or otherwise.




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




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




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




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




          “Agreement” shall mean this Credit Agreement, as modified, supplemented, amended,
restated, extended, renewed refinanced and/or replaced from time to time.




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




          “Amendment No. 3” shall mean Amendment 3 to this Agreement, dated as of March 2,
2010.




          “Amendment No. 3 Effective Date” shall mean March 2, 2010.







-2-









 








          “Applicable Commitment Commission Percentage” shall mean for Extended Revolving Loan
Commitments, for each day on which the Aggregate Exposure is (i) less than or equal to 50% of the
Total Commitment, 0.75%, (ii) greater than 50% of the Total Commitment, 0.50%.




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




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






          The Applicable Margin as so determined shall apply, except as set forth in the succeeding
sentence, from the relevant Adjustment Date to the next Adjustment Date. Notwithstanding anything
to the contrary contained above in this definition, the Applicable Margin shall be the highest set
forth in the table above at all times during which there shall exist any Specified Default or any
Event of Default.




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




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




          “Authorized Officer” shall mean, with respect to (i) delivering Notices of Borrowing,
Notices of Conversion/Continuation and similar notices, the Chairman, the Chief Executive Officer,
the Chief Financial Officer, the General Counsel, the Treasurer or any Assistant Treasurer of the
Borrower any person or persons that has or have been authorized by the board of directors of the
Borrower to deliver such notices pursuant to this Agreement and that has or have appropriate
signature cards on file with the Administrative Agent, the Swingline Lender or the respective
Issuing Lender, (ii) delivering financial information and officer’s certificates pursuant to this
Agreement, the chief financial officer, the treasurer or any financial officer of the Borrower, and
(iii) any other matter in connection with this






-3-









 







Agreement or any other Credit Document, any officer (or a person or persons so designated by
any two officers) of the Borrower.




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




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




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




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




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




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




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




          “Bermuda Partnership Partner #1” shall mean Dole Fresh Fruit Company, Inc., a
corporation organized under the laws of Nevada and a Wholly-Owned Subsidiary of the Borrower.




          “Bermuda Partnership Partner #2” shall mean Dole Ocean Cargo Express, Inc., a
corporation organized under the laws of Nevada and a Wholly-Owned Subsidiary of the Borrower.




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




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




          “Borrower Common Stock” shall mean the issued and outstanding common stock, par value
$0.001 per share, of the Borrower.




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




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




          “Borrowing Availability Limitation” shall mean at any time that the Borrowing
Availability at such time is less than (x) in all cases other than as provided in clause (y), the
greater of (a)






-4-









 







$70,000,000 and (b) 20% of the Total Commitment at such time and (y) in the case of Section
9.01(n), $50,000,000.




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





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




     (b) the lowest of




     (i) the sum total of the following:




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






     (ii) the sum of 85% of the Net Orderly Liquidation Value of Eligible Inventory
included in each of the Borrower’s Business Segments (e.g., on the Amendment
No. 3 Effective Date, calculated as the sum of (x) 85% of the Net Orderly
Liquidation Value of Eligible Inventory of Dole Packaged Foods, LLC plus (y) 85% of
the Net Orderly Liquidation Value of Eligible Inventory of Dole Fresh Vegetables,
Inc. plus (z) 85% of the Net Orderly Liquidation Value of Eligible Inventory of Dole
Fresh Fruit Company), minus




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



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




          “Business Day” shall mean (i) for all purposes other than as covered by clauses (ii)
and (iii) below, any day excluding Saturday, Sunday and any day which shall be in the City of New
York (or, with respect to an Issuing Lender not located in the City of New York, the location of
such Issuing Lender) a legal holiday or a day on which banking institutions are authorized by law
or other governmental actions to close, (ii) with respect to all notices and determinations in
connection with, and payments of principal, Unpaid Drawings and interest on or with respect to,
Euro Denominated Loans or any Euro Denominated Letters of Credit, any day which is a Business Day
described in clause (i) and






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which is also (A) a day for trading by and between banks in the London interbank market and
which shall not be a legal holiday or a day on which banking institutions are authorized or
required by law or other government action to close in London or New York City and (B) in relation
to any payment in Euros, a day on which the Trans-European Automated Real-Time Gross Settlement
Express Transfer (TARGET) System is open and (iii) with respect to all notices and determinations
in connection with, and payments of principal, Eurodollar Loans and Unpaid Drawings and interest on
or with respect to, Eurodollar Loans and Sterling Denominated Loans or any Sterling Denominated
Letters of Credit, any day which is a Business Day described in clause (i) and which is also a day
for trading by and between banks in the London interbank market and which shall not be a legal
holiday or a day on which banking institutions are authorized or required by law or other
government action to close in London.




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




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




          “Capital Expenditures” shall mean, with respect to any Person, for any period, all
expenditures by such Person with respect to fixed or capital assets which should be capitalized in
accordance with U.S. GAAP during such period (including, without limitation, expenditures for
maintenance and repairs which should be capitalized in accordance with U.S. GAAP), but excluding
(i) any expenditures representing the reinvestment of the Net Sale Proceeds of any Asset Sale or
any proceeds of any Casualty Event and (ii) any expenditures out of the proceeds of any long-term
Indebtedness (other than the Loans).




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




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




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




          “Cash Equivalents” shall mean (i) Dollars, Euros, Sterling, Swedish Krona and, in the
case of any of Foreign Subsidiaries of the Borrower, such local currencies held by them from time
to time in the ordinary course of their businesses, (ii) securities issued or directly fully
guaranteed or insured by the governments of the United States, the United Kingdom, Sweden,
Switzerland, Japan, Canada and members of the European Union or any agency or instrumentality
thereof (provided that the full faith and credit of the respective such government is
pledged in support thereof) having maturities of not more than six months from the date of
acquisition, (iii) securities issued by any state of the United States or any political subdivision
of any such state or any public instrumentality thereof maturing within six months from the date of
acquisition thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or Moody’s, (iv) certificates of deposit and eurodollar time deposits
with maturities of six months or less from the date of acquisition, bankers’ acceptances with
maturities not exceeding six months and overnight bank deposits, in each case with any domestic
commercial bank or commercial bank of a foreign country recognized by the United States, (x) in the
case of a domestic commercial bank, having capital and surplus in excess of $500,000,000 and
outstanding debt which is rated “A” (or similar equivalent thereof) or higher by at least one
nationally recognized statistical rating






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organization (as defined under Rule 436 under the Securities Act) and (y) in the case of a
foreign commercial bank, having capital and surplus in excess of $250,000,000 (or the foreign
currency equivalent thereof), (v) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses (ii) and (iv) above entered into with
any financial institution meeting the qualifications specified in clause (iv) above, (vi)
commercial paper having a rating of at least A-1 from S&P or at least P-1 from Moody’s and in each
case maturing within six months after the date of acquisition and (vii) investments in money market
funds which invest substantially all their assets in securities of the types described in clauses
(i) through (vi) above. Furthermore, with respect to Foreign Subsidiaries of the Borrower that are
not organized in one or more Qualified Jurisdictions, Cash Equivalents shall include bank deposits
(and investments pursuant to operating account agreements) maintained with various local banks in
the ordinary course of business consistent with past practice of the Borrower’s Foreign
Subsidiaries.




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





     ”Change of Control” shall mean




     (i) any “person” (as defined in Section 13(d) of the Exchange Act) other than the
Permitted Holders 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 Equity Interests of the Borrower;




     (ii) the Board of Directors of the Borrower shall cease to consist of a majority of
Continuing Directors, or




     (iii) a “change of control” or similar event shall occur as provided in any Term Credit
Document, the Existing Senior Notes or any Permitted Refinancing Indebtedness in respect
thereof.



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




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




          “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and
the regulations promulgated and rulings issued thereunder. Section references to the Code are to
the Code, as in effect at the Amendment No. 3 Effective Date and any subsequent provisions of the
Code, amendatory thereof, supplemental thereto or substituted therefor.




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







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




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




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




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




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




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




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




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




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




          “Consolidated EBITDA” shall mean for any period, Consolidated EBIT, adjusted by (x)
adding thereto (in each case to the extent deducted in determining Consolidated Net Income for such
period and not already added back in determining Consolidated EBIT) the amount of (i) all
depreciation and amortization expense that were deducted in determining Consolidated EBIT for such
period, (ii) any other non-cash charges incurred in such period (including non-cash share-based
compensation expense), to the extent that same were deducted in arriving at Consolidated EBIT for
such period, (iii) the amount of all fees and expenses incurred in connection with the Refinancing
or any Permitted Refinancing Indebtedness in respect of the Specified Indebtedness for such period
to the extent same were deducted in arriving at Consolidated EBIT for such period, and (iv) any
losses attributable to the interest component of cross-currency hedging arrangements even if such
transactions are treated for U.S. GAAP purposes as foreign exchange transactions to the extent same
were deducted in arriving at Consolidated EBIT for such period, and (y) subtracting therefrom, (i)
to the extent included in arriving at Consolidated EBIT for such period, the amount of non-cash
gains during such period, (ii) the aggregate amount of all cash payments made during such period in
connection with non-cash charges incurred in a prior period, to the extent






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such non-cash charges were added back pursuant to clause (x)(ii) above in a prior period and
(iii) any gains attributable to the interest component of cross-currency hedging arrangements even
if such transactions are treated for U.S. GAAP purposes as foreign exchange transactions to the
extent same were included in arriving at Consolidated EBIT for such period. Notwithstanding the
foregoing, (x) Consolidated EBITDA of the Borrower for the Fiscal Quarters ended March 28, 2009,
June 20, 2009, October 10, 2009 and January 2, 2010 shall be deemed to be $122,300,000,
$144,500,000, $80,800,000 and $68,900,000, respectively, and notwithstanding anything to the
contrary in the definition of Pro Forma Basis, no adjustment shall be made to such amounts as a
result of any transaction occurring prior to the Amendment No. 3 Effective Date.




          “Consolidated Fixed Charges” shall mean, for any period, the sum, without duplication,
of the following amounts (in each case, determined for the Borrower and its Subsidiaries on a
consolidated basis for such period): (i) Consolidated Interest Expense payable in cash; (ii)
scheduled payments of principal on Consolidated Total Debt (including, without limitation, the
capitalized portion of any Capital Lease) (except, in each case, to the extent made with the
proceeds of Indebtedness other than any Loan); (iii) Capital Expenditures; (iv) Dividends paid
pursuant to Sections 10.06(vii) and (viii) and (v) the portion of taxes based on income actually
paid in cash (net of any cash refunds received during such period and excluding any repatriation
taxes) and provisions for cash income taxes.




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




          “Consolidated Net Debt” shall mean, at any time, the remainder of (I) the sum of
(without duplication) (i) all Indebtedness of the Borrower and its Consolidated Subsidiaries (on a
consolidated basis) as would be required to be reflected as debt or Capital Leases on the liability
side of a consolidated balance sheet of the Borrower and its Consolidated Subsidiaries in
accordance with U.S. GAAP, (ii) all Indebtedness of the Borrower and its Consolidated Subsidiaries
of the type described in clauses (ii) and (vii) of the definition of “Indebtedness” and (iii) all
Contingent Obligations of the Borrower and its Consolidated Subsidiaries in respect of Indebtedness
of any third Person of the type referred to in preceding clauses (i) and (ii) minus (II)
the aggregate amount of Unrestricted Cash and Unrestricted Cash Equivalents of the Borrower and its
Subsidiaries at such time to the extent same would be reflected on a consolidated balance sheet of
the Borrower if same were prepared at such time; provided that (w) the amount available to
be drawn under all letters of credit, bankers’ acceptances, bank guaranties and similar obligations
issued for the account of the Borrower or any of its Consolidated Subsidiaries (but excluding, for
avoidance of doubt, all unpaid drawings or other monetary obligations owing in respect of such
letters of credit, bankers’ acceptances, bank guaranties and similar obligations) shall not be
included






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in any determination of “Consolidated Net Debt,” (x) for purposes of this definition, the
amount of Indebtedness in respect of the Interest Rate Protection Agreements, Other Hedging
Agreements and Commodities Agreements shall be at any time (A) in the case of any such agreements
entered into for speculative purposes, the unrealized net loss position, if any, of the Borrower
and/or its Consolidated Subsidiaries thereunder on a marked-to-market basis determined no more than
one month prior to such time and (B) in the case of any other Interest Rate Protection Agreement,
Other Hedging Agreement or Commodity Agreement, zero, (y) obligations arising under Synthetic
Leases shall be included in determining Consolidated Net Debt and (z) any Preferred Equity of the
Borrower or any of its Consolidated Subsidiaries shall be treated as Indebtedness, with an amount
equal to the greater of the liquidation preference or the maximum fixed repurchase price of any
such outstanding Preferred Equity deemed to be a component of Consolidated Net Debt.




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




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




          “Consolidated Subsidiary” shall mean, with respect to any Person, at any date, any
other Person the Equity Interests of which are owned by such Person and whose financial results are
consolidated in the financial statements of such Person in accordance with U.S. GAAP (and
consistent with the consolidation practices of the Borrower as in effect on the Amendment No. 3
Effective Date), if such statements were prepared as of such date.




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




          “Contemplated Asset Sale” shall mean any sale of assets by the Borrower and/or one or
more of its Subsidiaries (including Real Property and Equity Interests held by such Persons but
excluding Equity Interests in the Bermuda Company and any Person which owns, directly or
indirectly, Equity Interests therein); provided, however, that (x) any such assets
are not material to the operations of the Borrower and its Subsidiaries, (y) on a Pro Forma Basis,
after giving effect to such transaction, the Borrower would be in compliance with Section 9.12 of
the Term Credit Agreement (as in effect on the Amendment No. 3 Effective Date) as of the most
recently completed test period and (z) the Borrower shall have provided a certificate to the
Administrative Agent stating that such sale is made as a, and complies with the requirements of the
definition of, Contemplated Asset Sale.




          “Contingent Obligation” shall mean, as to any Person, any obligation of such Person as
a result of such Person being a general partner of any other Person, unless the underlying
obligation is expressly made non-recourse as to such general partner, and any obligation of such
Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other
obligations (“primary obligations”)






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of any other Person (the “primary obligor”) in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person, whether or not
contingent, (i) to purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (x) for the purchase or payment of any
such primary obligation or (y) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of such primary obligation
or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in
respect thereof; provided, however, that the term Contingent Obligation shall not
include endorsements of instruments for deposit or collection in the ordinary course of business.
The amount of any Contingent Obligation shall be deemed to be an amount equal to the lesser of (x)
the stated or determinable amount of the primary obligation in respect of which such Contingent
Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof (assuming such Person is required to perform thereunder) as determined by such
Person in good faith and (y) the stated amount of such Contingent Obligation.




          “Continuing Directors” shall mean the directors of the Borrower on the Amendment No. 3
Effective Date and each other director if such director’s election to, or nomination for the
election to, the Board of Directors of the Borrower is recommended or approved by a majority of
then Continuing Directors.




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




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




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




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




          “Credit Party” shall mean the Borrower and each Subsidiary Guarantor.




          “Customer” shall mean the account debtor with respect to any account and/or
prospective purchaser of goods, services or both with respect to any contract or contract right,
and/or any party who enters into or proposes to enter into any contract or other arrangement with
any Credit Party, pursuant to which such Credit Party is to sell any personal property or perform
any services.




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




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




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







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




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




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




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




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




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




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




          “Dollar Equivalent” of an amount denominated in a currency other than Dollars shall
mean, at any time for the determination thereof, the amount of Dollars which could be purchased
with the amount of such currency involved in such computation at the spot exchange rate therefor as
quoted by the Administrative Agent as of 11:00 A.M. (New York time) on the date two Business Days
prior to the date of any determination thereof for purchase on such date; provided that (i)
for purposes of (x) determining compliance with Sections 2.01(a), 2.01(b), 3.02, 5.02(a) and 7.01
and (y) calculating Fees pursuant to Section 4.01, the Dollar Equivalent of any amounts denominated
in a currency other than Dollars shall be revalued on a monthly basis using the spot exchange rates
therefor as quoted in The Wall Street Journal (or, if same does not provide such exchange rates, on
such other basis as is reasonably satisfactory to the Administrative Agent) on the first Business
Day of each calendar month, (ii) at any time during a calendar month, if the Aggregate Exposure
(for the purposes of the determination thereof, using the Dollar Equivalent as recalculated based
on the spot exchange rate therefor as quoted in The Wall Street Journal (or, if same does not
provide such exchange rates, on such other basis as is reasonably satisfactory to the
Administrative Agent) on the respective date of determination pursuant to this exception) would
exceed 85% of the lesser of (x) the Total Commitment and (y) the Borrowing Base at such time, then
in the sole discretion of the Administrative Agent or at the request of the Required Lenders, the
Dollar Equivalent shall be reset based upon the spot exchange rates on such date as quoted in The
Wall Street Journal (or, if same does not provide such exchange rates, on such other basis as is
reasonably satisfactory to the Administrative Agent), which rates shall remain in effect until the
last Business Day of such calendar month or such earlier date, if any, as the rate is reset
pursuant to this proviso and (iii) notwithstanding anything to the contrary contained in this
definition, at any time that a Default or an Event of Default then exists, the Administrative Agent
may revalue the Dollar Equivalent of any amounts outstanding under the Credit Documents in a
currency other than Dollars in its sole discretion using the spot exchange rates therefor as quoted
in The Wall Street Journal (or, if the same does not provide such exchange rates, on such other
basis as is reasonably satisfactory to the Administrative Agent).







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




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




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




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





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




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




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




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




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




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




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




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



-13-









 






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




     (j) Accounts with respect to which the Account Debtor is (i) the federal government of
Canada or any department, agency or instrumentality of Canada or (ii) the federal government
of the United States or any department, agency or instrumentality of the United States
(exclusive, however, of Accounts with respect to which the Borrower has complied, to the
reasonable satisfaction of Administrative Agent, with the Assignment of Claims Act, 31 USC §
3727),




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




     (l) Accounts with respect to an Account Debtor whose total obligations owing to
Borrower or any Subsidiary of the Borrower exceed 20% (or in the case of an Eligible
Investment Grade Account Debtor, 30%) (in each case, such percentage as applied to a
particular Account Debtor being subject to reduction by Administrative Agent in its
Permitted Discretion if the creditworthiness of such Account Debtor deteriorates or is
otherwise unacceptable) of all Eligible Accounts, to the extent of the obligations owing by
such Account Debtor in excess of such percentage; provided, however, that,
in each case, the amount of Eligible Accounts that are excluded because they exceed the
foregoing percentage shall be determined by Administrative Agent based on all of the
otherwise Eligible Accounts prior to giving effect to any eliminations based upon the
foregoing concentration limit,




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




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




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



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




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



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





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




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



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




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




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




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




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




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




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




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




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




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



-16-









 






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




     (m) is Commingled Inventory;




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




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




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



          “Eligible Investment Grade Account Debtor” means an Account Debtor that (x) is
acceptable to the Administrative Agent and (y) has a minimum rating of at least (i) A- (with stable
outlook) from S&P and (ii) A3 (with stable outlook) from Moody’s.




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




          “Environmental Claims” shall mean any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of non-compliance or violation,
investigations or proceedings relating in any way to any violation (or alleged violation) by the
Borrower or any of its Subsidiaries under any Environmental Law or any permit issued to the
Borrower or any of its Subsidiaries under any such law (hereafter “Claims”), including,
without limitation, (a) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law, and (b) any and all Claims by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief resulting from
Hazardous Materials or arising from alleged injury or threat of injury to health, safety or the
environment.




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




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







-17-









 








          “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the regulations promulgated and rulings issued thereunder. Section
references to ERISA are to ERISA, as in effect on the Amendment No. 3 Effective Date and any
subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.




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




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




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




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




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




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




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




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




          “Eurodollar Rate” shall mean (a) for any Interest Period, the British Bankers
Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other commercially
available source providing quotations of BBA LIBOR as designated by the Administrative Agent from
time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement
of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period; provided that if such rate is not
available at such time for any reason, then the rate






-18-









 







pursuant to this clause (x) for such Interest Period shall be the rate per annum determined by
the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day
of such Interest Period in same day funds in the approximate amount of the Eurodollar Loan being
made, continued or converted with a term equivalent to such Interest Period would be offered by
Deutsche Bank’s London Branch to major banks in the London interbank eurodollar market at their
request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of
such Interest Period, divided (and rounded upward to the nearest 1/16 of 1%) by (b) a percentage
equal to 100% minus the then stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special or other reserves required by
applicable law) applicable to any member bank of the Federal Reserve System in respect of
Eurocurrency funding or liabilities as defined in Regulation D (or any successor category of
liabilities under Regulation D).




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




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




          “Excluded Collateral” shall mean and include (i) each Principal Property of the
Borrower and any of its Restricted Subsidiaries, (ii) all shares of capital stock or Indebtedness
(as defined in the Existing 2013 Senior Notes Indenture as in effect on the Amendment No. 3
Effective Date) of any Restricted Subsidiary of the Borrower (which Indebtedness (as so defined) is
then held by the Borrower or any Restricted Subsidiary), and (iii) Margin Stock owned or held by
the Borrower or any of its Subsidiaries; provided that the collateral described in
preceding clauses (i) and (ii) shall cease to constitute “Excluded Collateral” upon the repayment
in full of all Existing 2013 Senior Notes.




          “Excluded Deposit Accounts” shall mean (i) Deposit Accounts with an aggregate monthly
balance of less than $500,000, provided that, with respect to this clause (i) only, the
aggregate amount in all such Deposit Accounts excluded pursuant to this clause (i) does not exceed
$5,000,000 at any time, (ii) deposit accounts specially and exclusively used for payroll, payroll
taxes and other employee wage and benefit payments to or for the benefit of the U.S. Dole Group’s
salaried employees and (iii) such other accounts used solely for disbursement purposes,
provided that the aggregate balance maintained in the accounts described in clauses (i),
(ii) and (iii) above shall not exceed $25,000,000 for more than five consecutive Business Days.




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




          “Excluded JV” shall mean any Subsidiary of the Borrower in which the Borrower owns
less than 90% of the voting stock and which has been designated by the Borrower to the
Administrative Agent as an “Excluded JV”; provided that the aggregate Investments of the
Borrower and its Restricted Subsidiaries outstanding in Excluded JVs (measured on the date each
such Investment was made and without giving effect to subsequent changes in value) shall not exceed
$50,000,000.




          “Existing Indebtedness” shall mean and include Indebtedness outstanding on the
Amendment No. 3 Effective Date and listed on Schedule IV.




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




          “Existing Senior Notes” shall mean and include the Existing 2013 Senior Notes, the
Existing 2014 Senior Notes and the Existing 2016 Senior Notes.







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          “Existing Senior Notes Indenture” shall mean and include (i) the Existing 2013 Senior
Notes Indenture, (ii) the Existing 2014 Senior Notes Indenture and (iii) the Existing 2016 Senior
Notes Indenture.




          “Existing 2011 Senior Notes” shall mean the Borrower’s 8-7/8% Senior Notes due 2011,
issued pursuant to the Existing 2011 Senior Notes Indenture.




          “Existing 2011 Senior Notes Indenture” shall mean the Indenture, dated as of March 28,
2003, among the Borrower, any Subsidiary Guarantors from time to time party thereto and the trustee
therefor, as in effect on the Amendment No. 3 Effective Date.




          “Existing 2013 Senior Notes” shall mean the Borrower’s 7-7/8% Senior Notes due 2013,
issued pursuant to the Existing 2013 Senior Notes Indenture, as in effect on the Amendment No. 3
Effective Date and as the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.




          “Existing 2013 Senior Notes Indenture” shall mean the Indenture, dated as of July 15,
1993, among the Borrower, any Subsidiary Guarantors from time to time party thereto and the trustee
therefor, as in effect on the Amendment No. 3 Effective Date and as the same may be amended,
modified or supplemented from time to time in accordance with the terms hereof and thereof.




          “Existing 2014 Senior Notes” shall mean the Borrower’s 13-7/8% Senior Secured Notes
due 2014, issued pursuant to the Existing 2014 Senior Notes Indenture, as in effect on the
Amendment No. 3 Effective Date and as the same may be amended, modified or supplemented from time
to time in accordance with the terms hereof and thereof.




          “Existing 2014 Senior Notes Indenture” shall mean the Indenture, dated as of March 18,
2009, among the Borrower, any Subsidiary Guarantors from time to time party thereto and the trustee
therefor, as in effect on the Amendment No. 3 Effective Date and as the same may be amended,
modified or supplemented from time to time in accordance with the terms hereof and thereof.




          “Existing 2016 Senior Notes” shall mean the Borrower’s 8% Senior Secured Notes due
2016, issued pursuant to the Existing 2016 Senior Notes Indenture, as in effect on the Amendment
No. 3 Effective Date and as the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.




          “Existing 2016 Senior Notes Indenture” shall mean the Indenture, dated as of September
25, 2009, among the Borrower, any Subsidiary Guarantors from time to time party thereto and the
trustee therefor, as in effect on the Amendment No. 3 Effective Date and as the same may be
amended, modified or supplemented from time to time in accordance with the terms hereof and
thereof.




          “Expenses” shall mean all present and future reasonable and invoiced expenses incurred
by or on behalf of the Administrative Agent or any Issuing Lender in connection with this
Agreement, any other Credit Document or otherwise in its capacity as the Administrative Agent under
this Agreement or as the Collateral Agent under any Security Document or as an Issuing Lender under
this Agreement, whether incurred heretofore or hereafter, which expenses shall include, without
limitation, the cost of record searches, the reasonable fees and expenses of attorneys and
paralegals, all reasonable and invoiced costs and expenses incurred by the Administrative Agent
(and the Collateral Agent) in opening bank accounts, depositing checks, electronically or otherwise
receiving and transferring funds, and any other charges imposed on the Administrative Agent (and
the Collateral Agent) due to insufficient funds of deposited checks and the standard fee of the
Administrative Agent (and the Collateral Agent) relating






-20-









 







thereto, collateral examination fees and expenses, reasonable fees and expenses of
accountants, appraisers or other consultants, experts or advisors employed or retained by the
Administrative Agent (and the Collateral Agent), fees and taxes related to the filing of financing
statements, costs of preparing and recording any other Credit Documents, all expenses, costs and
fees set forth in this Agreement and the other Credit Documents, all other fees and expenses
required to be paid pursuant to any other letter agreement and all fees and expenses incurred in
connection with releasing Collateral and the amendment or termination of any of the Credit
Documents.




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




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




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




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




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




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




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




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







-21-









 








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




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




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




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




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




          “Fronting Lender” shall mean the Administrative Agent in its capacity as Fronting
Lender under the Revolving Loans, together with its successors and assigns in such capacity.




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




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







-22-









 








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




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




          “Holdings” shall mean DHM Holding Company, Inc.




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




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




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




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




          “Incremental Commitment Requirements” shall mean with respect to any provision of an
Incremental Commitment on a given Incremental Commitment Date, the satisfaction of each of the
following conditions on or prior to the effective date of the respective Incremental Commitment
Agreement: (t) no Default or Event of Default then exists or would result therefrom (for purposes
of such determination, assuming the relevant Loans in an aggregate principal amount equal to the
full amount of Incremental Commitments then provided had been incurred, and the proposed Permitted
Acquisition (if






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any) to be financed with the proceeds of such Loans had been consummated, on such date of
effectiveness) and all of the representations and warranties contained herein and in the other
Credit Documents are true and correct in all material respects at such time (unless stated to
relate to a specific earlier date, in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date); (u) the Borrower and its
Subsidiaries shall have delivered such amendments, modifications and/or supplements to the Security
Documents as are necessary, or in the reasonable opinion of the Administrative Agent desirable, to
insure that the additional obligations are secured by, and entitled to the benefits of, the
Security Documents; (v) the delivery by the Borrower to Administrative Agent of an officer’s
certificate executed by the chief financial officer of the Borrower and certifying as to compliance
with preceding clause (u); (w) the delivery by the Borrower to Administrative Agent of an
acknowledgement in form and substance reasonable satisfactory to Administrative Agent and executed
by each Subsidiary Guarantor, acknowledging that such Incremental Commitment and all Loans
subsequently incurred pursuant to such Incremental Commitment shall constitute (and be included in
the definition of) “Guaranteed Obligations”; (x) the delivery by the Borrower to Administrative
Agent of an opinion or opinions, in form and substance reasonably satisfactory to Administrative
Agent, from counsel to the Credit Parties reasonably satisfactory to Administrative Agent and dated
such date, covering such of the matters set forth in the opinions of counsel delivered to
Administrative Agent on the Amendment No. 3 Effective Date as may be reasonably requested by
Administrative Agent, and such other matters incident to the transactions contemplated thereby as
Administrative Agent may reasonably request, (y) the delivery by each Credit Party to
Administrative Agent of such other officers’ certificates, board of director (or equivalent
governing body) resolutions and evidence of good standing (to the extent available under applicable
law) as Administrative Agent shall reasonably request, and (z) the completion by each Credit Party
of such other actions as Administrative Agent may reasonably request in connection with such
Incremental Loan Commitment.




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




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




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







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          “Initial Revolving Loan Commitment” shall mean, for each Lender, the amount set forth
opposite such Lender’s name in Schedule I (immediately prior to giving effect to Amendment No. 3)
directly below the column entitled “Revolving Loan Commitment,” as same may be (x) reduced from
time to time or terminated pursuant to Sections 4.02, 4.03 and/or 11, as applicable, or (y)
adjusted from time to time as a result of assignments to or from such Lender pursuant to Section
2.13 or 13.04(b).




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




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




          “Intercompany Distribution Transactions” shall mean the loans and or dividends made by
the Bermuda Company or any of the Bermuda Partnership Partners to their respective parent companies
and Affiliates in connection with the going-private merger transaction in 2003.




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




          “Intercompany Existing Indebtedness” shall mean all Indebtedness listed on Part B of
Schedule VI.




          “Intercompany Subordination Agreement” shall mean the Intercompany Subordination
Agreement, dated as of April 12, 2006, made by Holdings and various of its Subsidiaries party
thereto in favor of the Administrative Agent, as the same may be amended, restated, modified and/or
supplemented from time to time in accordance with the terms thereof. A copy of the Intercompany
Subordination Agreement as in effect on the Effective Date is attached hereto as Exhibit H.




          “Intercompany Subordination Agreement Acknowledgement” shall mean the acknowledgment
in the form of Exhibit H-1, dated as of the Effective Date, executed and delivered by each
Credit Party and each other Subsidiary of Holdings which is an obligee or obligor with respect to
any Intercompany Debt.




          “Intercreditor Agreement” shall mean the amended and restated intercreditor agreement,
dated as of March 19, 2009 and as amended on the Amendment No. 3 Effective Date, by and among the
Collateral Agent, the Term Collateral Agent, each Credit Party and the collateral agent for the
holders of “Notes Obligations” (as defined therein).




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




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







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




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




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




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




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




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




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




          “Lead Arrangers” shall mean Deutsche Bank Securities Inc., Wells Fargo Capital
Finance, LLC and Banc of America Securities LLC each in its capacity as Lead Arranger, and any
successor thereto.




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




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




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




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




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







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




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




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




          “Lien” shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority or other security
agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or
other title retention agreement, any financing or similar statement or notice filed under the UCC
or any other similar recording or notice statute, and any lease having substantially the same
effect as any of the foregoing).




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




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




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




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




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




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




          “Maturity Date” shall mean (i) with respect to Revolving Loans made pursuant to the
Extended Revolving Commitments, the Revolving Loan Maturity Date and (ii) with respect to Swingline
Loans, the Swingline Expiry Date.




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




          “Maximum Incremental Commitment Amount” shall mean $50,000,000 plus the amount
by which the Initial Revolving Credit Commitments are reduced following the Amendment No. 3
Effective Date (including any reduction that occurs concurrently with the establishment of
Incremental Revolving Credit Commitments).




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




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




          “Minimum Availability Amount” shall mean, at any time, the greater of (x) $37,500,000
and (y) 12.5% of the Total Commitment at such time.







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




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




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




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




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




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




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




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




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




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




          “Net Sale Proceeds” shall mean for any sale or other disposition of assets, the gross
cash proceeds (including any cash received by way of deferred payment pursuant to a promissory
note, receivable or otherwise, but only as and when received) received from such sale or other
disposition of assets, net of (i) reasonable transaction costs (including, without limitation, any
underwriting, brokerage






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or other customary selling commissions, reasonable legal, advisory and other fees and expenses
(including title and recording expenses), associated therewith and sales, VAT and transfer taxes
arising therefrom), (ii) payments of unassumed liabilities relating to the assets sold or otherwise
disposed of at the time of, or within 30 days after, the date of such sale or other disposition,
(iii) the amount of such gross cash proceeds required to be used to permanently repay any
Indebtedness (other than Indebtedness of the Lenders pursuant to this Agreement) which is secured
by the respective assets which were sold or otherwise disposed of, (iv) the estimated net marginal
increase in income taxes which will be payable by the Borrower consolidated group or any Subsidiary
of the Borrower with respect to the Fiscal Year in which the sale or other disposition occurs as a
result of such sale or other disposition; and (v) in the event of any such sale or disposition of
assets owned by a Non-Wholly Owned Subsidiary, the proportionate share thereof attributable to
minority interests (based upon such Persons’ relative holdings of Equity Interests in such
Subsidiary); provided, however, that such gross proceeds shall not include any
portion of such gross cash proceeds which the Borrower determines in good faith should be reserved
for post-closing adjustments (to the extent the Borrower delivers to the Lenders a certificate
signed by its chief financial officer or treasurer, controller or chief accounting officer as to
such determination), it being understood and agreed that on the day that all such post-closing
adjustments have been determined (which shall not be later than six months following the date of
the respective asset sale), the amount (if any) by which the reserved amount in respect of such
sale or disposition exceeds the actual post-closing adjustments payable by the Borrower or any of
its Subsidiaries shall constitute Net Sale Proceeds on such date received by the Borrower and/or
any of its Subsidiaries from such sale or other disposition.




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




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




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




          “Non-Guarantor Subsidiaries” shall mean (i) on the Amendment No. 3 Effective Date,
each Subsidiary of the Borrower listed on Part A of Schedule XIII and (ii) after the Amendment No.
3 Effective Date, any Subsidiary of the Borrower that is not at such time a Subsidiary Guarantor.




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




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




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




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




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




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







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




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




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




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




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




          “Participating Interest” shall mean with respect to any transferee, assignee or
participant referenced in Section 13.04 hereof, such Person’s obligations hereunder to fund a
Participating Interest in Revolving Loans hereunder from the Fronting Lender.




          “Payment Conditions” shall mean that each of the following conditions are satisfied at
the time of each action or proposed action and after giving effect thereto: (i) no Default or an
Event of Default shall have occurred and be continuing, (ii) Borrowing Availability (on the date of
such action or proposed action) and Average Historical Borrowing Availability (for the three month
period ending on the date of such action or proposed action), in each case, calculated on a Pro
Forma Basis as if such action or proposed action had occurred on the first day of such measurement
period, shall exceed the greater of (A) $75,000,000 (or, in the case of a Permitted Acquisition,
$60,000,000) and (B) 25% of the Total Commitment as then in effect (or, in the case of a Permitted
Acquisition, 20% of the Total Commitment as then in effect), (iii) the Borrower shall have a Fixed
Charge Coverage Ratio of not less than 1.15:1.00 for the Test Period then most recently ended for
which financial statements have been delivered pursuant to Section 9.01(a) or (c) on a Pro Forma
Basis as if such action or proposed action had occurred on the first day of such Test Period (or,
in the case of a Permitted Acquisition, in lieu of such requirement, the Borrower shall be in pro
forma compliance with each of the covenants set forth in Section 9.12 of the Term Credit Agreement
(as such covenants are in effect on the Amendment No. 3 Effective Date) as of the most recently
ended Test Period for which financial statements have been delivered pursuant to Section 9.01(a) or
(c) on a Pro Forma Basis); provided that this clause (iii) shall not apply to prepayments
of up to an aggregate of $50,000,000 of Specified Indebtedness so long as on a Pro Forma Basis for
any such prepayment, Borrowing Availability (on the date of such action or proposed action) and
Average Historical Borrowing Availability (for the three month period ending on the date of such
action or proposed action), in each case, calculated on a Pro Forma Basis as if such action or
proposed action had occurred on the first day of such measurement period, shall exceed the greater
of (A) $120,000,000 and (B) 40% of the Total Commitment as then in effect and (iv) the Borrower
shall have delivered to the Administrative Agent a certificate of an Authorized Officer of the
Borrower certifying as to compliance






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with preceding clauses (i) through (iii) and demonstrating (in reasonable detail) the
calculations required by the preceding clauses (ii) and (iii).




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




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




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




          “Permitted Acquisition” shall mean the acquisition by the Borrower or any of its
Subsidiaries of assets constituting a business, division or product line of any Person, not already
a Subsidiary of the Borrower or any of its Subsidiaries, or of Equity Interests of any such Person,
which Person shall, as a result of such acquisition, become a Subsidiary of the Borrower,
provided that (A) no Default or Event of Default shall be in existence at the time of the
consummation of the proposed Permitted Acquisition or immediately after giving effect thereto, (B)
the Acquired Entity or Business shall be a Permitted Business, (C) the aggregate amount expended by
the Borrower and its Subsidiaries in connection with all Permitted Acquisitions following the
Amendment No. 3 Effective Date with respect to assets that are not owned by Credit Parties
(including Persons that become Credit Parties in connection therewith) (excluding assets acquired
in exchange for shares of Common Stock of the Borrower), as determined in good faith by the
Borrower, does not exceed $350,000,000 and (D) the Borrower shall have delivered to the
Administrative Agent not later than the date of consummation of any such acquisition, a certificate
executed by an Authorized Officer of the Borrower stating that such acquisition is a “Permitted
Acquisition” and containing a calculation demonstrating compliance with the requirements set forth
in clause (C) of this definition.




          “Permitted Business” shall mean any business which is the same, similar, ancillary or
reasonably related to the business in which the Borrower or any of its Subsidiaries is engaged on
the Amendment No 3. Effective Date.




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







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




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




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




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




          “Permitted Refinancing Indebtedness” shall mean any Indebtedness of the Borrower and
its Subsidiaries issued or given in exchange for, or the proceeds of which are used to, extend,
refinance, renew, replace or refund any Indebtedness, so long as (a) such Indebtedness has a
weighted average life to maturity greater than or equal to the weighted average life to maturity of
the Indebtedness being extended, refinanced, renewed, replaced or refunded, (b) such extension,
refinancing, renewal, replacement or refunding does not (i) increase the amount of such
Indebtedness outstanding immediately prior to such extension, refinancing, renewal, replacement or
refunding (except to the extent of reasonable fees, premiums, commissions and expenses actually
paid in connection with such extension, refinancing, renewal, replacement or refunding) or (ii) add
guarantors, obligors or security from that which applied to such Indebtedness being extended,
refinanced, renewed, replacement or refunding except that unsecured Indebtedness of the Borrower
that is guaranteed by the Subsidiary Guarantors may be refinanced with Indebtedness that is secured
by junior Liens on the Collateral of the Credit Parties on the basis applicable to “Notes
Obligations” under the Intercreditor Agreement if either (x) the Indebtedness being refinanced
constituted “Notes Obligations” under the Intercreditor Agreement or (y) immediately after giving
effect to such refinancing on a Pro Forma Basis, the Senior Secured Leverage Ratio as of the last
day of the most recent Test Period for which financial statements are available pursuant to Section
9.01(b) or (c) would have been less than or equal to 3.75 to 1.00, (c) such Indebtedness has the
same (or, from the perspective of the Lenders, more favorable) subordination provisions, if any, as
applied to the Indebtedness being extended, renewed, refinanced, replaced or refunded, and (d) all
other terms of such extension, refinancing, renewal, replacement or refunding (including, without
limitation, with respect to the amortization schedules, redemption provisions, maturities,
covenants, defaults and remedies, but excluding interest rates so long as on market terms at the
time of issuance thereof) are not less favorable in any material respect to the respective borrower
than those previously existing with respect to the Indebtedness being extended, refinanced,
renewed, replaced or refunded, provided, however, that any Intercompany Existing
Indebtedness (and subsequent extensions, refinancings, renewals, replacements and refundings
thereof as provided above in this definition) may only be extended, refinanced, renewed, replaced
or refunded as provided above in this definition if the Indebtedness so extended, refinanced,
renewed, replaced or refunded has the same obligors(s) and obligee(s) as the Indebtedness being
extended, refinanced, renewed, replaced or refunded.




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







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




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




          “Pledge Agreement” shall mean the Amended and Restated Pledge Agreement, dated as of
the Effective Date, executed and delivered by each Credit Party in the form of Exhibit I
(as amended, modified, restated and/or supplemented from time to time in accordance with the terms
hereof and thereof).




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




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




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




          “Principal Property” shall mean “Principal Property,” as defined in the Existing 2013
Senior Notes Indenture (as in effect (and as each component definition used therein is in effect)
on the Amendment No. 3 Effective Date.




          “Pro Forma Basis” shall mean, in connection with any calculation of the Senior Secured
Leverage Ratio or Fixed Charge Coverage Ratio, the calculation of Consolidated EBITDA, Consolidated
Fixed Charges and Consolidated Senior Secured Net Debt as used therein, after giving effect on a
pro forma basis to the acquisition of any Acquired Entity or Business, the payment of any Dividend
pursuant to Sections 10.06(vii) and (viii), any Significant Asset Sale or incurrence or repayment
of Significant Indebtedness then being consummated as well as any other Significant Asset Sale or
incurrence or repayment of Significant Indebtedness consummated (i) for purposes of calculating
compliance with Section 10.08 during the relevant Test Period or (ii) for purposes of calculating
the Senior Secured Leverage Ratio or Fixed Charge Coverage Ratio for any other purpose hereunder
after the first day of the relevant Test Period and on or prior to the date of the required
determination of the Senior Secured Leverage Ratio and/or Fixed Charge Coverage Ratio, as the case
may be, as if same had occurred on the first day of the respective Test Period, in each case,
taking into account factually supportable and identifiable cost savings and expenses which would
otherwise be accounted for as an adjustment pursuant to Article 11 of Regulation S-X under the
Securities Act, as if such cost savings or expenses were realized on the first day of the
respective period.




          “Projections” means detailed projected consolidated financial statements of the
Borrower and its Consolidated Subsidiaries certified by the Chief Financial Officer of the Borrower
for the three






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Fiscal Years ended after the Amendment No. 3 Effective Date delivered to the Administrative
Agent on or prior to the Amendment No. 3 Effective Date.




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




          “Qualified Indebtedness” shall mean Indebtedness of the Borrower (which may be
guaranteed on a subordinated basis by any of the Subsidiary Guarantors pursuant to subordination
provisions that are not materially less favorable to the Lenders than those applicable to the
guarantees of the Existing Senior Notes); provided that (i) no portion of such Indebtedness
matures prior to the 91st day following the final scheduled maturity of the Loans outstanding at
the time such Indebtedness is incurred, (ii) the documentation governing such Indebtedness does not
require the repurchase or repayment of such Indebtedness prior to the final maturity thereof except
pursuant to a “change of control” or asset sale, (iii) either such Indebtedness is (x) unsecured or
(y) to the extent after giving effect to the Incurrence of such Indebtedness and the use of
proceeds therefrom on a Pro Forma Basis, the Senior Secured Leverage Ratio as of the last day of
the most recent Test Period for which financial statements are available pursuant to Section
9.01(b) or (c) would have been less than or equal to 3.75 to 1.00, secured solely by Liens on the
Collateral of the Credit Parties to the extent such Indebtedness constitutes “Notes Obligations”
under the Intercreditor Agreement and (iv) the other terms of such Indebtedness are on market terms
as determined in good faith by the Borrower.




          “Qualified Preferred Stock” shall mean any Preferred Equity of the Borrower, the
express terms of which shall provide that dividends thereon shall not be required to be paid at any
time (and to the extent) that such payment would be prohibited by the terms of this Agreement or
any other agreement of the Borrower or any of its Subsidiaries relating to outstanding indebtedness
and which, by its terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event (including any change of control event),
cannot mature (excluding any maturity as the result of an optional redemption by the issuer
thereof) and is not mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, and
is not redeemable, or required to be repurchased, at the sole option of the holder thereof
(including, without limitation, upon the occurrence of an change of control event), in whole or in
part, on or prior to 3 months following the Revolving Loan Maturity Date.




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




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




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




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







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          “Refinancing” shall mean the borrowing of the Tranche B-1 Term Loans and Tranche C-1
Term Loans on the Amendment No. 3 Effective Date under the Term Credit Agreement and the
application of the proceeds therefrom to repay in full the Tranche B Term Loans and the Tranche C
Term Loans outstanding under the Term Credit Agreement and redeem all of the outstanding Existing
2011 Senior Notes, the execution and delivery of Amendment No. 3 and the related amendment to the
Term Credit Agreement.




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




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




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




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




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




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




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




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




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




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




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




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




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






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thereof, the sum of then total outstanding Revolving Loans of Non-Defaulting Lenders and the
aggregate RL Percentages of all Non-Defaulting Lenders of the total outstanding Swingline Loans and
Letter of Credit Outstandings at such time).




          “Reserves” shall mean (a) reserves reasonably established by Administrative Agent from
time to time against Eligible Inventory pursuant to Section 2.01(d), (b) reserves established by
Administrative Agent from time to time against Eligible Inventory, in the full amount necessary to
cover all shipping and other charges for items shipped by boat, (c) reserves established by
Administrative Agent pursuant to specific terms of Credit Documents other than this Agreement, and
(d) such other reserves against Eligible Accounts or Eligible Inventory of the Borrower or any
Subsidiary Guarantor, that Administrative Agent may, in its Permitted Discretion, establish from
time to time, including, without limitation, (i) reserves established on account of any Liens which
may be prior in right to the First Priority Lien of Collateral Agent for the benefit of the ABL
Secured Parties, including, without limitation, any Liens which may be permitted under Section
10.03, (ii) Dilution Reserves (iii) PACA Reserves, (iv) Inbound Freight Reserves and (v) Rent
Reserves.




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




          “Restricted Subsidiary” of any Person shall mean any Subsidiary (as defined in the
Existing 2013 Senior Notes Indenture as in effect on the Amendment No. 3 Effective Date (without
giving effect to any termination thereof)) of such Person other than any Subsidiary (as so defined)
of such Person that is engaged primarily in the management, development and sale or financing of
real property.




          “Returns” shall have the meaning provided in Section 8.18.




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




          “Revolving Loan Commitment” shall mean, for each Lender, the aggregate amount of
Initial Revolving Loan Commitments and/or Extended Revolving Loan Commitments.




          “Revolving Loan Maturity Date” shall mean the earlier of (x) March 2, 2014 and (y) to
the extent any Existing 2014 Senior Notes are outstanding on December 14, 2013, December 14, 2013.




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




          “Revolving Participant” shall mean each Lender for whom the Fronting Lender will make
Euro Denominated Loans or Sterling Denominated Loans as set forth on Schedule I or a separate
written agreement between the Fronting Lender and such Lender.




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







-36-









 








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




          “Sale-Leaseback Transaction” shall mean the sale and leaseback of the corporate
aircraft named “Global Express” prior to the Initial Borrowing Date.




          “SEC” shall mean the Securities and Exchange Commission or any successor thereto.




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




          “Second-Tier Material Real Property” of any Person, shall mean any fee-owned (or
equivalent) Real Property acquired by such Person after the Amendment No. 3 Effective Date with a
value (determined using the initial purchase price paid by such Person for such Real Property) of
greater than $5,000,000 but less than or equal to $10,000,000.




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




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




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




          “Security Agreement” shall mean the Amended and Restated Security Agreement, dated as
of the Effective Date, executed and delivered by each Credit Party in the form of Exhibit J
(as amended, modified, restated and/or supplemented from time to time in accordance with the terms
hereof and thereof).




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




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




          “Senior Officer” shall mean senior executive management of the Borrower.




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




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







-37-









 








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




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




          “Significant Indebtedness” means any Indebtedness of any Credit Party of at least
$5,000,000.




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




          “Specified Indebtedness” shall mean, collectively, (i) the Existing Senior Notes, (ii)
any Qualified Indebtedness incurred pursuant to Section 10.04(a) and (iii) any Permitted
Refinancing Indebtedness in respect of the foregoing.




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




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




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




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




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




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






-38-









 







made any determination pursuant to Section 2.10(a)(i) in respect of Sterling Denominated
Loans, or in the circumstances described in clause (i) to the proviso to Section 2.10(b) in respect
of Sterling Loans, Sterling LIBOR determined pursuant to this definition shall instead be the rate
determined by the Administrative Agent as the all-in-cost of funds for the Administrative Agent to
fund the respective Sterling Denominated Loan with maturities comparable to the Interest Period
applicable thereto.




          “Subsidiary” of any Person shall mean and include (i) any corporation more than 50% of
whose stock of any class or classes having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of whether or not at the time stock of
any class or classes of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or indirectly through
one or more Subsidiaries of such Person and (ii) any partnership, association, limited liability
company, joint venture or other entity (other than a corporation) in which such Person directly or
indirectly through one or more Subsidiaries of such Person, has more than a 50% Equity Interest at
the time.




          “Subsidiaries Guaranty” shall mean the Amended and Restated Subsidiaries Guaranty,
dated as of Effective Date executed and delivered by each Subsidiary Guarantor in the form of
Exhibit G (as further amended, modified or supplemented from time to time in accordance
with the terms hereof and thereof).




          “Subsidiary Guarantor” shall mean (i) each Wholly-Owned Domestic Subsidiary of the
Borrower as of the Effective Date (other than the Excluded Domestic Subsidiary) and (ii) each other
Wholly-Owned Domestic Subsidiary of the Borrower created, established or acquired after the
Effective Date which executes and delivers a. Subsidiaries Guaranty, unless and until such time as
the respective Domestic Subsidiary ceases to constitute a Domestic Subsidiary or is released from
all of its obligations under its Subsidiaries Guaranty in accordance with the terms and provisions
thereof.




          “Supermajority Lenders” shall mean those, Non-Defaulting Lenders which would
constitute the Required Lenders under, and as defined in, this Agreement, if the reference to “a
majority” contained therein were changed to “66 2/3%”.




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




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




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




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




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




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




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







-39-









 








          “Term Credit Agreement” shall mean the Credit Agreement, dated as of the date hereof
and as amended to the Amendment No. 3 Effective Date, by and among the Borrower, the Bermuda
Company, various lending institutions party thereto, DBNY, as Administrative Agent and as Deposit
Bank, Banc of America Securities LLC, as Syndication Agent, the Bank of Nova Scotia, as
Documentation Agent and DBSI, as lead arranger and sole book running manager, as it may be further
amended, supplemented or otherwise modified from time to time in accordance with the terms herewith
and therewith.




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




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




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




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




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




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




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




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




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




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




          “Treasury Services Agreement” shall mean any agreement relating to treasury,
depositary and cash management services or automated clearinghouse transfer of funds.




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




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







-40-









 








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




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




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




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




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




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




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




          “U.S. GAAP” shall mean generally accepted accounting principles in the United States
of America as in effect from time to time.




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




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




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




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




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







-41-









 








          SECTION 2. Amount and Terms of Credit.




          2.01. The Commitments.




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




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







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




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


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           accordance with Section 9.01(o) after the Initial Borrowing Date for the purpose of
re-determining the Net Orderly Liquidation Value of the Eligible Inventory, and, as a result,
re-determining the Borrowing Base.




          (e) In the event that the Administrative Agent in its Permitted Discretion deems necessary or
desirable (i) to preserve or protect the Collateral, or any portion thereof, (ii) to enhance the
likelihood of repayment of the Obligations, or (iii) to pay any other amount chargeable to the
Borrower pursuant to the terms of this Agreement, including, without limitation, expenses and Fees,
in the event the Borrower is unable to comply with (A) the Borrowing Base limitations set forth in
Sections 2.01(a) or (B) the conditions precedent to the making of Revolving Loans or the issuance
of Letters of Credit set forth in Section 7, (x) the Lenders authorize the Administrative Agent,
for the account of the Lenders, to make Revolving Loans to the Borrower, which, in each case, may
only be made as Base Rate Loans (each, an “Agent Advance”) for a period commencing on the
date the Administrative Agent first receives a Notice of Borrowing requesting an Agent Advance
until the earlier of (i) the twentieth Business Day after such date, (ii) the date the Borrower is
again able to comply with the Borrowing Base limitations and the conditions precedent to the making
of Revolving Loans and issuance of Letters of Credit, or obtains an amendment or waiver with
respect thereto or (iii) the date the Required Lenders instruct the Administrative Agent to cease
making Agent Advances (in each case, the “Agent Advance Period”). The Administrative Agent
shall not make any Agent Advance to the extent that at such time the amount of such Agent Advance,
either (I) when added to the aggregate outstanding amount of all other Agent Advances made to the
Borrower at such time, would exceed 10% of the Borrowing Base at such time (based on the Borrowing
Base Certificate last delivered) or (II) which are incurred as Revolving Loans, when added to the
Aggregate Exposure as then in effect (immediately prior to the incurrence of such Agent Advance),
would exceed the Total Commitment at such time. It is understood and agreed that, subject to the
requirements set forth above, Agent Advances may be made by the Administrative Agent in its sole
discretion and that the Borrower shall have no right to require that any Agent Advances be made.
Agent Advances will be subject to periodic settlement with the Lenders pursuant to Section 2.04.




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




          2.03. Notice of Borrowing.




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


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           Borrowing, notice of such proposed Borrowing, of such Lender’s proportionate share thereof and
of the other matters required by the immediately preceding sentence to be specified in the Notice
of Borrowing.




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




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




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




          2.04. Disbursement of Funds.




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


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Administrative Agent. The Administrative Agent also shall be entitled to recover on demand
from such Lender or the Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available by the
Administrative Agent to the Borrower until the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (i) if recovered from such Lender, the overnight
Federal Funds Rate for the first three days and at the interest rate otherwise applicable to such
Loans for each day thereafter and (ii) if recovered from the Borrower, the rate of interest
applicable to the respective Borrowing, as determined pursuant to Section 2.08. Nothing in this
Section 2.04 shall be deemed to relieve any Lender from its obligation to make Loans hereunder or
to prejudice any rights which the Borrower may have against any Lender as a result of any failure
by such Lender to make Loans hereunder.




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





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




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




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



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



          2.05. Notes.




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




          (b) The Swingline Note issued to the Swingline Lender shall (i) be executed by the Borrower,
(ii) be payable to the order of the Swingline Lender or its registered assigns and be dated the
Initial Borrowing Date, (iii) be in a stated principal amount (expressed in Dollars) equal to the
Maximum Swingline Amount and be payable in Dollars in the principal amount of the outstanding
Swingline Loans evidenced thereby from time to time, (iv) mature on the Swingline Expiry Date, (v)
bear interest as provided in the appropriate clause of Section 2.08 in respect of the Base Rate
Loans evidenced thereby, (vi) be subject to voluntary prepayment as provided in Section 5.01 and
mandatory repayment as provided in Section 5.02 and (vii) be entitled to the benefits of this
Agreement and the other Credit Documents.




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




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






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appropriately completed to specify the Loans to be so converted, the Borrowing or Borrowings
pursuant to which such Loans were incurred and, if to be converted into Euro Rate Loans, the
Interest Period to be initially applicable thereto. The Administrative Agent shall give each
Lender prompt notice of any such proposed conversion affecting any of its Loans.




          2.07. Pro Rata Borrowings. All Borrowings of Revolving Loans under this Agreement shall be incurred from the Lenders
pro rata on the basis of their Revolving Loan Commitments as in effect at the time
of such Borrowing, provided that all Mandatory Borrowings shall be incurred from the
Lenders pro rata on the basis of their RL Percentages; provided,
further, that in the case of any Euro Denominated Loans or Sterling Denominated Loans, the
Fronting Lender shall make available each applicable Revolving Participant’s pro
rata share of such Revolving Loan; provided that the Fronting Lender shall not be
obligated to make available the pro rata portion of any Defaulting Lender’s
Revolving Loan. It is understood that no Lender shall be responsible for any default by any other
Lender of its obligation to make Loans hereunder and that each Lender shall be obligated to make
the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to
make its Loans hereunder. It is further understood that in determining the pro
rata share of the Fronting Lender in its capacity as such with respect to any Borrowing,
such pro rata share should be the sum of the pro rata share of such
Borrowing of all Revolving Participants (other than any Revolving Participant that is a Defaulting
Lender) on whose behalf the Fronting Lender is making available Loans included in such Borrowing.




          2.08. Interest.




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




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




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




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




          (e) Overdue principal and, to the extent permitted by law, overdue interest in respect of (1)
in the case of overdue principal of, and interest or other overdue amounts owing with respect to,
Euro Denominated Loans, equal to 2% per annum in excess of the relevant Applicable Margin as in
effect


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




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




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




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





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




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




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



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




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




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


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




          2.10. Increased Costs, Illegality, etc.




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





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




     (ii) at any time, that such Lender shall incur increased costs or reductions in the
amounts received or receivable hereunder with respect to any Euro Rate Loan because of (x)
any change since the Effective Date in any applicable law or governmental rule, regulation,
order, guideline or request (whether or not having the force of law) or in the
interpretation or administration thereof and including the introduction of any new law or
governmental rule, regulation, order, guideline or request, such as, for example, but not
limited to: (A) a change in the basis of taxation of payment to any Lender of the principal
of or interest on the Loans or the Notes or any other amounts payable hereunder (except for
changes in the rate of tax on, or determined by reference to, the net income or net profits
of such Lender imposed by the jurisdiction in which its principal office or applicable
lending office is located) or (B) a change in official reserve requirements, but, in all
events, excluding reserves required under Regulation D to the extent included in the
computation of the Eurodollar Rate and/or (y) other circumstances arising since the
Effective Date affecting such Lender, the interbank market or the position of



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such Lender in such market (whether or not such Lender was a Lender at the time of such
occurrence);




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




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


then, and in any such event, such Lender (or the Administrative Agent, in the case of clause (i)
above) shall promptly give notice (by telephone confirmed in writing) to the Borrower and, except
in the case of clause (i) above, to the Administrative Agent of such determination (which notice
the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (w) in
the case of clause (i) above, (A) in the event Eurodollar Loans are so affected, Eurodollar Loans
shall no longer be available until such time as the Administrative Agent notifies the Borrower and
the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer
exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by the Borrower with
respect to Eurodollar Loans which have not yet been incurred (including by way of conversion) shall
be deemed rescinded by the Borrower and (B) in the event that any Non-Dollar Denominated Loan is so
affected, the relevant Euro Rate shall be determined on the basis provided in the proviso to the
definition of the relevant Euro Rate, (x) in the case of clause (ii) above, the Borrower agrees to
pay to such Lender, upon written demand therefor, such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise as such Lender in
its sole discretion shall determine) as shall be required to compensate such Lender for such
increased costs or reductions in amounts received or receivable hereunder (with the written notice
as to the additional amounts owed to such Lender, submitted to the Borrower by such Lender in
accordance with the foregoing to be, absent manifest error, final and conclusive and binding on all
the parties hereto, although the failure to give any such notice shall not release or diminish any
of the Borrower’s obligations to pay additional amounts pursuant to this Section 2.10(a) upon the
subsequent receipt of such notice), (y) in the case of clause (iii) above, the Borrower or shall
take one of the actions specified in Section 2.10(b) as promptly as possible and, in any event,
within the time period required by law and (z) in the case of clause (iv) above, Non-Dollar
Denominated Loans denominated in the affected Non-Dollar Currency (exclusive of any such Non-Dollar
Denominated Loans which have theretofore been funded) shall no longer be available until such time
as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving
rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or
notice pursuant to Section 2.03(b)(i) given by the Borrower with respect to such Non-Dollar
Denominated Loans which have not been incurred shall be deemed rescinded by the Borrower. Each of
the Administrative Agent and each Lender agrees that if it gives notice to the Borrower of any of
the events described in clause (i), (ii), (iii) or (iv) above, it shall promptly notify the
Borrower and, in the case of any such Lender, the Administrative Agent, if such event ceases to
exist.




          (b) At any time that any Euro Rate Loan is affected by the circumstances described in Section
2.10(a)(ii) or (iii), the Borrower may (and in the case of a Euro Rate Loan affected by the
circumstances described in Section 2.10(a)(iii) shall) either (x) if the affected Euro Rate Loan is
then being made initially or pursuant to a conversion, cancel the respective Borrowing by giving
the


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




          (c) If any Lender determines that after the Effective Date the introduction of or any change
in any applicable law or governmental rule, regulation, order, guideline, directive or request
(whether or not having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by the NAIC or any Governmental Authority, central bank or
comparable agency, will have the effect of increasing the amount of capital required or expected to
be maintained by such Lender or any corporation controlling such Lender based on the existence of
such Lender’s Revolving Loan Commitments hereunder or its obligations hereunder, then the Borrower
agrees to pay to such Lender, upon its written demand therefor, such additional amounts as shall be
required to compensate such Lender or such other corporation for the increased cost to such Lender
or such other corporation or the reduction in the rate of return to such Lender or such other
corporation as a result of such increase of capital. In determining such additional amounts, each
Lender will act reasonably and in good faith and will use averaging and attribution methods which
are reasonable, provided that such Lender’s determination of compensation owing under this
Section 2.10(c) shall, absent manifest error, be final and conclusive and binding on all the
parties hereto. Each Lender, upon determining in good faith that any additional amounts will be
payable pursuant to this Section 2.10(c), will give prompt written notice thereof to the Borrower,
which notice shall set forth such Lender’s basis for asserting its rights under this Section
2.10(c) and the calculation, in reasonable detail, of such additional amounts claimed hereunder,
although the failure to give any such notice shall not release or diminish the Borrower’s
obligations to pay additional amounts pursuant to this Section 2.10(c) upon the subsequent receipt
of such notice. A Lender’s good faith determination of compensation owing under this Section
2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties
hereto.




          In the event that any Lender shall in good faith determine (which determination shall, absent
manifest error, be final and conclusive and binding on all parties hereto) at any time that such
Lender is required to maintain reserves (including, without limitation, any marginal, emergency,
supplemental, special or other reserves required by applicable law) which have been established by
any Federal, state, local or foreign court or governmental agency, authority, instrumentality or
regulatory body with jurisdiction over such Lender (including any branch, Affiliate or funding
office thereof) in respect of any Non-Dollar Denominated Loans or any category of liabilities which
includes deposits by reference to which the interest rate on any Non-Dollar Denominated Loan is
determined or any category






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of extensions of credit or other assets which includes loans by a non-United States office of
any Lender to non-United States residents, then, unless such reserves are included in the
calculation of the interest rate applicable to such Non-Dollar Denominated Loans or in Section
2.10(a)(ii), such Lender shall promptly notify the Borrower in writing specifying the additional
amounts required to indemnify such Lender against the cost of maintaining such reserves (such
written notice to provide in reasonable detail a computation of such additional amounts) and the
Borrower shall pay to such Lender such specified amounts as additional interest at the time that
the Borrower is otherwise required to pay interest in respect of such Non-Dollar Denominated Loan
or, if later, on written demand therefor by such Lender.




          2.11. Compensation. The Borrower agrees to compensate each Lender, upon its written request (which request
shall set forth in reasonable detail the basis for requesting such compensation), for all losses,
expenses and liabilities (including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required by such Lender to
fund its Eurodollar Loans but excluding loss of anticipated profits) which such Lender may sustain:
(i) if for any reason (other than a default by such Lender or the Administrative Agent) a
Borrowing of, or conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn by
the Borrower or deemed withdrawn pursuant to Section 2.10(a)); (ii) if any prepayment or repayment
(including any prepayment or repayment made pursuant to Section 5.01, Section 5.02 or as a result
of an acceleration of the Loans pursuant to Section 11) or conversion of any of its Eurodollar
Loans occurs on a date which is not the last day of an Interest Period with respect thereto; (iii)
if any prepayment of any of its Eurodollar Loans is not made on any date specified in a notice of
prepayment given by the Borrower; or (iv) as a consequence of (x) any other default by the Borrower
to repay Eurodollar Loans when required by the terms of this Agreement or any Note held by such
Lender or (y) any election made pursuant to Section 2.10(b). Each Lender’s calculation of the
amount of compensation owing pursuant to this Section 2.11 shall be made in good faith. A Lender’s
basis for requesting compensation pursuant to this Section 2.11 and a Lender’s calculation of the
amount thereof, shall, absent manifest error, be final and conclusive and binding on all parties
hereto.




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




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






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Administrative Agent
with identical Revolving Loan Commitments and/or Loans provided by the Replacement Lender;
provided that:





     (a) at the time of any replacement pursuant to this Section 2.13, the Replacement
Lender shall enter into one or more Assignment and Assumption Agreements pursuant to Section
13.04(b) (and with all fees payable pursuant to said Section 13.04(b) to be paid by the
Replacement Lender and/or the Replaced Lender (as may be agreed to at such time by and among
the Borrower, the Replacement Lender and the Replaced Lender)) pursuant to which the
Replacement Lender shall acquire all of the Revolving Loan Commitments and outstanding Loans
(or, in the case of the replacement of only the Revolving Loan Commitment, the Revolving
Loan Commitment and outstanding Revolving Loans and participations in Letter of Credit
Outstandings) of, and in each case all participations in Letters of Credit by, the Replaced
Lender and, in connection therewith, shall pay to (x) the Replaced Lender in respect thereof
an amount equal to the sum of (A) an amount equal to the principal of, and all accrued
interest on, all outstanding Loans of the Replaced Lender with respect to which such
Replaced Lender is being replaced, (B) an amount equal to all Unpaid Drawings (unless there
are no Unpaid Drawings) that have been funded by (and not reimbursed to) such Replaced
Lender, together with all then unpaid interest with respect thereto at such time and (C) an
amount equal to all accrued, but theretofore unpaid, Fees owing to the Replaced Lender
pursuant to Section 4.01, (y) each Issuing Lender an amount equal to such Replaced Lender’s
RL Percentage of any Unpaid Drawing relating to Letters of Credit issued by such Letter of
Credit Issuer (which at such time remains an Unpaid Drawing) to the extent such amount was
not theretofore funded by such Replaced Lender and (z) in the case of any replacement of
Revolving Loan Commitments, the Swingline Lender an amount equal to such Replaced Lender’s
RL Percentage of any Mandatory Borrowing to the extent such amount was not theretofore
funded by such Replaced Lender to the Swingline Lender; and




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


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







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          2.14. Incremental Commitments.




          (a) The Borrower shall have the right, in consultation and coordination with, Administrative
Agent as to all of the matters set forth below in this Section 2.14, but without requiring the
consent of any of the Lenders, to request at any time and from time to time after the Amendment No.
3 Effective Date and prior to the date which is three months prior to the Revolving Loan Maturity
Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and
which will become Lenders as provided below) provide Incremental Commitments, it being understood
and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as
a result of any such request by the Borrower, and until such time, if any, as such Lender has
agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to
the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in
clause (b) of this Section 2.14, such Lender shall not be obligated to fund any Revolving Loans or
participate in Swingline Loans or Letters of Credit in excess of its Commitment as in effect prior
to giving effect to such Incremental Commitment provided pursuant to this Section 2.14, (ii) any
Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental
Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments
on a given date pursuant to this Section 2.14 shall be in a minimum aggregate amount (for all
Lenders (including any Eligible Transferee who will become a lender)) of at least $10,000,000 and
in integral multiples of $5,000,000 in excess thereof, and (iv) the aggregate amount of all
Incremental Commitments provided pursuant to this Section 2.14 shall not exceed the Maximum
Incremental Commitment Amount.




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




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







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          2.15. Revolving Loans Refunding.




          (a) If any Default or Event of Default shall occur and be continuing, the Fronting Lender may,
in its sole and absolute discretion, direct that the Revolving Loans owing to it in its capacity as
such be refunded by delivering a notice (with such detail as the Administrative Agent shall
request, a “Notice of Revolving Loan Refunding”) to the Administrative Agent. Upon receipt
of such notice, the Administrative Agent shall promptly give notice of the contents thereof to the
applicable Revolving Participants. Each such Notice of Revolving Loan Refunding shall be deemed to
constitute delivery of a notice to the Administrative Agent requesting each applicable Revolving
Participant to fund its undivided Participating Interest in the outstanding Revolving Loans fronted
by the Fronting Lender whereupon each applicable Revolving Participant shall fund its pro rata
portion of such outstanding Revolving Loans and related Obligations (including accrued and unpaid
interest thereon) in an amount equal to such Revolving Participant’s share of the aggregate
principal amount of such Revolving Loans held by such Fronting Lender on behalf of such Revolving
Participant. Each Revolving Participant shall promptly transfer or, if a Notice of Revolving Loan
Refunding is delivered after 11:00 a.m. (New York City time), transfer by 11:00 a.m. (New York City
time) on the next Business Day, to the Fronting Lender, in immediately available funds, the amount
of its Participating Interest in the same currency as the underlying Revolving Loan was made by the
Fronting Lender (unless otherwise agreed by the applicable Fronting Lender and Revolving
Participant); provided, however, that if a Revolving Participant shall have
previously notified the Fronting Lender that it will make such payment in Dollars, such Revolving
Participant shall be permitted to transfer the Dollar Equivalent of the amount of its Participating
Interest.




          (b) Whenever, at any time after a Revolving Participant has funded its pro rata portion of the
outstanding Revolving Loans fronted by a Fronting Lender and related Obligations, such Fronting
Lender receives any payment on account thereof, such Fronting Lender will distribute to the
Administrative Agent for delivery to each such Revolving Participant its Participating Interest in
such amount (appropriately adjusted, in the case of interest payments, to reflect the period of
time during which such Revolving Participant’s Participating Interest was outstanding and funded);
provided, however, that in the event that such payment received by the Fronting
Lender is required to be returned, such Revolving Participant will return to the Administrative
Agent for delivery to the Fronting Lender any portion thereof previously delivered by the
Administrative Agent or the Fronting Lender to it.




          (c) Each Revolving Participant’s obligation to fund its portion of the outstanding Revolving
Loans fronted by a Fronting Lender on such Revolving Lender’s behalf and related Obligations
referred to in this Section 2.15 shall be absolute and unconditional and shall not be
affected by any circumstances, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Revolving Participant or the Borrower may have
against such Fronting Lender, any Revolving Participant, the Borrower or any other Person for any
reason whatsoever, (ii) the occurrence or continuance of an Event of Default, (iii) any adverse
change in the condition (financial or otherwise) of the Borrower, (iv) any breach of this Agreement
or any other Credit Document by any Credit Party or any other Revolving Participant, or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.




          (d) Notwithstanding anything in this Agreement to the contrary, if at any time the
Obligations, are converted to Dollars in accordance with Section 11, then each Revolving
Participant shall be deemed to have acquired its Participating Interest in the Revolving Loans and
related Obligations advanced by the Fronting Lender on its behalf immediately prior to such
conversion (and each such Revolving Participant shall promptly make payment to the Fronting Lender
therefor in accordance with the foregoing procedures).







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          SECTION 3. Letters of Credit.




          3.01. Letters of Credit.




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




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





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




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



          (c) Part A of Schedule XIX hereto contains a description of certain letters of credit issued
and outstanding on the Initial Borrowing Date (and setting forth, with respect to each such letter
of credit, (i) the name of the issuing lender, (ii) the letter of credit number, (iii) the name(s)
of the account party or account parties, (iv) the stated amount (including the currency in which
such letter of credit is denominated, which shall be Dollars or an Alternative Currency), (v) the
name of the beneficiary, (vi) the expiry date and (vii) whether such letter of credit constitutes a
standby letter of credit or a trade letter of credit). Each such letter of credit, including any
extension or renewal thereof (each, as amended from time to time in accordance with the terms
thereof and hereof, an “Existing Letter of Credit”) shall constitute a “Letter of Credit”
for all purposes of this Agreement and issued, for purposes of Section






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3.04(a), on the Initial Borrowing Date. Any Lender hereunder (and any of such Lender’s
Affiliates and/or branches) which has issued an Existing Letter of Credit shall constitute an
“Issuing Lender” for all purposes of this Agreement.




          3.02. Maximum Letter of Credit Outstandings; Final Maturities.




          (a) Notwithstanding anything to the contrary contained in this Agreement, (i) no Letter of
Credit shall be issued the Stated Amount of which, when added to the Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid on the date of, and prior to the issuance of, the
respective Letter of Credit) at such time would exceed either (x) $150,000,000, (y) when added to
the sum of (I) the aggregate principal amount of all Revolving Loans then outstanding and (II) the
aggregate principal amount of all Swingline Loans then outstanding, an amount equal to the Total
Commitment at such time or (z) cause the Aggregate Exposure to exceed the Borrowing Base at such
time (based on the Borrowing Base Certificate last delivered), (ii) each Letter of Credit shall by
its terms terminate (x) in the case of standby Letters of Credit, on or before the earlier of (A)
the date which occurs 12 months after the date of the issuance thereof (although any such standby
Letter of Credit may be extendible for successive periods of up to 12 months, but, in each case,
not beyond the fifth Business Day prior to the Revolving Loan Maturity Date, on terms acceptable to
the Issuing Lender) and (B) five Business Days prior to the Revolving Loan Maturity Date;
provided that a standby Letter of Credit issued to support obligations under any Specified
Existing Ship Lease may terminate by its terms on or prior to the earlier to occur of (1) the date
which occurs 24 months after the date of the issuance thereof and (2) the fifth Business Day
preceding the Revolving Loan Maturity Date, and (y) in the case of trade Letters of Credit, on or
before the earlier of (A) the date which occurs 180 days after the date of issuance thereof and (B)
30 days prior to the Revolving Loan Maturity Date and (iii) the Issuing Lender shall have no
obligation to issue, amend or extend any Letter of Credit at any time that a Lender Default is in
effect with respect to any Lender unless the Borrower shall have taken action satisfactory to the
Issuing Lender to eliminate the Issuing Lender’s exposure to such Lender (including by cash
collateralizing such Lender’s RL Percentage of such Letter of Credit).




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




          3.03. Letter of Credit Requests; Minimum Stated Amount.




          (a) Whenever the Borrower desires that a Letter of Credit be issued for its account, the
Borrower shall give the Administrative Agent and the respective Issuing Lender at least three
Business Days’ (or such shorter period as is acceptable to such Issuing Lender) written notice
thereof (including by way of facsimile) including without limitation by specifying the Available
Currency such Letter of Credit is to be denominated. Each notice shall be in the form of
Exhibit C, appropriately completed (each, a “Letter of Credit Request”).




          (b) The making of each Letter of Credit Request shall be deemed to be a representation and
warranty by the Borrower to the Lenders that such Letter of Credit may be issued in accordance
with, and will not violate the requirements of, Section 3.02. Unless the respective Issuing Lender
has received notice from the Borrower, any other Credit Party or the Required Lenders before it
issues a Letter of Credit that one or more of the conditions specified in Section 7 are not then
satisfied, or


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that the issuance of such Letter of Credit would violate Section 3.02, then such Issuing
Lender shall, subject to the terms and conditions of this Agreement, issue the requested Letter of
Credit for the account of the Borrower in accordance with such Issuing Lender’s usual and customary
practices. Upon the issuance of or modification or amendment to any standby Letter of Credit, each
Issuing Lender shall promptly notify the Borrower and the Administrative Agent, in writing of such
issuance, modification or amendment and such notice shall be accompanied by a copy of such Letter
of Credit or the respective modification or amendment thereto, as the case may be. Promptly after
receipt of such notice the Administrative Agent shall notify the Participants, in writing, of such
issuance, modification or amendment. On the first Business Day of each week, each Issuing Lender
shall furnish the Administrative Agent with a written (including via facsimile) report of the daily
aggregate outstandings of trade Letters of Credit issued by such Issuing Lender for the immediately
preceding week. Notwithstanding anything to the contrary contained in this Agreement, in the event
that a Lender Default exists with respect to a Lender, (i) no Issuing Lender shall be required to
issue any Letter of Credit unless such Issuing Lender has entered into arrangements satisfactory to
it and the Borrower to eliminate such Issuing Lender’s risk with respect to the participation in
Letters of Credit by the Defaulting Lender or Lenders, including by cash collateralizing such
Defaulting Lender’s or Lenders’ RL Percentage of the Letter of Credit Outstandings and (ii) upon
the occurrence of a Lender Default with respect to any Lender and within three Business Days of
receiving notice thereof from the Administrative Agent, the Borrower shall cash collateralize such
Defaulting Lender’s RL Percentage of each then outstanding Letter of Credit (for so long as a
Lender Default is in effect with respect to such Lender).




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




          3.04. Letter of Credit Participations.




          (a) Immediately upon the issuance by an Issuing Lender of any Letter of Credit, such Issuing
Lender shall be deemed to have sold and transferred to each Lender, and each such Lender (in its
capacity under this Section 3.04, a “Participant”) shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuing Lender, without recourse or
warranty, an undivided interest and participation, to the extent of such Participant’s RL
Percentage, in such Letter of Credit, each drawing or payment made thereunder and the obligations
of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty
pertaining thereto. Upon any change in the Revolving Loan Commitments or RL Percentages of the
Lenders pursuant to Section 2.13, 2.14 or 13.04(b), it is hereby agreed that, with respect to all
outstanding Letters of Credit and Unpaid Drawings relating thereto, there shall be an automatic
adjustment to the participations pursuant to this Section 3.04 to reflect the new RL Percentages of
the assignor and assignee Lender, as the case may be.




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







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




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




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




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





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




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



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




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




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



          3.05. Agreement to Repay Letter of Credit Drawings.




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




          (b) The obligations of the Borrower under this Section 3.05 to reimburse each Issuing Lender
with respect to drafts, demands and other presentations for payment under Letters of Credit issued
by it (each, a “Drawing”) (including, in each case, interest thereon) shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff, counterclaim or
defense to


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payment which the Borrower or any Subsidiary of the Borrower may have or have had against any
Lender (including in its capacity as an Issuing Lender or as a Participant), including, without
limitation, any defense based upon the failure of any drawing under a Letter of Credit to conform
to the terms of the Letter of Credit or any nonapplication or misapplication by the beneficiary of
the proceeds of such Drawing; provided, however, that the Borrower shall not be
obligated to reimburse any Issuing Lender for any wrongful payment made by such Issuing Lender
under a Letter of Credit issued by it as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of such Issuing Lender (as determined by a court of
competent jurisdiction in a final and non-appealable decision).




          3.06. Increased Costs. If at any time after the Effective Date, the introduction of or any change in any
applicable law, rule, regulation, order, guideline or request or in the interpretation or
administration thereof by the NAIC or any Governmental Authority charged with the interpretation or
administration thereof, or compliance by any Issuing Lender or any Participant with any request or
directive by the NAIC or by any such Governmental Authority (whether or not having the force of
law), shall either (i) impose, modify or make applicable any reserve, deposit, capital adequacy or
similar requirement against letters of credit issued by any Issuing Lender or participated in by
any Participant, or (ii) impose on any Issuing Lender or any Participant any other conditions
relating, directly or indirectly, to this Agreement or any Letter of Credit; and the result of any
of the foregoing is to increase the cost to any Issuing Lender or any Participant of issuing,
maintaining or participating in any Letter of Credit, or reduce the amount of any sum received or
receivable by any Issuing Lender or any Participant hereunder or reduce the rate of return on its
capital with respect to Letters of Credit (except for changes in the rate of tax on, or determined
by reference to, the net income or net profits of such Issuing Lender or such Participant pursuant
to the laws of the jurisdiction in which it is organized or in which its principal office or
applicable lending office is located or any subdivision thereof or therein), then, upon the
delivery of the certificate referred to below to the Borrower by any Issuing Lender or any
Participant (a copy of which certificate shall be sent by such Issuing Lender or such Participant
to the Administrative Agent), the Borrower agrees to pay to such Issuing Lender or such Participant
such additional amount or amounts as will compensate such Issuing Lender or such Participant for
such increased cost or reduction in the amount receivable or reduction on the rate of return on its
capital. Any Issuing Lender or any Participant, upon determining that any additional amounts will
be payable to it pursuant to this Section 3.06, will give prompt written notice thereof to the
Borrower, which notice shall include a certificate submitted to the Borrower by such Issuing Lender
or such Participant (a copy of which certificate shall be sent by such Issuing Lender or such
Participant to the Administrative Agent), setting forth in reasonable detail the basis for the
calculation of such additional amount or amounts necessary to compensate such Issuing Lender or
such Participant. The certificate required to be delivered pursuant to this Section 3.06 shall,
absent manifest error, be final and conclusive and binding on the Borrower.




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




          4.01. Fees.




          (a) The Borrower agrees to pay to the Administrative Agent for distribution to each
Non-Defaulting Lender a commitment commission (the “Commitment Commission”) for the period
from and including the Effective Date to and including the Revolving Loan Maturity Date for such
Lender’s Revolving Loan Commitment (or such earlier date on which the Total Commitment has been
terminated) computed at a rate per annum equal to the Applicable Commitment Commission Percentage
of the Unutilized Revolving Loan Commitment of such Non-Defaulting Lender as in effect from time to
time. Accrued Commitment Commission shall be due and payable quarterly in arrears on each
Quarterly Payment Date and on the date upon which the Total Commitment is terminated (and, in the
case of the Initial Revolving Loan Commitments, upon the Amendment No. 3 Effective Date).







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          (b) The Borrower agrees to pay to the Administrative Agent for distribution to each Lender
(based on each such Lender’s respective RL Percentage) a fee in respect of each Letter of Credit
(the “Letter of Credit Fee”) for the period from and including the date of issuance of such
Letter of Credit to and including the date of termination or expiration of such Letter of Credit,
computed at a rate per annum equal to the Applicable Margin as in effect from time to time during
such period with respect to Revolving Loans that are maintained as Eurodollar Loans on the daily
Stated Amount of each such Letter of Credit. Accrued Letter of Credit Fees shall be due and
payable quarterly in arrears on each Quarterly Payment Date (and, in the case of Letter of Credit
Fees payable to Lenders in respect of the Initial Revolving Loan Commitments, upon the Amendment
No. 3 Effective Date) and on the first day on or after the termination of the Total Commitment upon
which no Letters of Credit remain outstanding.




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




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




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




          4.02. Voluntary Termination of Unutilized Revolving Loan Commitments.




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




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


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owing to such Lender (including all amounts, if any, owing pursuant to Section 2.11 are repaid
concurrently with the effectiveness of such termination (at which time Schedule I shall be deemed
modified to reflect such changed amounts) and such Lender’s RL Percentage of all outstanding
Letters of Credit is cash collateralized in a manner satisfactory to the Administrative Agent and
the respective Issuing Lenders, and at such time, such Lender shall no longer constitute a “Lender”
for purposes of this Agreement, except with respect to indemnifications under this Agreement
(including, without limitation, Sections 2.10, 2.11, 3.06, 5.04, 12.06, 13.01 and 13.06), which
shall survive as to such repaid Lender.




          4.03. Mandatory Reduction of Commitments. To the extent not previously terminated in accordance with Section 4.02 or otherwise, (i)
each Initial Revolving Loan Commitment shall terminate on the Amendment No. 3 Effective Date
concurrently with the effectiveness of Amendment No. 3 and (ii) each Extended Revolving Loan
Commitment shall terminate on the Revolving Loan Maturity Date.




          4.04. Fees to Revolving Participants. When, as and only to the extent that interest is received by the Fronting Lender with
respect to any Revolving Loan actually funded by the Fronting Lender on behalf of any Revolving
Participant, the Fronting Lender shall pay such Revolving Participant a fee in Dollars equal to the
Dollar Equivalent of the Applicable Margin received by the Fronting Lender with respect to such
Revolving Loan for such period minus 0.25% per annum of the amount of such Revolving Loan
during the period with respect to which such interest was paid.




          SECTION 5. Prepayments; Payments; Taxes.




          5.01. Voluntary Prepayments.




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







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




          5.02. Mandatory Repayments and Commitment Reductions.




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




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




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






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




          (b) Not later than the fifth Business Day after the Borrower or any of its Subsidiaries
receives Net Sale Proceeds from any Asset Sale that is consummated after the Amendment No. 3
Effective Date, an amount equal to 100% of the Net Sale Proceeds from such Asset Sale shall be
applied as a mandatory repayment in accordance with the requirements of Section 5.02(e);
provided that (I) Net Sale Proceeds from any Asset Sale (other than (x) Net Sale Proceeds
from any Contemplated Asset Sale, (y) the proceeds from any sale of Principal Properties (other
than one Principal Property) made in reliance of Section 10.02(xiii) and (z) Net Sale Proceeds from
a Asset Sale of ABL Priority Collateral) shall not give rise to a mandatory repayment on such date
as otherwise required above, so long as no Specified Default and no Event of Default exists at the
time such Net Sale Proceeds are received and an Authorized Officer of the Borrower has delivered a
certificate to the Administrative Agent on or prior to such date stating that such Net Sale
Proceeds shall be used (or contractually committed to be used) to purchase capital assets used or
to be used in a Permitted Business (other than inventory) within 360 days following the date of
receipt of such Net Sale Proceeds from such Asset Sale; provided, however, that (I)
if all or any portion of such Net Sale Proceeds are not so used within such 360-day period (or
contractually committed within such period to be used), such remaining portion shall be applied on
the last day of such period as a mandatory repayment as provided above (without giving effect to
the immediately preceding proviso) and (II) if all or any portion of such Net Sale Proceeds are not
required to be applied on the last day of such 360-day period referred to in clause (I) of this
proviso because such amount is contractually committed within such period to be used and then
either (A) subsequent to such date such contract is terminated or expires without such portion
being so used or (B) such contractually committed portion is not so used within six months after
the last day of such 360-day period referred to in clause (I) of this proviso, such remaining
portion, in the case of either of the preceding clauses (A) or (B), shall be applied as a mandatory
repayment as provided above (without giving effect to the immediately preceding proviso).




          (c) On each date on or after the Amendment No. 3 Effective Date on which the Borrower or any
of its Subsidiaries receives any cash proceeds from any incurrence of Indebtedness which is not
permitted to be incurred by this Agreement, an amount equal to 100% of the Net Cash Proceeds of the
respective incurrence of Indebtedness shall be applied as a mandatory repayment in accordance with
the requirements of Section 5.02(e).




          (d) Within 10 days following each date on or after the Amendment No. 3 Effective Date on which
the Borrower or any of its Subsidiaries receives any proceeds from any Recovery Event (other than
proceeds from Recovery Events in an amount less than $10,000,000 per Recovery Event), an amount
equal to 100% of the proceeds of such Recovery Event (net of reasonable costs (including, without
limitation, legal costs and expenses) and taxes incurred in connection with such Recovery Event and
the amount of such proceeds required to be used to repay any Indebtedness (other than Indebtedness
of the Lenders pursuant to this Agreement) which is secured by the respective assets subject to
such Recovery Event) shall be applied as a mandatory repayment and/or commitment reduction in
accordance with the requirements of Section 5.02(e); provided that so long as no Specified
Default and no Event of Default then exists, such proceeds (other than any proceeds from a Recovery
Event with respect to ABL Priority Collateral) shall not be required to be so applied on such date
to the extent that an Authorized Officer of the Borrower has delivered a certificate to the
Administrative Agent on or prior to such date


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stating that such proceeds shall be used (or contractually committed to be used) within 360
days following the date of receipt of such proceeds from such Recovery Event to replace or restore
any properties or assets in respect of which such proceeds were paid, and provided
further, that (I) if all or any portion of such proceeds are not so used (or contractually
committed to be used) within such 360-day period, such remaining portion shall be applied as a
mandatory repayment and/or commitment reduction as provided above (without giving effect to the
immediately preceding proviso) and (II) if all or any portion of such proceeds are not required to
be applied on the last day of such 360-day period referred to in clause (I) of this proviso because
such amount is contractually committed to be used and then either (A) subsequent to such date such
contract is terminated or expires without such portion being so used or (B) such contractually
committed portion is not so used within six months after the last day of such 360-day period
referred to in clause (I) of this proviso, such remaining portion, in the case of either of the
preceding clauses (A) or (B), shall be applied as a mandatory repayment and/or commitment reduction
as provided above (without giving effect to the immediately preceding proviso).




          (e) Each amount required to be applied pursuant to Sections 5.02(b), (c) and (d) in accordance
with this Section 5.02(e) (other than any Net Sale Proceeds from a Asset Sale or proceeds from a
Recovery Event, in each case, with respect to any ABL Priority Collateral) shall be applied
first, to repay outstanding Term Loans under the Term Credit Agreement to the extent
required thereunder, second, to repay Swingline Loans, and third to repay Revolving
Loans in each case without any reduction in the Revolving Loan Commitments; provided that
any Net Sale Proceeds from a Asset Sale or proceeds from a Recovery Event, in each case, with
respect to any ABL Priority Collateral shall not be applied to repay outstanding Term Loans under
the Term Credit Agreement but shall be applied first to repay Swingline Loans, and
second to repay Revolving Loans in each case without any reduction in the Revolving Loan
Commitments.




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




          (g) All then outstanding (i) Revolving Loans made pursuant to the Initial Revolving Loan
Commitments shall be repaid in full on the Amendment No. 3 Effective Date, (ii) Revolving Loans
made pursuant to the Extended Revolving Loan Commitments shall be repaid in full on the Revolving
Loan Maturity Date and (iii) Swingline Loans shall be repaid on the Swingline Expiry Date.




          (h) Each Swingline Loan will be repaid (for the avoidance of doubt, such repayment may be made
with proceeds from Revolving Loans) no later than the seventh day following the incurrence thereof;
provided that, if the seventh day is not a Business Day, such Swingline Loan shall be
repaid on the next Business Day.




          (i) For purposes of clarity, it is understood and agreed that none of Sections 5.02(b) through
(d), inclusive, shall require that amounts received by any Foreign Subsidiary or Foreign


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Subsidiaries be used to repay Obligations owed by any Credit Parties, but that such Sections
merely determine the amounts required to be applied by the Borrower to the repayment of its
Obligations as more fully described in this Section 5.02.




          5.03. Method and Place of Payment; Payments and Computations; Maintenance of Accounts;
Statement of Accounts.




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




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




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




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


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corporate purposes, all subject to the requirements of this Section 5.03(d) and pursuant to
procedures and arrangements to be determined by the Administrative Agent. If an Event of Default
or Compliance Period exists, all collected amounts held in the Core Concentration Account shall be
applied as provided in Section 5.03(e).




          (e) During the continuance of a Compliance Period and upon and during the continuance of an
Event of Default, all collected amounts held in the Core Concentration Account shall be distributed
and applied on a daily basis in the following order (in each case, to the extent the Administrative
Agent has actual knowledge of the amounts owing or outstanding as described below and any
applications otherwise described in following clauses (x) and (y), and after giving effect to the
application of any such amounts (x) otherwise required to be applied pursuant to Sections 5.02(b),
(c), (d), (e), (f) or (g) or (y) constituting proceeds from any Collateral otherwise required to be
applied pursuant to the terms of the respective Security Document): (1) first, to the
payment (on a ratable basis) of any outstanding Expenses actually due and payable to the
Administrative Agent and/or the Collateral Agent under any of the Credit Documents and to repay or
prepay outstanding Swingline Loans and Revolving Loans advanced by the Administrative Agent on
behalf of the Lenders pursuant to Sections 2.01(e) and 2.04(b); (2) second, to the extent
all amounts referred to in preceding clause (1) have been paid in full, to pay (on a ratable basis)
all outstanding Expenses actually due and payable to each Issuing Lender under any of the Credit
Documents and to repay all outstanding Unpaid Drawings and all interest thereon; (3) third,
to the extent all amounts referred to in preceding clauses (1) and (2) have been paid in full, to
pay (on a ratable basis) all accrued and unpaid interest actually due and payable on the Revolving
Loans and all accrued and unpaid Fees actually due and payable to the Administrative Agent, the
Issuing Lenders and the Lenders under any of the Credit Documents; (4) fourth, to the
extent all amounts referred to in preceding clauses (1) through (3), inclusive, have been paid in
full, to repay (on a ratable basis) the outstanding principal of Revolving Loans (whether or not
then due and payable), and (5) fifth, to the extent all amounts referred to in preceding
clauses (1) through (4), inclusive, have been paid in full, to pay (on a ratable basis) all other
outstanding Obligations then due and payable to the Administrative Agent, the Collateral Agent and
the Lenders under any of the Credit Documents.




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




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







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          5.04. Net Payments.




          (a) All payments made by the Borrower hereunder and under any Note (which, for purposes of
this Section 5.04 shall be deemed to include any payments made by the Fronting Lender to any
Revolving Participant pursuant to Section 4.04) will be made without setoff, counterclaim or other
defense. Except as provided in Section 5.04(b), all such payments will be made free and clear of,
and without deduction or withholding for, any present or future taxes, levies, imposts, duties,
fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction
or by any political sub-division or taxing authority thereof or therein with respect to such
payments (but excluding, except as provided in the second succeeding sentence, any tax imposed on
or measured by the net income or net profits of a Lender (which, for purposes of this Section 5.04
shall be deemed to include any Revolving Participant in respect of payments made pursuant to
Section 4.04) pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction
in which the principal office or applicable lending office of such Lender is located or any
subdivision thereof or therein) and all interest, penalties or similar liabilities with respect to
such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges (all such
non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to
collectively as “Taxes”). If any Taxes are so levied or imposed, the Borrower agrees to
pay the full amount of such Taxes, and such additional amounts as may be necessary so that every
payment of all amounts due under this Agreement or under any Note, after withholding or deduction
for or on account of any Taxes by the Borrower, the Administrative Agent or the Fronting Lender,
will not be less than the amount provided for herein or in such Note. If any amounts are
payable in respect of Taxes pursuant to the preceding sentence, the Borrower agrees to reimburse
each Lender, upon the written request of such Lender, for taxes imposed on or measured by the net
income or net profits of such Lender pursuant to the laws of the jurisdiction in which such Lender
is organized or in which the principal office or applicable lending office of such Lender is
located or under the laws of any political subdivision or taxing authority of any such jurisdiction
in which such Lender is organized or in which the principal office or applicable lending office of
such Lender is located and for any withholding of taxes as such Lender shall determine are payable
by, or withheld from, such Lender, in respect of such amounts so paid to or on behalf of such
Lender pursuant to the preceding sentence and in respect of any amounts paid to or on behalf of
such Lender pursuant to this sentence. The Borrower will furnish to the Administrative Agent
within 45 days after the date the payment of any Taxes is due pursuant to applicable law certified
copies of tax receipts evidencing such payment by the Borrower. The Borrower agrees to indemnify
and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount
of any Taxes so levied or imposed and paid by such Lender.




          (b) Each Lender that is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes agrees to deliver to the Borrower and
the Administrative Agent and (if applicable) the Fronting Lender on or prior to the Effective Date
or, in the case of a Lender that is an assignee or transferee of an interest under this Agreement
pursuant to Section 2.13 or 13.04(b) (unless the respective Lender was already a Lender hereunder
immediately prior to such assignment or transfer), on the date of such assignment or transfer to
such Lender, (i) two accurate and complete original signed copies of Internal Revenue Service Form
W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) (or
successor forms) certifying to such Lender’s entitlement as of such date to a complete exemption
from United States withholding tax with respect to payments to be made under this Agreement and
under any Note, or (ii) if the Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of
the Code and cannot deliver either Internal Revenue Service Form W-8ECI or Form W-8BEN (with
respect to a complete exemption under an income tax treaty) (or any successor forms) pursuant to
clause (i) above, (x) a certificate substantially in the form of Exhibit D (any such
certificate, a “Section 5.04(b)(ii) Certificate”) and (y) two accurate and complete
original signed copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio


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interest exemption) (or successor form) certifying to such Lender’s entitlement as of such
date to a complete exemption from United States withholding tax with respect to payments of
interest to be made under this Agreement and under any Note. In addition, each Lender agrees that
from time to time after the Effective Date, when a lapse in time or change in circumstances renders
the previous certification obsolete or inaccurate in any material respect, such Lender will deliver
to the Borrower and the Administrative Agent two new accurate and complete original signed copies
of Internal Revenue Service Form W-8ECI, Form W-8BEN (with respect to the benefits of any income
tax treaty), or Form W-8BEN (with respect to the portfolio interest exemption) and a Section
5.04(b)(ii) Certificate, as the case may be, and such other forms as may be required in order to
confirm or establish the entitlement of such Lender to a continued exemption from or reduction in
United States withholding tax with respect to payments under this Agreement and any Note, or such
Lender shall immediately notify the Borrower and the Administrative Agent of its inability to
deliver any such Form or Certificate, in which case such Lender shall not be required to deliver
any such Form or Certificate pursuant to this Section 5.04(b). Notwithstanding anything to the
contrary contained in Section 5.04(a), but subject to Section 13.04(b) and the immediately
succeeding sentence, (x) the Borrower, the Administrative Agent or the Fronting Lender (as
applicable) shall be entitled, to the extent it is required to do so by law, to deduct or withhold
income or similar taxes imposed by the United States (or any political subdivision or taxing
authority thereof or therein) from interest, Fees or other amounts payable hereunder for the
account of any Lender which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent that such Lender has
not provided U.S. Internal Revenue Service Forms that establish a complete exemption from such
deduction or withholding and (y) the Borrower shall not be obligated pursuant to Section 5.04(a) to
gross-up payments to be made to a Lender (other than any amounts payable by a Fronting Lender to a
Revolving Participant pursuant to Section 4.04) in respect of income or similar taxes imposed by
the United States if (I) such Lender has not provided the Internal Revenue Service Forms required
to be provided pursuant to this Section 5.04(b) or (II) in the case of a payment, other than
interest, to a Lender described in clause (ii) above, to the extent that such forms do not
establish a complete exemption from withholding of such taxes. Notwithstanding anything to the
contrary contained in the preceding sentence or elsewhere in this Section 5.04 and except as set
forth in Section 13.04(b), the Borrower agrees to pay any additional amounts and to indemnify each
Lender in the manner set forth in Section 5.04(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any amounts deducted or withheld
by it as described in the immediately preceding sentence as a result of any changes that are
effective after the Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting or withholding of
such Taxes.




          SECTION 6. [Reserved].




          SECTION 7. Conditions Precedent to All Credit Events.




          The obligation of each Lender to make Loans (including Loans made on the Initial Borrowing
Date), and the obligation of each Issuing Lender to issue Letters of Credit (including Letters of
Credit issued, or Existing Letters of Credit deemed issued, on the Initial Borrowing Date), is
subject, at the time of each such Credit Event (except as hereinafter indicated), to the
satisfaction of the following conditions:




          7.01. Limitation on Cash on Hand. The aggregate amount of Unrestricted Cash owned or held by the Borrower and its Domestic
Subsidiaries (determined after giving pro forma effect to the making of each such
Revolving Loan and/or Swingline Loan and the application of proceeds therefrom and from any other
Unrestricted Cash on hand (to the extent such proceeds and/or other Unrestricted Cash are actually
utilized by the Borrower and/or any other Subsidiary of the Borrower on






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the date of the incurrence of the respective such Revolving Loan and/or Swingline Loan for a
permitted purpose under this Agreement other than an investment in Cash Equivalents)) shall not
exceed $25,000,000 for more than five consecutive Business Days (for purposes of Unrestricted Cash
denominated in a currency other than Dollars, taking the Dollar Equivalent of such Unrestricted
Cash as determined on the date of the incurrence of the respective such Revolving Loan and/or
Swingline Loan).




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




          7.03. Notice of Borrowing; Letter of Credit Request.




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




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




          The acceptance of the benefits of each Credit Event shall constitute a representation and
warranty by the Borrower to the Administrative Agent and each of the Lenders that all the
conditions specified in this Section 7 (with respect to Credit Events on or after the Initial
Borrowing Date) and applicable to such Credit Event are satisfied as of that time.




          SECTION 8. Representations, Warranties and Agreements.




          In order to induce the Lenders to enter into this Agreement, to make (and/or continue) the
Loans and issue and/or participate in the Letters of Credit as provided for herein, the Borrower
makes the following representations, warranties and agreements with the Lenders, all of which shall
survive the execution and delivery of this Agreement, the making of the Loans and the issuance (or
deemed issuance) of the Letters of Credit:




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




          8.02. Company Power and Authority. Each Credit Party and each Subsidiary thereof has the Company power and authority to
execute, deliver and carry out the terms and provisions of the Credit Documents to which it is a
party and has taken all necessary Company action to authorize the execution, delivery and
performance of the Credit Documents to which it is a party. Each Credit Party and each Subsidiary
thereof has duly executed and delivered each Credit Document to which it is a party






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and each such Credit Document constitutes the legal, valid and binding obligation of such
Credit Party enforceable in accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws generally affecting creditors’ rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law).




          8.03. No Violation.




          (a) Neither the execution, delivery or performance by any Credit Party or any Subsidiary
thereof of the Documents to which it is a party, nor compliance by any Credit Party or any such
Subsidiary with the terms and provisions thereof, nor the consummation of the transactions
contemplated herein or therein, (i) will contravene any material provision of any applicable law,
statute, rule or regulation, or any order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict or be inconsistent with or result in any breach of, any of the
terms, covenants, conditions or provisions of, or constitute a default under, or (other than
pursuant to the Security Documents) result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the material property or assets of the Borrower or any of
its Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement,
credit agreement or any other material agreement, contract or instrument to which the Borrower or
any of its Subsidiaries is a party or by which it or any of its material property or assets are
bound or to which it may be subject or (iii) will violate any provision of the certificate of
incorporation, by-laws, certificate of partnership, partnership agreement, certificate of limited
liability company, limited liability company agreement or equivalent organizational document, as
the case may be, of the Borrower or any of its Subsidiaries.




          8.04. Litigation. There are no actions, suits, proceedings or investigations pending or, to the knowledge of
any Senior Officer, threatened that have had, or could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect. Additionally, there does not exist any judgment,
order or injunction prohibiting or imposing material adverse conditions upon the occurrence of any
Credit Event.




          8.05. Use of Proceeds; Margin Regulations.




          (a) All proceeds of Revolving Loans and Swingline Loans shall be used for the Borrower’s and
its Subsidiaries’ ongoing working capital requirements and general corporate purposes (including to
effect Permitted Acquisitions (to the extent permitted by this Agreement)).




          (b) At the time of each Credit Event occurring on or after the Amendment No. 3 Effective Date,
the aggregate value of all Margin Stock (other than treasury stock) owned by the Borrower and its
Subsidiaries (for such purpose, using the initial purchase price paid by the Borrower or such
Subsidiary for the respective shares of Margin Stock) does not exceed $10,000,000. Neither the
making of any Loan nor the use of the proceeds thereof nor the occurrence of any other Credit Event
will violate or be inconsistent with the provisions of Regulation T, Regulation U or Regulation X.




          8.06. Governmental Approvals. Except as may have been obtained or made on or prior to the Amendment No. 3 Effective Date
(and which remain in full force and effect on the Amendment No. 3 Effective Date), no order,
consent, approval, license, authorization or validation of, or filing, recording or registration
with, or exemption by, any foreign or domestic governmental or public body or authority, or any
subdivision thereof, is required to authorize or is required in connection with (i) the execution,
delivery and performance of any Document or (ii) the legality, validity, binding effect or
enforceability of any Document.







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




          8.08. True and Complete Disclosure. All factual information (taken as a whole) heretofore or contemporaneously furnished by or
on behalf of the Borrower or any of its Subsidiaries in writing to any Agent or any Lender
(including, without limitation, all information contained in the Documents) for purposes of or in
connection with this Agreement, the other Documents or any transaction contemplated herein or
therein is, and all other such factual information (taken as a whole) hereafter furnished by or on
behalf of any such Persons in writing to any Agent or any Lender will be, true and accurate in all
material respects on the date as of which such information is dated or certified and not incomplete
by omitting to state any material fact necessary to make such information (taken as a whole) not
misleading in any material respect at such time in light of the circumstances under which such
information was provided, it being understood and agreed that for purposes of this Section 8.08,
such factual information shall not include the Projections or any projected financial information
contained in any financial projections delivered pursuant to Section 9.01.




          8.09. Financial Condition; Financial Statements.




          (a) On and as of the Amendment No. 3 Effective Date, on a pro forma basis
after giving effect to the Refinancing, with respect to each Borrower (on a stand-alone basis) and
the Borrower and its Subsidiaries (on a consolidated basis) (x) the sum of the assets, at a fair
valuation, of the Borrower (on a stand-alone basis) and the Borrower and its Subsidiaries (on a
consolidated basis) will exceed its or their debts, (y) it has or they have not incurred nor
intended to, nor believes or believe that it or they will, incur debts beyond its or their ability
to pay such debts as such debts mature and (z) it or they will have sufficient capital with which
to conduct its or their business. For purposes of this Section 8.09(a), “debt” means any liability
on a claim, and “claim” means (i) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured or (ii) right to an equitable remedy for breach of
performance if such breach gives rise to a payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured. The amount of contingent liabilities at any time shall be computed as the amount
that, in the light of all facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.




          (b) The audited consolidated statements of financial condition of the Borrower and its
Consolidated Subsidiaries at December 30, 2006, December 29, 2007 and January 3, 2009 and the
related consolidated statements of income and cash flows and changes in shareholders’ equity of the
Borrower and its Consolidated Subsidiaries for the fiscal years of the Borrower ended on such
dates, in each case furnished to the Lenders prior to the Amendment No. 3
Effective Date, present fairly in all material respects the
consolidated financial position of the Borrower and its Consolidated Subsidiaries at the date of
said financial statements and the results for the respective periods covered thereby. All of the
financial statements referred to in the immediately preceding sentence have been prepared in
accordance with U.S. GAAP consistently applied, except to the extent provided in the notes to said
financial statements.




          (c) Since January 3, 2009, nothing has occurred that has had, or could reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.




          (d) Except as fully reflected in the financial statements described in Section 8.09(b) and as
otherwise permitted by Section 10.04, (i) there were as of the Amendment No. 3 Effective Date


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(and after giving effect to any Loans made on such date), no liabilities or obligations with
respect to the Borrower or any of its Subsidiaries of any nature whatsoever (whether absolute,
accrued, contingent or otherwise and whether or not due) which, either individually or in the
aggregate, could reasonably be expected to be material to the Borrower and its Subsidiaries taken
as a whole and (ii) the Borrower does not know of any basis for the assertion against the Borrower
or any of its Subsidiaries of any such liability or obligation which, either individually or in the
aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect.




          (e) The Projections have been prepared on a basis consistent with the financial statements
referred to in Section 8.09(b) and are based on good faith estimates and assumptions made by the
management of the Borrower, and on the Amendment No. 3 Effective Date, the Borrower believe that
the Projections are reasonable and attainable, it being recognized by the Lenders that such
projections of future events are not to be viewed as facts and that actual results during the
period or periods covered by any such Projections may differ from the projected results contained
therein. There is no fact known to the Borrower or any of its Subsidiaries which has had, or could
reasonably be expected to have, a Material Adverse Effect, which has not been disclosed herein or
in such other documents, certificates and statements furnished to the Lenders for use in connection
with the transactions contemplated hereby.




          8.10. Security Interests. On and after the Amendment No. 3 Effective Date, each of the Security Documents creates (or
after the execution and delivery thereof will create), as security for the Obligations covered
thereby, a valid and enforceable perfected security interest in and Lien on all of the Collateral
subject thereto, superior to and prior to the rights of all third Persons, and subject to no other
Liens (except that, subject to the provisions of the Intercreditor Agreement, (i) the Security
Agreement Collateral may be subject to Permitted Liens, (ii) the Pledge Agreement Collateral may be
subject to the Liens described in clauses (i) and (v) of Section 10.03 and clause (y) of Section
10.03(iii) and (iii) the security interest and mortgage lien created on any Mortgaged Property may
be subject to the Permitted Encumbrances related thereto), in favor of the Collateral Agent (or
such other trustee or sub-agent as may be required or desired under local law). No filings or
recordings are required in order to perfect and/or render enforceable as against third parties the
security interests created under any Security Document except for filings or recordings required in
connection with any such Security Document which shall have been made on or prior to the Effective
Date or on or prior to the execution and delivery thereof as contemplated by Section 9.11.




          8.11. Compliance with ERISA.




          (a) Schedule VI sets forth, as of the Amendment No. 3 Effective Date, each Plan and each
Multiemployer Plan. Each Plan (and each related trust, insurance contract or fund) is in
compliance in all respects with its terms and in all respects with all applicable laws, including,
without limitation, ERISA and the Code, except to the extent that any such noncompliances,
individually or in the aggregate, would not result in a Material Adverse Effect; except as would
not reasonably be expected to have a Material Adverse Effect, each Plan (and each related trust, if
any) which is intended to be qualified under Section 401(a) of the Code has received a
determination letter from the Internal Revenue Service to the effect that it meets the requirements
of Sections 401(a) and 501(a) of the Code (or the sponsor has applied for such determination letter
within the remedial amendment period); except as would not reasonably be expected to have a
Material Adverse Effect, (1) no Reportable Event has occurred; (2) to the knowledge of any Senior
Officer, no Multiemployer Plan is insolvent or in reorganization; (3) no Plan has an Unfunded
Current Liability; (4) no Plan which is subject to Section 412 of the Code or Section 302 of ERISA
has an accumulated funding deficiency, within the meaning of such Sections of the Code or ERISA, or
has applied for or received a waiver of an accumulated funding deficiency or an extension of any
amortization period, within the meaning of Section 412 of the Code or Section 303 or 304 of ERISA;


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




          (b) Except as would not reasonably be expected to have a Material Adverse Effect, each Foreign
Pension Plan has been maintained in substantial compliance with its terms and with the requirements
of any and all applicable laws, statutes, rules, regulations and orders and has been maintained,
where required, in good standing with applicable regulatory authorities. Except as would not
reasonably be expected to have a Material Adverse Effect, all required contributions with respect
to a Foreign Pension Plan have been made. Except as would not reasonably be expected to have a
Material Adverse Effect, neither the Borrower nor any of its Subsidiaries has incurred any material
outstanding obligation in connection with the termination of or withdrawal from any Foreign Pension
Plan. Except as would not reasonably be expected to have a Material Adverse Effect, the present
value of the accrued benefit liabilities (whether or not vested) under each Foreign Pension Plan,
determined as of the end of the Borrower ’s most recently ended fiscal year on the basis of
actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets
of such Foreign Pension Plan allocable to such benefit liabilities or alternatively, the Foreign
Pension Plan is funded in compliance with applicable law in all material respects and the Borrower
and its Subsidiaries have established adequate reserves for the present value of such accrued
benefit liabilities under such Foreign Pension Plan in the financial statements delivered pursuant
to Section 9.01(a) and (b).




          8.12. Subsidiaries. Schedule VIII correctly sets forth, as of the Amendment No. 3 Effective Date, (i) the
percentage ownership (direct and indirect) of the Borrower in each class of capital stock or other
Equity Interests of each of its Subsidiaries and also identifies the direct owner thereof and (ii)
the jurisdiction of organization of each such Subsidiary. All outstanding shares of capital stock
or






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other Equity Interests of each Subsidiary of the Borrower have been duly and validly issued,
are fully paid and non-assessable and, have been issued free of preemptive rights. Except as set
forth on Part B of Schedule VII attached hereto, no Subsidiary of the Borrower, as of the Amendment
No. 3 Effective Date, has outstanding (i) any securities convertible into or exchangeable for its
capital stock or other Equity Interests (ii) any right to subscribe for or to purchase, or any
options or warrants for the purchase of, or any agreement providing for the issuance (contingent or
otherwise) of or any calls, commitments or claims of any character relating to, its capital stock
or (iii) other Equity Interests or any stock appreciation or similar rights. Except for the
existing investments described on Schedule IX, as of the Amendment No. 3 Effective Date, neither
the Borrower nor any of its Subsidiaries owns or holds, directly or indirectly, any capital stock
or equity security of, or any other Equity Interests in, any Person other than its Subsidiaries
indicated on Schedule VIII.




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




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




          8.15. Environmental Matters. Except as would not reasonably be expected to have a Material Adverse Effect, each of the
Borrower and each of its Subsidiaries has complied with, and on the date of each Credit Event is in
compliance with, all applicable Environmental Laws and the requirements of any permits issued under
such Environmental Laws and neither the Borrower nor any of its Subsidiaries is liable for any
penalties, fines or forfeitures for failure to comply with any of the foregoing. Except as would
not reasonably be expected to have a Material Adverse Effect, there are no pending or past or, to
the knowledge of any Senior Officer, threatened Environmental Claims against the Borrower or any of
its Subsidiaries or any Real Property owned, leased or operated by the Borrower or any of its
Subsidiaries (including any such claim arising out of the ownership, lease or operation by the
Borrower or any of its Subsidiaries of any Real Property formerly owned, leased or operated by the
Borrower or any of its Subsidiaries but no longer owned, leased or operated by the Borrower or any
of its Subsidiaries). Except as would not reasonably be expected to have a Material Adverse
Effect, there are no facts, circumstances, conditions or occurrences on any Real Property owned,
leased or operated by the Borrower or any of its Subsidiaries (including, to the knowledge of a
Senior Officer, any Real Property formerly owned, leased or operated by the Borrower or any of its
Subsidiaries but no longer owned, leased or operated by the Borrower or any of its Subsidiaries) or
on any property adjoining or in the vicinity of any such Real Property that would reasonably be
expected (i) to form the basis of an Environmental Claim against the Borrower or any of its
Subsidiaries or any such Real Property or (ii) to cause any such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability of such Real Property by the
Borrower or any of its Subsidiaries under any applicable Environmental Law.







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          Except as would not reasonably be expected to have a Material Adverse Effect, Hazardous
Materials have not at any time been generated, used, treated or stored on, or transported to or
from, any Real Property owned, leased or operated by the Borrower or any of its Subsidiaries except
in compliance with all applicable Environmental Laws and in connection with the operation, use and
maintenance of such Real Property by the Borrower’s or such Subsidiary’s business. Except as would
not reasonably be expected to have a Material Adverse Effect, Hazardous Materials have not at any
time been Released on or from any Real Property owned, leased or operated by the Borrower or any of
its Subsidiaries or by any person acting for or under contract to the Borrower or any of its
Subsidiaries, or to the knowledge of the Borrower, by any other Person in respect of Real Property
owned, leased or operated by the Borrower or any of its Subsidiaries (including, to the knowledge
of the Borrower, any Real Property owned, leased or operated by the Borrower or any of its
Subsidiaries but no longer owned, leased or operated by the Borrower or any of its Subsidiaries),
except in compliance with all applicable Environmental Laws.




          8.16. Properties. All Real Property (other than Real Property with an individual Fair Market Value less than
$1,000,000 as of the Amendment No. 3 Effective Date) and vessels owned by the Borrower or any of
its Subsidiaries, and all material Leaseholds leased by the Borrower or any of its Subsidiaries, in
each case as of the Amendment No. 3 Effective Date, and the nature of the interest therein, is
correctly set forth in Schedule V (and, to the extent that any such Real Property (or any portion
thereof) constitutes “Principal Property” (as defined in the Existing 2013 Senior Notes Indenture),
Schedule XVII correctly identifies such Real Property (or the applicable portion thereof) as
“Principal Property”). Each of the Borrower and each of its Subsidiaries has good and marketable
title to, or a validly subsisting leasehold interest in, all material properties owned or leased by
it, including all Real Property and vessels reflected in Schedule XVII and in the financial
statements referred to in Section 8.09(b) (except (x) such properties sold in the ordinary course
of business since the dates of the respective financial statements referred to therein, (y) such
properties otherwise sold or transferred as permitted by the terms of this Agreement and (z) such
Real Properties owned by the Borrower or any of its Subsidiaries which may be subject to immaterial
defects of title which do not impair the use of such Real Property or the business conducted by the
Borrower or such Subsidiary thereon), free and clear of all Liens, other than Permitted Liens.




          8.17. Labor Relations. Neither the Borrower nor any of its Subsidiaries is engaged in any unfair labor practice
that has had, or could reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect. There is (i) no unfair labor practice complaint pending against the
Borrower or any of its Subsidiaries or, to the knowledge of any Senior Officer, threatened against
any of them, before the National Labor Relations Board or any similar foreign tribunal or agency,
and no grievance or arbitration proceeding arising out of or under any collective bargaining
agreement is so pending against the Borrower or any of its Subsidiaries or, to the knowledge of any
Senior Officer, threatened against any of them, (ii) no strike, labor dispute, slowdown or stoppage
pending against the Borrower or any of its Subsidiaries or, to the knowledge of any Senior Officer,
threatened against the Borrower or any of its Subsidiaries and (iii) no union representation
question existing with respect to the employees of the Borrower or any of its Subsidiaries and no
union organizing activities are taking place, except (with respect to any matter specified in
clause (i), (ii) or (iii) above, either individually or in the aggregate) such as has not had, or
could reasonably be expected to have, a Material Adverse Effect.




          8.18. Tax Returns and Payments. the Borrower and each of its Subsidiaries has timely filed (including applicable
extensions), or has had filed on its behalf, with the appropriate taxing authority, all material
returns, statements, forms and reports for taxes (the “Returns”) required to be filed by or
with respect to the income, properties or operations of the Borrower and each of its Subsidiaries.
The Returns accurately reflect in all material respects all liability for taxes of the Borrower and
each of its






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Subsidiaries as a whole for the periods covered thereby. The Borrower and each of its
Subsidiaries have paid all material taxes payable by them other than those contested in good faith
and adequately disclosed and for which adequate reserves have been established in accordance with
U.S. GAAP. Except as set forth on Schedule X hereto, as of the Amendment No. 3 Effective Date,
there is no action, suit, proceeding, investigation, audit, or claim now pending or, to the
knowledge of any Senior Officer, threatened by any authority regarding any taxes relating to the
Borrower and each of its Subsidiaries. Except as set forth on Schedule X hereto, as of the
Amendment No. 3 Effective Date, neither the Borrower nor any of its Subsidiaries has entered into
an agreement or waiver or been requested to enter into an agreement or waiver extending any statute
of limitations relating to the payment or collection of taxes of the Borrower or any of its
Subsidiaries, or is aware of any circumstances that would cause the taxable years or other taxable
periods of the Borrower or any of its Subsidiaries not to be subject to the normally applicable
statute of limitations.




          8.19. Insurance. Set forth on Schedule XI hereto is a true, correct and complete summary of all insurance
maintained by the Borrower and its Subsidiaries on and as of the Amendment No. 3 Effective Date,
with the amounts insured (and any deductibles) set forth therein.




          8.20. Subordination. The subordination provisions contained in the Existing Senior Notes Documents are
enforceable against (i) the Subsidiary Guarantors party thereto, and (ii) the holders of the
Existing Senior Notes. All Guaranteed Obligations (as defined in the Subsidiaries Guaranty) of the
Subsidiary Guarantors and all Obligations of the Borrower under the Credit Documents to which it is
a party, are within the definitions of “Guarantor Senior Debt” and “Designated Guarantor Senior
Debt” or “Senior Debt” and “Designated Senior Debt,” as applicable, included in such subordination
provisions.




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




          SECTION 9. Affirmative Covenants.




          The Borrower hereby covenants and agrees that as of the Amendment No. 3 Effective Date and
thereafter for so long as this Agreement is in effect and until the Total Commitment and all
Letters of Credit have been terminated, and the Loans, Notes and Unpaid Drawings, together with
interest, Fees and all other Obligations (other than any indemnities described in Section 13.13
which are not then due and payable) incurred hereunder, are paid in full:




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





     (a) Monthly Reports. Within 30 days after the end of each Fiscal Month of the
Borrower (other than the last Fiscal Month of each Fiscal Quarter of the Borrower), the
balance sheet of the Borrower and its Consolidated Subsidiaries (and, if available the
Borrower agrees to use its commercially reasonable efforts to make same available, of the
U.S. Dole Group) as at the end of such Fiscal Month and the related consolidated statement
of income for such Fiscal Month and for the elapsed portion of the Fiscal Year ended with
the last day of such Fiscal Month.




     (b) Quarterly Financial Statements. Within 3 Business Days following the 45th
day after the close of the first three quarterly accounting periods in each Fiscal Year of
the Borrower (i) (x) the consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as at the end of such quarterly accounting period and the related consolidated
statements of income and of cash flows for such quarterly accounting period and for the
elapsed portion of the Fiscal Year ended with the last day of such quarterly accounting
period, in each case setting forth



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comparative figures for the corresponding quarterly accounting period in the prior
Fiscal Year, (y) the consolidated balance sheet of each Business Segment as at the end of
such quarterly accounting period and the related consolidated statement of income of such
Business Segment for such quarterly accounting period and for the elapsed portion of the
Fiscal Year ended with the last day of such quarterly accounting period, in each case
setting forth comparative figures for the corresponding quarterly accounting period in the
prior Fiscal Year, and (z) the consolidated balance sheets of the U.S. Dole Group and the
Non-U.S. Dole Group as at the end of such quarterly accounting period and the related
consolidated statements of income of each such group for such quarterly accounting period
and for the elapsed portion of the Fiscal Year ended with the last day of such quarterly
accounting period, all of the foregoing of which shall be in reasonable detail and, in the
case of the financial statements described in subclause (x) above, be certified by an
Authorized Officer of the Borrower that they fairly present in all material respects in
accordance with U.S. GAAP the financial condition of the Borrower and its Consolidated
Subsidiaries as of the dates indicated and the results of their operations and/or changes in
their cash flows for the periods indicated, subject to normal year-end audit adjustments and
the absence of footnotes and (ii) management’s discussion and analysis of the important
operational and financial developments during such quarterly accounting period;
provided, however, that for any quarterly accounting period for which the
Borrower has filed a Form 10-Q Report with the SEC, the furnishing of (I) the Borrower’s
Form 10-Q Report filed with the SEC for such quarterly accounting period and (II) the
consolidated balance sheet of each Business Segment as at the end of such quarterly
accounting period and the related consolidated statement of income of such Business Segment
for such quarterly accounting period, shall satisfy the requirements of subclause (i) and
(ii) of this Section 9.01(b).




     (c) Annual Financial Statements. Within 3 Business Days following the 90th day
after the close of each Fiscal Year of the Borrower, (i) (x) the consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries as at the end of such Fiscal Year and the
related consolidated statements of income and stockholders’ equity and of cash flows for
such Fiscal Year and setting forth comparative consolidated figures for the preceding Fiscal
Year, (y) the consolidated balance sheet of each Business Segment as at the end of such
Fiscal Year and the related consolidated statements of income of each Business Segment for
such Fiscal Year and setting forth comparative consolidated figures for the preceding Fiscal
Year and (z) the consolidated balance sheet of each of the U.S. Dole Group and the Non-U.S.
Dole Group as at the end of such Fiscal Year and the related consolidated statements of
income of each such group for such Fiscal Year and setting forth comparative consolidated
figures for the preceding Fiscal Year, (ii) in the case of the financial statements referred
to in subclause (i)(x) above, together with a certification by Deloitte & Touche LLP or such
other independent certified public accountants of recognized national standing as shall be
acceptable to the Administrative Agent, in each case to the effect that such statements
fairly present in all material respects the financial condition of the Borrower and its
Consolidated Subsidiaries as of the dates indicated and the results of their operations and
changes in financial position for the periods indicated in conformity with U.S. GAAP applied
on a basis consistent with prior years which certification shall be made without
qualification or expression of uncertainty, in each case as to going concern, and with a
statement that no Default or Event of Default pursuant to Section 10.08 has come to their
attention and (iii) management’s discussion and analysis of the important operational and
financial developments during such Fiscal Year; provided, however, that for
any Fiscal Year for which the Borrower has filed a Form 10-K Report with the SEC, the
furnishing of (I) the Borrower’s Form 10-K Report filed with the SEC for such Fiscal Year
and (II) the consolidated balance sheet of each Business Segment as at the end of such
Fiscal Year and the related consolidated statement of



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income of such Business Segment for such Fiscal Year, shall satisfy the requirements of subclause
(i) and (iii) of this Section 9.01(c).




     (d) Financial Projections, etc. Not more than 90 days after the commencement
of each Fiscal Year of the Borrower commencing after the Amendment No. 3 Effective Date,
financial projections in form reasonably satisfactory to the Administrative Agent (including
projected statements of income, sources and uses of cash and balance sheets, and a projected
Borrowing Base, in each case, taking into account any Significant Asset Sales intended to be
consummated during such Fiscal Year) prepared by the Borrower (i) for the four Fiscal
Quarters of such Fiscal Year prepared in detail and (ii) for each of the immediately
succeeding two Fiscal Years prepared in summary form, in each case, on a consolidated basis,
for the Borrower and its Consolidated Subsidiaries and setting forth, with appropriate
discussion, the principal assumptions upon which such financial projections are based.




     (e) Officer’s Certificates. At the time of the delivery of the financial
statements provided for in Sections 9.01(a), (b) and (c), (with respect to clause (c) for
each Fiscal Year ended on or after the Initial Borrowing Date), a certificate of the Chief
Financial Officer or other Authorized Officer of the Borrower to the effect that no Default
or Event of Default exists or, if any Default or Event of Default does exist, specifying the
nature and extent thereof, which certificate shall (i) if delivered in connection with the
financial statements required by Section 9.01(b) or (c), (x) set forth in reasonable detail
the calculations required to establish whether the Borrower and its Subsidiaries were in
compliance with the provisions of Sections 5.02 and 10.08 (whether or not a Compliance
Period is then in effect) and (y) the calculation of the Senior Secured Leverage Ratio as at
the end of such Fiscal Quarter or Fiscal Year of the Borrower, as the case may be, and (ii)
certify that there have been no changes to Annexes A through G of the Security Agreement,
Annexes A through G of the Pledge Agreement and the annexes or schedules to any other
Security Document, in each case since the Amendment No. 3 Effective Date or, if later, since
the date of the most recent certificate delivered pursuant to this Section 9.01(e), or if
there have been any such changes, a list in reasonable detail of such changes (but, in each
case with respect to this clause (ii), only to the extent that such changes are required to
be reported to the Collateral Agent pursuant to the terms of such Security Documents) and
whether the Borrower and the other Credit Parties have otherwise taken all actions required
to be taken by them pursuant to such Security Documents in connection with any such changes.




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




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



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     (h) Environmental Matters. Within five Business Days after an Authorized
Officer of the Borrower obtains knowledge of any of the following (but only to the extent
that any of the following, either individually or in the aggregate, has had, or could
reasonably be expected to, (i) reduce the value of any ABL Priority Collateral by at least
$10,000,000 or (ii) have a Material Adverse Effect), written notice of:




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




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




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




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



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




     (i) Reports. Within 3 Business Days following transmission thereof, copies of
any filings and registrations with, and reports to, the SEC by the Borrower or any of its
Subsidiaries and copies of all financial statements, proxy statements, notices and reports
as the Borrower or any of its Subsidiaries shall send generally to the holders of
Indebtedness or (following the public issuance of Equity Interests of the Borrower or any of
its Subsidiaries) their Equity Interests in their capacity as such holders (provided
that such information (other than the information required by Sections 9.01(b) and (c))
shall not be required to be delivered to the Administrative Agent and the Lenders to the
extent the same is publicly available on the SEC’s website).




     (j) New Subsidiaries; etc. Within 3 Business Days after the 45th day following
the close of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower and
within 3 Business Days after the 90th day following the close of each Fiscal Year of the
Borrower, (x) a list showing each Subsidiary of the Borrower established, created or
acquired during the respective Fiscal Quarter or Fiscal Year, and each Subsidiary which has
had any Equity Interests transferred during the respective Fiscal Quarter or Fiscal Year (in
each case describing in reasonable detail the respective transfer of Equity Interests), in
each case naming the direct owner of all Equity Interests in such Subsidiary and describing
such Equity Interests in reasonable detail, and certifying that each such Subsidiary, and
each Credit Party which owns any Equity



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Interests therein, has taken all actions, if any, required pursuant to Section 9.11 and
the relevant Security Documents.




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




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




     (m) Hedging Agreements. Upon request of the Administrative Agent, a schedule
of all Interest Rate Protection Agreements and Other Hedging Agreements entered into by the
Borrower or any of its Subsidiaries with any Lender and/or any of its affiliates.




     (n) Borrowing Base Certificate. (u) On the Initial Borrowing Date, (v) not
later than 5:00 P.M. (New York time) on the forty-fifth day following the end of the first
Fiscal Month of the Borrower following the Closing Date, (w) not later than 5:00 P.M. (New
York time) on the fifteenth Business Day following the end of each Fiscal Month of the
Borrower thereafter, (x) during the continuance of a Borrowing Availability Limitation, not
later than 5:00 p.m. (New York time) on the fifth Business Day after the end of each fiscal
week of the Borrower (or at such other times as the Administrative Agent may request), (y)
not later than 5:00 P.M. (New York time) on the third Business Day following any Permitted
Acquisition and (z) not later than 5:00 P.M. (New York time) within five Business Days
following any Authorized Officer of the Borrower obtaining knowledge of (i) any Asset Sale
with respect to any ABL Priority Collateral with a fair market value of at least $5,000,000
or (ii) any theft, loss, physical destruction, damage, taking or any other similar event
which reduces the value of any ABL Priority Collateral by at least $5,000,000, a borrowing
base certificate setting forth the Borrowing Base (with supporting calculations)
substantially in the form of Exhibit M (each, a “Borrowing Base
Certificate”), which shall be prepared (A) as of the end of the Borrower’s second period
of 2010 in the case of the first Borrowing Base Certificate delivered after the Amendment
No. 3 Effective Date and (B) as of the last Business Day of fiscal month or week, as the
case may be, of the Borrower in the case of each subsequent Borrowing Base Certificate but
after giving effect to any event described in subclause (z) above (it being understood,
however, that any Eligible Accounts reflected in any Borrowing Base Certificate may be as of
the last Business Day of fiscal month or week, as the case may be, of the Borrower)
provided that, upon the occurrence and continuation of a Default or an Event of
Default or if otherwise required by Administrative Agent in its Permitted Discretion, such
Borrowing Base Certificates and any additional schedules and other information shall be
delivered as often as reasonably requested by Administrative Agent. Each such Borrowing
Base Certificate shall include such supporting information with respect to the Borrower’s
accounts receivable, accounts payable, inventory reports as may be requested from time to
time by the Administrative Agent.




     (o) Field Examinations; Appraisals. Once during each Fiscal Year of the
Borrower and, at any time a Default, or Event of Default or Borrowing Availability
Limitation exists, at



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such other times as the Administrative Agent may request, (x) an appraisal of the
Inventory of the Borrower and its Subsidiaries and (y) a collateral examination of the
Inventory and receivables of the Borrower and its Subsidiaries, in each case, in scope, and
from a third-party appraiser and a third-party consultant, respectively, satisfactory to the
Collateral Agent and completed at the cost and expense of the Borrower.




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



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




          9.03. Insurance.




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




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




          (c) If the Borrower or any of its Subsidiaries shall fail to comply with this Section 9.03,
the Administrative Agent and/or the Collateral Agent shall have the right (but shall be under no
obligation), upon ten Business Days’ notice to the Borrower, to procure such insurance, and the
Borrower agrees to reimburse the Administrative Agent or the Collateral Agent, as the case may be,
for all costs and expenses of procuring such insurance.







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          9.04. Payment of Taxes. The Borrower will pay and discharge, and will cause each of its Subsidiaries to pay and
discharge, all taxes, assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, in each case on a timely basis, and all
lawful claims which, if unpaid, might become a lien or charge upon any properties of the Borrower
or any of its Subsidiaries not otherwise permitted under Section 10.03(i); provided that
none of the Borrower and its Subsidiaries shall be required to pay any such tax, assessment,
charge, levy or claim which is being contested in good faith and by proper proceedings if it has
maintained adequate reserves with respect thereto in accordance with U.S. GAAP.




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




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




          9.07. Compliance with Environmental Laws. (i) The Borrower will comply, and will cause each of its Subsidiaries to comply, in all
material respects with all Environmental Laws applicable to the ownership or use of its Real
Property and vessels now or hereafter owned, leased or operated by the Borrower or any of its
Subsidiaries, will promptly pay or cause to be paid all costs and expenses incurred in connection
with such compliance, and will keep or cause to be kept all such Real Property and vessels free and
clear of any Liens imposed pursuant to such Environmental Laws and (ii) neither the Borrower nor
any of its Subsidiaries will generate, use, treat, store, Release or dispose of, or permit the
generation, use, treatment, storage, Release or disposal of, Hazardous Materials on any Real
Property or vessels owned, leased or operated by the Borrower or any of its Subsidiaries, or
transport or permit the transportation of Hazardous Materials to or from any such Real Property,
except as required in the ordinary course of business of the Borrower and its Subsidiaries and as
allowed by (and in compliance with) applicable law or regulation and except for any failures to
comply with the requirements specified in clause (i) or (ii) above, which, either individually or
in the aggregate, have not had, and could not reasonably be expected to have, a Material Adverse
Effect. If the Borrower or any of its Subsidiaries, or any tenant or occupant of any Real Property
or vessel owned, leased or operated by the Borrower or any of its Subsidiaries, causes or permits
any intentional or unintentional act or omission resulting in the presence or Release of any
Hazardous Material (except in compliance with applicable Environmental Laws), the Borrower agrees
to undertake, and/or to cause any of its Subsidiaries, tenants or occupants to undertake, at their
sole expense, any clean up, removal, remedial or other action required pursuant to Environmental
Laws to remove and clean up any Hazardous Materials from any Real Property or vessel except where
the failure to do so has not had, and could not reasonably be expected to have, a Material Adverse
Effect.







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          9.08. ERISA. As soon as possible and, in any event, within twenty (20) Business Days after the Borrower,
any Subsidiary of the Borrower or any ERISA Affiliate knows or has reason to know of the occurrence
of any of the following, the Borrower will deliver to the Administrative Agent written notice of
the chief financial officer, vice president of human resources or other Authorized Officer of the
Borrower setting forth, to the extent known, and in reasonable detail, such occurrence and the
action, if any, that the Borrower, such Subsidiary or such ERISA Affiliate is required or proposes
to take, together with any notices required or proposed to be given to or filed by the Borrower,
such Subsidiary, the Plan administrator or such ERISA Affiliate to or with, the PBGC or any other
governmental agency, or a Plan or Multiemployer Plan participant, and any notices received by the
Borrower, such Subsidiary or ERISA Affiliate from the PBGC or other governmental agency or a Plan
or Multiemployer Plan participant or the Plan administrator with respect thereto: that a
Reportable Event has occurred (except to the extent that the Borrower has previously delivered to
the Administrative Agent a notice (if any) concerning such event pursuant to the next clause
hereof); that a contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan subject
to Title IV of ERISA is subject to the advance reporting requirement of PBGC Regulation Section
4043.61 (without regard to subparagraph (b)(1) thereof), and an event described in subsection .62,
 .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected to occur with
respect to such Plan within the following 30 days; that an accumulated funding deficiency, within
the meaning of Section 412 of the Code or Section 302 of ERISA, has been incurred or an application
may be or has been made for a waiver or modification of the minimum funding standard (including any
required installment payments) or an extension of any amortization period under Section 412 of the
Code or Section 303 or 304 of ERISA with respect to a Plan; that any contribution required to be
made with respect to a Plan or Multiemployer Plan or Foreign Pension Plan has been made more than
sixty (60) days late; that a Plan or Multiemployer Plan has been or may be involuntarily
terminated, reorganized, partitioned or declared insolvent under Title IV of ERISA; that a Plan or
Multiemployer Plan has a material Unfunded Current Liability; that involuntary proceedings may be
or have been instituted to terminate or appoint a trustee to administer a Plan which is subject to
Title IV of ERISA; that an involuntary proceeding has been instituted pursuant to Section 515 of
ERISA to collect a delinquent contribution to a Plan or Multiemployer Plan; that the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate will or may incur any material liability
(including any indirect, contingent, or secondary liability) to or on account of the termination of
or withdrawal from a Plan or Multiemployer Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or
4212 of ERISA or with respect to a Plan or Multiemployer Plan under Section 401(a)(29), 4971, 4975
or 4980 of the Code or Section 409 or 502(i) or 502(l) of ERISA or with respect to a group health
plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B
of the Code; or that the Borrower or any Subsidiary of the Borrower may incur any liability
pursuant to any employee welfare benefit plan (as defined in Section 3(1) of ERISA) that provides
benefits to retired employees or other former employees (other than as required by Section 601 of
ERISA) or any Plan
or any Foreign Pension Plan in addition to the liability that existed on the
Effective Date pursuant to any such plan or plans by an amount that would be material to the
Borrower or any Subsidiary of the Borrower. To the extent that the financial statements set forth
with particularity a liability for which notice would otherwise be required to be given hereunder,
a separate notice thereof shall not be required hereunder. At the request of the Administrative
Agent, the Borrower and the Borrower will deliver to the Administrative Agent copies of any
records, documents or other information that must be furnished to the PBGC with respect to any Plan
pursuant to Section 4010 of ERISA. The Borrower will also deliver upon written request to the
Administrative Agent a complete copy of the annual report (on Internal Revenue Service Form
5500-series) of each Plan (including, to the extent required, the related financial and actuarial
statements and opinions and other supporting statements, certifications, schedules and information)
required to be filed with the Internal Revenue Service. In addition to any notices delivered to
the Administrative Agent pursuant to the first sentence hereof, copies of annual reports and any
records, documents or other information required to be furnished to the PBGC or any other
government agency, and any material notices received by the Borrower, any






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Subsidiary of the Borrower or any ERISA Affiliate with respect to any Plan or Foreign Pension
Plan or received from any government agency or plan administrator or sponsor or trustee with
respect to any Multiemployer Plan, shall, upon request of the Administrative Agent, be delivered to
the Administrative Agent no later than twenty (20) Business Days after the date of such request.
The Borrower and each of its applicable Subsidiaries shall ensure that all Foreign Pension Plans
administered by it or into which it makes payments obtain or retain (as applicable) registered
status under and as required by applicable law and is administered in a timely manner in all
respects in compliance with all applicable laws except where the failure to do any of the foregoing
has not had, and could not reasonably be expected to have, a Material Adverse Effect.




          9.09. Good Repair. The Borrower will, and will cause each of its Subsidiaries to, ensure that its material
properties and equipment required to be used in its business are kept in reasonably good repair,
working order and condition, ordinary wear and tear excepted, and that from time to time there are
made in such properties and equipment all needful and proper repairs, renewals, replacements,
extensions, additions, betterments and improvements thereto, to the extent and in the manner useful
or customary for companies in similar businesses.




          9.10. End of Fiscal Years; Fiscal Quarters. The Borrower will cause (i) each of its, and each of its Subsidiaries’, fiscal years to end
on the Saturday closest to December 31 of each calendar year and (ii) each of its, and each of its
Subsidiaries’, fiscal quarters to end on the last day of each period described in the definition of
“Fiscal Quarter”; provided that Foreign Subsidiaries of the Borrower shall not be required
to maintain the fiscal year and fiscal quarter ends described above if it is not practicable for
such Foreign Subsidiary to maintain same as a result of foreign statutes, rules or law applicable
to such Foreign Subsidiary.




          9.11. Additional Security; Additional Guaranties; Actions with Respect to Non-Guarantor
Subsidiaries; Further Assurances.




          (a) The Borrower will, and will cause its Subsidiaries which are Subsidiary Guarantors to,
grant to the Collateral Agent security interests and mortgages (each, an “Additional
Mortgage”) in: (i) each vessel acquired by such Person after the Amendment No. 3 Effective
Date and having an initial book value in excess of $1,000,000, (ii) such fee-owned (or the
equivalent) Real Property acquired by such Person after the Amendment No. 3 Effective Date and
having an initial book value in excess of $10,000,000 which is not covered by the original
Mortgages (each such Real Property referred to in preceding clause (i) and this clause (ii), an
“Additional Mortgaged Property”); provided, however, that if the aggregate
initial book value of all Second-Tier Material Real Properties (for such purpose, using the initial
purchase price paid by such Person for the respective Second-Tier Material Real Properties)
acquired by such Persons after the Amendment No. 3 Effective Date which are not then covered by
Mortgages, equals or exceeds $20,000,000, the Borrower and each Subsidiary Guarantor shall grant to
the Collateral Agent security interests and mortgages in all such Second-Tier Material Real
Properties owned by any such Person which are not then covered by Mortgages (and not just those
required to reduce the aggregate value of all Second-Tier Material Real Properties (determined as
provided above) at such time below $20,000,000). All such Additional Mortgages shall be granted
pursuant to documentation in form reasonably satisfactory to the Administrative Agent. All such
Additional Mortgages shall constitute valid and enforceable Liens, superior to and prior to the
rights of all third Persons and subject to no other Liens (except as are permitted by Section
10.03), in favor of the Collateral Agent (or such other trustee or subagent as may be required or
desired under local law). The Additional Mortgages or instruments related thereto shall be duly
recorded or filed in such manner and in such places as are required by law to create, maintain,
effect, perfect, preserve, maintain and protect the


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Liens in favor of the Collateral Agent required to be granted pursuant to the Additional
Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in
full.




          (b) The Borrower will, and will cause each of its Subsidiaries to, at its own expense, take
such further actions relating to the Collateral covered by any of the Security Documents as the
Collateral Agent may reasonably require pursuant to this Section 9.11. Furthermore, the Borrower
will cause to be delivered to the Collateral Agent such opinions of counsel and other related
documents as may be reasonably requested by the Collateral Agent to assure itself that this Section
9.11 has been complied with.




          (c) Subject to the provisions of clause (e) below, if at any time any Domestic Subsidiary of
the Borrower is created, established or acquired (other than an Excluded JV), such Subsidiary shall
be required to execute and deliver counterparts of the Subsidiaries Guaranty, the Intercompany
Subordination Agreement, the Intercreditor Agreement and such Security Documents as may be
specified by the Administrative Agent, and in each case shall take all action in connection
therewith as may be specified by the Administrative Agent.




          (d) At such time as any Equity Interests owned by any Credit Party cease to be Excluded
Collateral, the Credit Parties shall take such actions as may be required by the U.S. Pledge
Agreement and the other Security Documents or that are reasonably requested by the Collateral Agent
in order to ensure that the Collateral Agent has a perfected first priority security interest
therein, provided that, in the case of any Foreign Subsidiary that is a corporation (or
treated as such for U.S. tax purposes) which is owned by a Credit Party, not more than 65% of the
total outstanding voting Equity Interests of such Person shall be required to be pledged in support
of such Credit Party’s obligations (x) as the Borrower under the Credit Agreement or (y) under its
Subsidiaries Guaranty in respect of the Obligations of the Borrower.




          (e) Each action required above by Section 9.11(a), (b), (c) or (d) shall be completed as soon
as possible, but in no event later than 90 days (or, in the case of actions relating to assets
located outside the United States, such greater number of days (not to exceed 120 days) as the
Administrative Agent shall agree to in its sole and absolute discretion in any given case) after
such action is requested to be taken by the Administrative Agent or the Required Lenders. The
Borrower further agrees that (x) each action required above by Section 9.11(a), (b), (c) or (d)
with respect to a newly formed, created or acquired Domestic Subsidiary, shall be completed
contemporaneously with the formation, creation or acquisition of such Domestic Subsidiary,
(provided that (x) the Credit Documents required to be executed and delivered pursuant to
Section 9.11(c) by such newly formed, created or acquired Domestic Subsidiary shall not be required
to be so executed and delivered until 45 days after the formation, creation or acquisition of such
Subsidiary, (y) in the case of a Shell Corporation formed, created or established by the Borrower
or any of its Subsidiaries, such actions shall not be required to be taken (so long as same remains
a Shell Corporation) until 60 days after the formation, creation or establishment of such Shell
Corporation and (z) all actions required to be taken pursuant to the last sentence of Section
9.11(c) shall be taken as promptly as practicable, and in any event within 45 days, after the
Borrower receives the respective request from the Administrative Agent or the Required Lenders.




          (f) Notwithstanding anything to the contrary contained in clauses (c) through (e) above, to
the extent the taking of any action as described above by a new Subsidiary acquired pursuant to an
acquisition permitted by Section 10.05 which is subject to Permitted Acquired Debt which at such
time remains in existence as permitted by Section 10.04(b)(vi), then to the extent that the terms
of the respective Permitted Acquired Debt prohibit the taking of any actions which would otherwise
be required of such Subsidiary by this Section 9.11, the time for taking the respective actions (to
the extent prohibited


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by the terms of the respective Permitted Acquired Debt) shall be extended until 10 Business
Days after the earlier of (i) the date of repayment of such Permitted Acquired Debt and (ii) the
first date on which the taking of such actions would not violate the terms of the respective issue
of Permitted Acquired Debt. To the extent the terms of any Permitted Acquired Debt prohibit the
taking of actions otherwise required by this Section 9.11, upon the request of the Administrative
Agent or the Required Lenders, the Borrower shall, or shall cause the respective Subsidiaries of
the Borrower to, (x) prepay any such Permitted Acquired Debt which is permitted to be prepaid
and/or (y) use reasonable efforts to obtain such consents or approvals as are needed so that the
taking of the actions otherwise specified in this Section 9.11 would not violate the terms of the
respective issue of Permitted Acquired Debt. Furthermore, to the extent any Subsidiary which is
not a Wholly-Owned Subsidiary is acquired pursuant to an acquisition permitted by Section 10.05,
then for so long as such Subsidiary is not a Wholly-Owned Subsidiary, to the extent the Borrower in
good faith determines that the respective Subsidiary is not able under applicable requirements of
law (whether because of fiduciary duties under applicable law or other requirements of applicable
law) to execute and deliver a Subsidiaries Guaranty or one or more Security Documents, such
Subsidiary shall not be required to become a Subsidiary Guarantor or execute and deliver such
Security Documents as otherwise required above.




          (g) In the event that the Administrative Agent or the Required Lenders at any time after the
Initial Borrowing Date determine in their reasonable discretion (whether as a result of a position
taken by an applicable bank regulatory agency or official, or otherwise) that real estate
appraisals satisfying the requirements set forth in 12 C.F.R., Part 34-Subpart C, or any successor
or similar statute, role, regulation, guideline or order (any such appraisal, a “Required
Appraisal”) are or were required to be obtained, or should be obtained, in connection with any
Mortgaged Property or Mortgaged Properties, then, within 90 days after receiving written notice
thereof from the Administrative Agent or the Required Lenders, as the case may be, the Borrower
shall cause such Required Appraisal to be delivered, at the expense of the Borrower, to the
Administrative Agent, which Required Appraisal, and the respective appraiser, shall be satisfactory
to the Administrative Agent.




          (h) Notwithstanding anything to the contrary contained above in this Section 9.11 or elsewhere
in this Agreement or the other Credit Documents, no Credit Party shall be required to grant a
security interest in, or Lien on, any Excluded Collateral (so long as the respective Property
constitutes Excluded Collateral), and the value of any Excluded Collateral shall not be taken into
account in making determinations pursuant to the foregoing clauses of this Section 9.11.




          (i) No later than 45 days after the Amendment No. 3 Effective Date (or such later date as the
Administrative Agent shall agree in its sole discretion), the applicable Credit Parties shall cause
to be executed and/or delivered, as applicable, to the Administrative Agent:





     (i) with respect to each Mortgage in favor of the Collateral Agent with respect to any
Mortgaged Property, an amendment (each, a “Mortgage Amendment”) duly executed and
acknowledged by the applicable Credit Party in form and substance reasonably satisfactory to
the Collateral Agent;




     (ii) with respect to each Mortgage Amendment (other than with respect to the Mortgage
Amendment for the Mortgaged Properties in Florida and Hawaii), an endorsement or other
modification to the existing Mortgage Policy providing assurance reasonably satisfactory to
the Collateral Agent that the lien on such Mortgaged Property in favor of the Collateral
Agent shall continue to have the enforceability and priority in effect immediately prior to
the effectiveness of Amendment 1;



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     (iii) with respect to each Mortgage Amendment (other than with respect to the Mortgage
Amendment for the U.S. Mortgaged Property in Florida), opinions of counsel to the Credit
Parties covering customary matters and in form and substance reasonably satisfactory to the
Collateral Agent;




     (iv) with respect to each Mortgaged Property requested by the Collateral Agent, a
completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard
Determination and for each improved parcel of Real Property located in a special flood
hazard area (x) a notice about special flood hazard area status and flood disaster
assistance duly executed by the applicable Credit Parties and (y) evidence of flood
insurance in amounts and otherwise sufficient to comply with applicable law; and




     (v) a copy of, or a certificate as to coverage under, the insurance policies required
by Section 8.03 in form and substance satisfactory to the Collateral Agent.



          9.12. Use of Proceeds. The Borrower will, and will cause each of its Subsidiaries to, use the proceeds of the
Loans for the purposes specified in Section 8.05. The Borrower will not, nor will it permit any of
its Subsidiaries to, use any of the proceeds of the Loans or any Letter of Credit to finance the
acquisition of any Person that has not been approved and recommended by the board of directors (or
functional equivalent thereof) or the requisite shareholders of such Person.




          9.13. Ownership of Subsidiaries.




          (a) Notwithstanding anything to the contrary contained in this Agreement, (x) the Borrower
shall at all times own directly or indirectly 100% of the capital stock of the Bermuda Company and
(y) subject to the proviso to the first sentence of Section 9.16(a), the Borrower shall at all
times own directly or indirectly (through one or more Wholly-Owned Domestic Subsidiaries (as
opposed to through Foreign Subsidiaries)) all of the capital stock or other Equity Interests (to
the extent owned by the Borrower or any of its Subsidiaries) of each Domestic Subsidiary of the
Borrower (other than any Excluded JV).




          (b) The Borrower shall take all actions so that, at all times from and after the Amendment No.
3 Effective Date, all the assets of the Borrower and its Subsidiaries located within the United
States, all Equity Interests in all Domestic Subsidiaries or other U.S. Persons and all or
substantially all of the business of the Borrower and its Subsidiaries (other than any Excluded JV)
conducted in the United States are, in each case, owned or conducted, as the case may be, by the
Borrower and one or more Domestic Subsidiaries which are not direct or indirect Subsidiaries of any
Subsidiary of the Borrower which is a Foreign Subsidiary, provided that if a Foreign
Subsidiary (not itself created or established in contemplation of an acquisition) is acquired by
the Borrower or any Subsidiary which Foreign Subsidiary has (either directly or through one or more
Domestic Subsidiaries) assets or operations in the United States, the Borrower shall have a
reasonable period of time (not to exceed 60 days) to effect the transfer of U.S. assets and
operations (including all Equity Interests in any Domestic Subsidiaries or other U.S. Persons held
by it) of the respective Foreign Subsidiary to one or more Qualified Obligors; provided
further, that the respective transfer shall not be required to be made if the Borrower in
good faith determines that such transfer would give rise to adverse tax consequences to the
Borrower and its Subsidiaries or would give rise to any material breach or violation of law or
contract (in which case, the Borrower and its Subsidiaries shall transfer such assets and
operations at such time, if any, as such adverse tax consequences or breach or violation would not
exist and, until such time, shall use good faith efforts so that any growth in the assets or
operations of the entity so acquired, to the extent located in the United States, is made within
the Borrower or one or more Wholly-Owned Subsidiary Guarantors).







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          9.14. Maintenance of Company Separateness. The Borrower will, and will cause each of its Subsidiaries to, satisfy customary Company
formalities, including the holding of regular board of directors’ and shareholders’ meetings or
action by directors or shareholders without a meeting and the maintenance of Company records.
Neither the Borrower nor any other Credit Party shall make any payment to a creditor of any
Non-Guarantor Subsidiary in respect of any liability of any Non-Guarantor Subsidiary, and no bank
account of any Non-Guarantor Subsidiary shall be commingled with any bank account of the Borrower
or any other Credit Party. Any financial statements distributed to any creditors of any
Non-Guarantor Subsidiary shall clearly establish or indicate the corporate separateness of such
Non-Guarantor Subsidiary from the Borrower and its other Subsidiaries. Finally, neither the
Borrower nor any of its Subsidiaries shall take any action, or conduct its affairs in a manner,
which is likely to result in the Company existence of the Borrower, any Subsidiary Guarantor or any
Non-Guarantor Subsidiaries being ignored, or in the assets and liabilities of the Borrower or any
other Credit Party being substantively consolidated with those of any other such Person or any
Non-Guarantor Subsidiary in a bankruptcy, reorganization or other insolvency proceeding.




          9.15. Performance of Obligations. The Borrower will, and will cause each of its Subsidiaries to, perform all of its
obligations under the terms of each mortgage, deed of trust, indenture, loan agreement or credit
agreement and each other material agreement, contract or instrument by which it is bound, except
such non-performances as, individually or in the aggregate, have not caused, and could not
reasonably be expected to cause, a Default or Event of Default hereunder or a Material Adverse
Effect.




          9.16. Margin Stock. The Borrower shall take all actions so that at all times the aggregate value of all Margin
Stock (other than treasury stock) owned by the Borrower and its Subsidiaries (for such purpose,
using the initial purchase price paid by the Borrower or such Subsidiary for the respective shares
of Margin Stock) shall not exceed $10,000,000. So long as the aggregate value of Margin Stock
(other than treasury stock) owned by the Borrower and its Subsidiaries (determined as provided in
the preceding sentence) does not exceed $10,000,000, all Margin Stock at any time owned by the
Borrower and its Subsidiaries shall not constitute Collateral and no security interest shall be
granted therein pursuant to any Credit Document. Without excusing any violation of the first
sentence of this Section 9.16, if at any time the aggregate value of all Margin Stock (other than
treasury stock) owned by the Borrower and its Subsidiaries (determined as provided in the first
sentence of this Section 9.16) exceeds $10,000,000, then (x) all Margin Stock owned by the Credit
Parties (except to the extent constituting Excluded Collateral) shall be pledged, and delivered for
pledge, pursuant to the relevant Security Documents and (y) the Borrower shall execute and deliver
to the Lenders appropriate completed forms (including, without limitation, Forms G-3 and U-1, as
appropriate) establishing compliance with the Margin Regulations.




          9.17. Landlords’ Agreements, Mortgagee Agreements, Bailee Letters and Real Estate
Purchases. Each Credit Party shall use its reasonable efforts to obtain a landlord’s agreement,
mortgagee agreement or bailee letter, as applicable, from the lessor of each leased property
(including, without limitation, farms), mortgagee of owned property or bailee with respect to any
warehouse, processor or converter facility or other location where ABL Priority Collateral with a
book value in excess of $5,000,000 is stored or located, which agreement or letter shall (unless
otherwise agreed to in writing by Administrative Agent) contain a waiver or subordination of all
Liens or claims that the landlord, mortgagee or bailee may assert against the Collateral at that
location, and shall otherwise be reasonably satisfactory in form and substance to Administrative
Agent. With respect to such locations or warehouse space leased or owned as of the Initial
Borrowing Date and thereafter, if the Collateral Agent has not received a landlord or mortgagee
agreement or bailee letter as of the Initial Borrowing Date (or, if later, as of the date such
location is acquired or leased), any Eligible Inventory at that location shall, in






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Administrative Agent’s reasonable discretion, be subject to such Reserves as may be
established by Administrative Agent in its Permitted Discretion. Each Credit Party shall timely
and fully pay and perform its obligations under all leases and other agreements with respect to
each leased location or public warehouse where any Collateral is or may be located except to the
extent that the same are being contested in good faith.




          SECTION 10. Negative Covenants.




          The Borrower hereby covenants and agrees that as of the Amendment No. 3 Effective Date and
thereafter for so long as this Agreement is in effect and until the Total Commitment has
terminated, no Letters of Credit, Bank Guaranties or Notes are outstanding and the Loans, together
with interest, Fees and all other Obligations (other than any indemnities described in Section
13.13 which are not then due and payable) incurred hereunder, are paid in full:




          10.01. Changes in Business; etc. The Borrower will not, nor will it permit any of its Subsidiaries to, engage in any business
that would cause the Borrower and its Subsidiaries, taken as a whole, to be primarily engaged in a
business other than a Permitted Business.




          10.02. Consolidation; Merger and Sale of Assets; etc. The Borrower will not, nor will it permit any of its Subsidiaries to, wind up, liquidate or
dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell,
lease or otherwise dispose of all or any part of its property or assets, except that the following
shall be permitted:





     (i) Investments permitted by Section 10.05 and Dividends permitted by Section 10.06;




     (ii) the Borrower and its Subsidiaries may, in the ordinary course of business, sell or
otherwise dispose of assets (excluding Equity Interests in, Subsidiaries and joint ventures)
which, in the reasonable opinion of such Person, are obsolete, uneconomic or worn-out;




     (iii) the Borrower and its Subsidiaries may sell assets (excluding Equity Interests of
any Wholly-Owned Subsidiary unless all of the capital stock or other Equity Interests of
such Wholly-Owned Subsidiary are sold in accordance with this clause (iii)), so long as (v)
no Event of Default then exists or would result therefrom, (w) the Borrower or the
applicable Subsidiary receives total consideration in an amount at least equal to the Fair
Market Value of such assets, (x) except for customary post-closing adjustments, at least 75%
of the total consideration received by the Borrower or such Subsidiary is paid in cash at
the time of the closing of such sale or disposition (provided that sales of assets
for aggregate consideration of $20,000,000 (based on the Fair Market Value of any non-cash
consideration) in any Fiscal Year of the Borrower shall not be subject to the minimum cash
requirement set forth above in this subclause (x)), (y) the Net Sale Proceeds therefrom are
applied and/or reinvested as (and to the extent) required by Section 5.02(b) and (z) the
aggregate amount of the proceeds received from all assets sold pursuant to this clause (v)
shall not exceed $150,000,000 in any Fiscal Year of the Borrower;




     (iv) each of the Borrower and its Subsidiaries may sell or discount, in each case
without recourse and in the ordinary course of business, overdue accounts receivable arising
in the ordinary course of business, but only in connection with the compromise or collection
thereof and not as part of any financing transaction;



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     (v) each of the Borrower and its Subsidiaries may grant licenses, sublicenses, leases
or subleases to other Persons not materially interfering with the conduct of the business of
the Borrower or any of its Subsidiaries;




     (vi) (x) any Subsidiary of the Borrower may be merged, consolidated or liquidated with
or into the Borrower (so long as the Borrower is the surviving corporation of such merger,
consolidation or liquidation) or any Subsidiary Guarantor (so long as, except in the case of
a merger, consolidation or liquidation into the Borrower, a Subsidiary Guarantor is the
surviving corporation of such merger consolidation or liquidation) and (y) any Subsidiary of
the Borrower that is not a Credit Party may be merged, consolidated or liquidated with or
into any other Subsidiary of the Borrower that is not a Credit Party; provided, in
the case of any merger, consolidation or liquidation pursuant to this clause (vi) involving
a Credit Party, the Borrower shall notify the Administrative Agent thereof and shall take
such action as may be requested by the Administrative Agent for purposes of ensuring the
continued enforceability of the Collateral Agent’s security interest in the Collateral of
such Credit Party;




     (vii) the Borrower and its Subsidiaries may transfer inventory in a non-cash or cash
transfer to Subsidiaries of the Borrower in each case so long as (I) any such transfer is
made in the ordinary course of its business and consistent with past practice of the
Borrower and its Subsidiaries as in effect on the Effective Date, (II) the Borrower
reasonably determines that the transfer is not reasonably likely to be adverse to the
interests of the Lenders in any material respect and (III) no Specified Default and no Event
of Default then exists or would exist immediately after giving effect to the respective
transfer;




     (viii) so long as no Event of Default exists at the time of the respective transfer or
immediately after giving effect thereto, Credit Parties shall be permitted to transfer
additional assets (other than inventory, cash, Cash Equivalents and Equity Interests in any
Credit Party) to other Subsidiaries of the Borrower, so long as cash in an amount at least
equal to the Fair Market Value of the assets so transferred is received by the respective
transferor;




     (ix) the Borrower and its Subsidiaries may sell or exchange specific items of
equipment, in connection with the exchange or acquisition of replacement items of equipment
which are useful in a Permitted Business;




     (x) each of the Borrower and its Subsidiaries may sell or liquidate Cash Equivalents;




     (xi) the Borrower and its Subsidiaries may sell inventory to their respective customers
in the ordinary course of business;




     (xii) each of the Borrower and its Subsidiaries may effect Contemplated Asset Sales, so
long as (i) no Event of Default then exists or would exist immediately after giving effect
thereto, (ii) each such sale is an arm’s-length transaction and the Borrower or the
respective Subsidiary receives at least Fair Market Value, (iii) either (x) at least 75% of
the total consideration received by the Borrower or such Subsidiary is paid in cash at the
time of the closing of such sale or (y) (1) the consideration therefor consists solely of
cash and/or Permitted Installment Notes (to the extent the same may be issued in accordance
with the definition thereof) and (2) at least 50% of the total consideration received by the
Borrower or such Subsidiary is paid in cash at the time of the closing of such sale and (iv)
the Net Sale Proceeds therefrom are applied as, and to the extent, required by Section
5.02(b); and



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     (xiii) the Borrower and its Domestic Subsidiaries may sell and leaseback Principal
Properties, so long as (v) no Default or Event of Default then exists or would result
therefrom, (w) each such sale is made pursuant to an arm’s-length transaction, (x) 100% of
the total consideration received by the Borrower or such Subsidiary is paid in cash at the
time of the closing of such sale, (y) the Net Sale Proceeds therefrom equal at least 90% of
the Fair Market Value of the Property subject to such sale-leaseback transaction and (z) the
Net Sale Proceeds therefrom are applied as a mandatory repayment and/or commitment reduction
and/or reinvested, in any case, in accordance with the requirements of Section 5.02(b).


To the extent any Collateral is sold or otherwise disposed of as permitted by this Section 10.02,
such Collateral (unless transferred to a Credit Party) shall be sold or otherwise disposed of free
and clear of the Liens created by the Security Documents and the Administrative Agent shall take
such actions (including, without limitation, directing the Collateral Agent to take such actions)
as are appropriate in connection therewith.




          10.03. Liens. The Borrower will not, and will not permit any of its Subsidiaries to, create, incur,
assume or suffer to exist any Lien upon or with respect to any property or assets of any kind (real
or personal, tangible or intangible) of the Borrower or any of its Subsidiaries, whether now owned
or hereafter acquired, or sell any such property or assets subject to an understanding or
agreement, contingent or otherwise, to repurchase such property or assets (including sales of
accounts receivable or notes with recourse to the Borrower or any of its Subsidiaries) or assign
any right to receive income or permit the filing of any financing statement under the UCC or any
other similar notice of Lien under any similar recording or notice statute; provided that
the provisions of this Section 10.03 shall not prevent the creation, incurrence, assumption or
existence of the following (Liens described below are herein referred to as “Permitted
Liens”):





     (i) inchoate Liens for taxes, assessments or governmental charges or levies not yet due
and payable or that are being contested in good faith and by appropriate proceedings and for
which adequate reserves have been established in accordance with U.S. GAAP;




     (ii) Liens imposed by law which were incurred in the ordinary course of business and
which have not arisen to secure Indebtedness for borrowed money, such as carriers’,
warehousemen’s and mechanics’ Liens, statutory landlord’s Liens, maritime Liens and other
similar Liens and which either (x) do not in the aggregate materially detract from the value
of such property or assets or materially impair the use thereof in the operation of the
business of the Borrower or any of its Subsidiaries or (y) are being contested in good faith
by appropriate proceedings, which proceedings have the effect of preventing the forfeiture
or sale of the property or asset subject to such Lien;




     (iii) (x) Liens created by or pursuant to this Agreement and the Security Documents
(including Liens securing obligations under any Secured Cash Management Agreement (as
defined in the Security Agreement)), (y) Liens created by or pursuant to the Term Credit
Agreement and the Term Security Documents, securing Indebtedness incurred pursuant to clause
(b)(xx) of Section 10.04 and (z) Liens (but only on the Collateral of the Credit Parties)
securing Existing 2014 Senior Notes, Existing 2016 Senior Notes and Qualified Indebtedness,
so long as such Existing 2014 Senior Notes, Existing 2016 Senior Notes and Qualified
Indebtedness constitute Notes Obligations (as defined in the Intercreditor Agreement);
provided that with respect to any Liens securing Qualified Indebtedness, after
giving effect to the Incurrence of such Qualified Indebtedness and the use of proceeds
therefrom, the Senior Secured Leverage Ratio as of the last day of the most recent Test
Period for which financial statements are available



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pursuant to Section 8.01(a) or (b) would have been less than or equal to 3.75 to 1.00
on a Pro Forma Basis;




     (iv) Liens in existence on the Amendment No. 3 Effective Date which are listed in
Schedule XVIII, renewals, replacements and extensions of such Liens, provided that
(x) the aggregate principal amount of the Indebtedness, if any, secured by such Liens does
not increase from that amount outstanding at the time of any such renewal, replacement or
extension except in accordance with the definition of Permitted Refinancing Indebtedness,
and (y) any such renewal, replacement or extension does not encumber any additional assets
or properties of the Borrower or any of its Subsidiaries;




     (v) Liens (x) arising from judgments, decrees or attachments in circumstances not
constituting an Event of Default under Section 11.09, (y) arising in connection with the
deposit or payment of cash or other Property with or to any court or other governmental
authority in connection with any pending claim or litigation and (z) arising in connection
with the deposit of cash or other Property in connection with the issuance of stay and
appeal bonds, provided that the Fair Market Value of all Property (including cash)
subject to Liens pursuant to clause (v)(y) or (v)(z) (whether pledged, paid, deposited or
otherwise) shall not exceed at any time the sum of (1) $75,000,000 (net of any insurance
proceeds actually received (and not returned) by the Borrower and its Subsidiaries in
connection therewith) plus (2) in the case of Properties of Subsidiaries of the
Borrower located outside the United States and subject to a Lien pursuant to this clause
(v), an additional $50,000,000 (net of any insurance proceeds actually received (and not
returned) by the Borrower and its Subsidiaries in connection therewith);




     (vi) Liens (other than any Lien imposed by ERISA) (x) incurred or deposits made in the
ordinary course of business of the Borrower and its Subsidiaries in connection with workers’
compensation, unemployment insurance and other types of social security, (y) to secure the
performance by the Borrower and its Subsidiaries of tenders, statutory obligations (other
than excise taxes not described in Section 10.03(i)), surety and customs bonds, statutory
bonds, bids, leases, government contracts, trade contracts, performance and return of money
bonds and other similar obligations (exclusive of (I) obligations for the payment of
borrowed money and (II) stay and appeal bonds and other obligations described in Section
10.03(v) above) or (z) to secure the performance by the Borrower and its Subsidiaries of
leases of Real Property, to the extent incurred or made in the ordinary course of business
consistent with past practices, provided that the aggregate Fair Market Value of all
Property pledged or deposited at any time pursuant to preceding subclauses (y) and (z) shall
not exceed $25,000,000 in the aggregate (it being understood that letters of credit and bank
guaranties issued in support of customs bonds, licensing arrangements and similar
obligations do not constitute Property pledged or deposited to support such obligations);




     (vii) licenses, sublicenses, leases or subleases granted to third Persons in the
ordinary course of business not interfering in any material respect with the business of the
Borrower or any of its Subsidiaries;




     (viii) (x) Permitted Encumbrances and (y) easements, rights-of-way, restrictions,
encroachments, municipal and zoning ordinances and other similar charges or encumbrances,
and minor title deficiencies, in each case not securing Indebtedness and not materially
interfering with the conduct of the business of the Borrower or any of its Subsidiaries;



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     (ix) Liens of a lessor arising under any operating lease entered into by the Borrower
and its Subsidiaries in the ordinary course of business and relating solely to such lease
and the assets leased thereunder;




     (x) Liens upon assets of the Borrower or any of its Subsidiaries subject to Capitalized
Lease Obligations permitted pursuant to Section 10.04(b)(iv), provided that the Lien
encumbering the asset giving rise to the Capitalized Lease Obligation does not encumber any
other asset of the Borrower or any of its Subsidiaries;




     (xi) Liens arising pursuant to purchase money mortgages or security interests securing
Indebtedness representing the purchase price (or financing of the purchase price within 90
days after the respective purchase) of assets acquired after the Amendment No. 3 Effective
Date by the Borrower and its Subsidiaries, provided that (x) any such Liens attach
only to the assets so purchased, (y) the principal amount of Indebtedness secured by any
such Lien does not exceed 100% of the Fair Market Value or the purchase price of the
property being purchased at the time of the incurrence of such Indebtedness and (z) the
Indebtedness secured thereby is permitted to be incurred pursuant to Section 10.04(b)(iv);




     (xii) Liens on property or assets acquired pursuant to an acquisition of an Acquired
Entity or Business, or on property or assets of a Subsidiary of the Borrower in existence at
the time such Subsidiary is acquired pursuant to such an acquisition, provided that
(i) any Indebtedness that is secured by such Liens is permitted to exist under Section
10.04(b)(vi), (ii) such Liens are not incurred in connection with, or in contemplation or
anticipation of, such acquisition and do not attach to any other asset of the Borrower or
any of its Subsidiaries and (iii) such Liens do not apply to ABL Priority Collateral;




     (xiii) restrictions imposed in the ordinary course of business and consistent with past
practices on the sale or distribution of designated inventory pursuant to agreements with
customers under which such inventory is consigned by the customer or such inventory is
designated for sale to one or more customers;




     (xiv) Liens in favor of customs or revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;




     (xv) bankers’ Liens, rights of setoff and other similar Liens existing solely with
respect to cash and Cash Equivalents on deposit in one or more of the accounts described
below, in each case granted in the ordinary course of business in favor of the bank or banks
with which the accounts are maintained, securing amounts owing to such bank with respect to
cash management and operating account arrangements, including those involving pooled
accounts and netting arrangements, provided that in no case shall any such Liens
secure (either directly or indirectly) the repayment of any Indebtedness;




     (xvi) Liens securing Permitted Refinancing Indebtedness permitted pursuant to Section
10.04(b).




     (xvii) Liens on the assets of a Foreign Subsidiary securing Indebtedness incurred by
such Foreign Subsidiary in accordance with the terms of Section 10.04(b)(vii);




     (xviii) Liens over promissory notes evidencing grower loans pledged in favor of
financial institutions securing Indebtedness permitted to be incurred pursuant to Section
10.05(xiii); and



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     (xix) other Liens of the Borrower or any Subsidiary of the Borrower that (w) were not
incurred in connection with borrowed money, (x) do not materially impair the use of such
Property in the operation of the business of the Borrower or such Subsidiary, (y) do not
encumber any Accounts or Inventory or other ABL Priority Collateral and (z) do not secure
obligations in excess of $100,000,000 in the aggregate for all such Liens.


In connection with the granting of Liens of the type described in clauses (iv), (ix), (x), (xi),
(xii), (xvi), (xvii) and (xix) of this Section 10.03 by the Borrower or any of its Subsidiaries,
the Administrative Agent and the Collateral Agent shall be authorized, at the request of the
Borrower, to take any actions deemed appropriate by it in connection therewith (including, without
limitation, by executing appropriate lien releases or lien subordination agreements in favor of the
holder or holders of such Liens, in either case solely with respect to the assets subject to such
Liens). No Credit Party will permit any Lien on any Accounts or Inventory of such Credit Party
other than Liens pursuant to clauses (i), (ii), (iii), (v), (xiii), (xiv) and (xvi) of this Section
10.03.




          10.04. Indebtedness.




          (a) The Borrower will not, and will not permit any of its Subsidiaries to contract, create,
incur, assume or suffer to exist (collectively, “incur”) any Indebtedness;
provided, however, that the Borrower and each Domestic Subsidiary of the Borrower
which is a Credit Party may incur Qualified Indebtedness so long as on a Pro Forma Basis: (i) the
Borrower would be in compliance with the covenants set forth in Section 9.12 of the Term Credit
Agreement (as such covenants are in effect on the Amendment No. 3 Effective Date) as of the most
recently ended Test Period for which financial statements have been delivered pursuant to Section
9.01(a) or (c) (in each case, both immediately prior to the incurrence of such Indebtedness and
immediately after giving effect thereto); and (ii) no Default or Event of Default exists
immediately after the respective incurrence.




          (b) The foregoing limitations in Section 10.04(a) will not apply to the following:





     (i) Indebtedness incurred pursuant to this Agreement, and the other Credit Documents;




     (ii) (x) Existing Indebtedness listed on Schedule IV and any Permitted Refinancing
Indebtedness in respect thereof and (y) Permitted Refinancing Indebtedness with respect to
Indebtedness incurred pursuant to Section 10.04(a);




     (iii) Indebtedness under Interest Rate Protection Agreements, Other Hedging Agreements
and Commodity Agreements entered into to protect the Borrower and its Subsidiaries against
fluctuations in interest rates, currency exchange rates and commodity prices and not for
speculative purposes;




     (iv) Capitalized Lease Obligations, Indebtedness of the Borrower and its Subsidiaries
incurred to finance the acquisition of fixed, capital or long term assets and Permitted
Refinancing Indebtedness in respect thereof, provided that the aggregate amount of
Indebtedness outstanding pursuant to this Section 10.04(b)(iv) shall not exceed $50,000,000
at any time;




     (v) intercompany Indebtedness of the Borrower and its Subsidiaries to the extent
permitted by Section 10.05;




     (vi) Indebtedness of a Subsidiary of the Borrower acquired pursuant to the acquisition
of an Acquired Entity or Business (or Indebtedness assumed at the time of such an
acquisition of



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an asset securing such Indebtedness) (such Indebtedness, “Permitted Acquired
Debt”) and any Permitted Refinancing Indebtedness in respect thereof, provided
that (x) such Indebtedness (A) is not secured by Liens on ABL Priority Collateral and (B)
was not incurred in connection with, or in anticipation or contemplation of, such
acquisition and (y) the aggregate principal amount of all Indebtedness outstanding pursuant
to this Section 10.04(b)(vi) at any time shall not exceed $50,000,000;




     (vii) Indebtedness of Foreign Subsidiaries of the Borrower, provided that the
aggregate principal amount of all such Indebtedness outstanding at any time under this
Section 10.04(b)(vii) shall not exceed $75,000,000;




     (viii) additional unsecured Indebtedness of the Borrower consisting of unsecured
guarantees of (x) obligations (which guaranteed obligations do not themselves constitute
Indebtedness) of one or more Subsidiaries of the Borrower, (y) leases pursuant to which one
or more Subsidiaries of the Borrower are the respective lessees and (z) Indebtedness of
Subsidiaries of the Borrower of the type permitted pursuant to Section 10.04(b)(xi);




     (ix) Indebtedness arising from the honoring by a bank or other financial institution of
a check, draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of business, so long as
such Indebtedness is extinguished within five Business Days of the incurrence thereof;




     (x) (x) Indebtedness of the Borrower or any of its Subsidiaries evidenced by completion
guarantees and performance and surety bonds (but excluding appeal, performance and other
bonds and/or guaranties issued in respect of obligations arising in connection with
litigation) incurred in the ordinary course of business for purposes of insuring the
performance of the Borrower or such Subsidiary in an aggregate amount not to exceed
$50,000,000 at any time outstanding, (y) Indebtedness of the Borrower or any of its
Subsidiaries evidenced by appeal, performance and other bonds and/or guaranties issued in
respect of obligations arising in connection with litigation for purposes of insuring the
performance of the Borrower or such Subsidiary in an aggregate amount not to exceed
$50,000,000 at any time outstanding and (z) Indebtedness of the Borrower or any of its
Subsidiaries evidenced by appeal bonds and/or guaranties issued in respect of obligations
arising in connection with the European Commission Decision pending appeal by the Borrower
or such Subsidiaries of such decision in an aggregate amount not to exceed €45,000,000 at
any time outstanding;




     (xi) Indebtedness of the Borrower or any Subsidiary of the Borrower arising from
agreements of the Borrower or a Subsidiary of the Borrower providing for indemnification,
adjustment of purchase price or other similar obligations, in each case, incurred or assumed
in connection with the disposition or acquisition of any business, assets or a Subsidiary of
the Borrower permitted under this Agreement (other than guarantees of Indebtedness incurred
by any Person acquiring all or any portion of such business, assets or Subsidiary for the
purpose of financing such acquisition);




     (xii) unsecured Indebtedness of the Borrower evidenced by a guaranty of the
Indebtedness or other obligations of any other Person (including Indebtedness of Foreign
Subsidiaries permitted pursuant to Section 10.04(b)(vii) above), so long as the aggregate
amount of the Contingent Obligations of the Borrower pursuant to this Section 10.04(b)(xii)
does not exceed $75,000,000 at any time;



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(xiii) Indebtedness of Foreign Subsidiaries of the Borrower under bank guaranties and
letters of credit issued by financial institutions (on behalf of such Foreign Subsidiaries)
in an aggregate amount not to exceed $50,000,000 at any time;




     (xiv) (x) Indebtedness of Foreign Subsidiaries incurred in connection with grower loan
programs in an aggregate principal amount not to exceed $75,000,000 at any time outstanding
and (y) unsecured Indebtedness of the Borrower evidenced by a guaranty of Indebtedness
permitted pursuant to preceding subclause (x) of this Section 10.04(b)(xiv);




     (xv) Indebtedness of the Borrower which may be deemed to exist under its non-qualified
excess savings plan for employees;




     (xvi) Indebtedness under letters of credit or bank guarantees not to exceed
$150,000,000 at one time outstanding;




     (xvii) additional unsecured Indebtedness of the Borrower and its Subsidiaries not
otherwise permitted hereunder not exceeding $100,000,000 in aggregate principal amount at
any time outstanding, provided that no such additional Indebtedness shall be
incurred at any time a Default or Event of Default then exists or would result therefrom;
and




     (xviii) the Borrower, the Subsidiary Guarantors and any Foreign Subsidiary may incur
and remain liable with respect to the Indebtedness under the Term Credit Agreement and the
other Term Credit Documents.



          10.05. Advances; Investments; Loans. The Borrower will not and will not permit any of its Subsidiaries to, directly or
indirectly, lend money or extend credit or make advances to any Person, or purchase or acquire any
stock, obligations or securities of, or any other Equity Interest in, or make any capital
contribution to, any Person, or purchase or own a futures contract or otherwise become liable for
the purchase or sale of currency or other commodities at a future date in the nature of a futures
contract, or hold any cash or Cash Equivalents (each of the foregoing an “Investment” and,
collectively, “Investments”), except:





     (i) (w) the Borrower and its Subsidiaries may acquire and hold cash and Cash
Equivalents; provided, however, that at any time a Loan is outstanding, the
aggregate amount of Unrestricted Cash held by any of the Borrower and its Domestic
Subsidiaries shall not exceed $25,000,000 for any period of five consecutive Business Days;




     (ii) the Borrower and its Subsidiaries may acquire and hold receivables owing to it, if
created or acquired in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms (including the dating of receivables) of the Borrower
or such Subsidiary;




     (iii) the Borrower and its Subsidiaries may acquire and own investments (including debt
obligations) received in connection with the bankruptcy or reorganization of suppliers,
trade creditors, licensees, licensors and customers and in good faith settlement of
delinquent obligations of, and other disputes with, suppliers, trade creditors, licensees,
licensors and customers arising in the ordinary course of business;




     (iv) Interest Rate Protection Agreements, Other Hedging Agreements and Commodity
Agreements entered into in compliance with Section 10.04(b)(iii) shall be permitted;



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     (v) (x) Investments constituting Intercompany Existing Indebtedness in existence on the
Amendment No. 3 Effective Date and any Permitted Refinancing Indebtedness in respect
thereof, (y) such other Investments in existence on the Amendment No. 3 Effective Date and
listed on Schedule IX (without giving effect to any additions thereto or replacements
thereof); provided that any additional Investments made with respect to the
Investments described in preceding subclause (y) of this Section 10.05(v) shall be permitted
only if independently justified under the other provisions of this Section 10.05 and (z) so
long as no Event of Default has occurred and is continuing, transfers of cash and Cash
Equivalents among the Borrower and its Subsidiaries in the ordinary course of business for
working capital purposes;




     (vi) Investments (x) by any Credit Party in any Credit Party, (y) by any Subsidiary
that is not a Credit Party in the Borrower or any Subsidiary and (z) so long as the Payment
Conditions are satisfied both before and after giving effect to such Investments, by the
Credit Parties in Subsidiaries that are not Credit Parties;




     (vii) (x) loans by the Borrower and its Subsidiaries to officers, employees and
directors of the Borrower and its Subsidiaries for bona fide business
purposes, in each case incurred in the ordinary course of business, in an aggregate
outstanding principal amount not to exceed $5,000,000 at any time outstanding (determined
without regard to any write-downs or write-offs of such loans and advances) shall be
permitted and (y) advances of reimbursable expenses by the Borrower and its respective
Subsidiaries to officers, employees and directors of the Borrower and its Subsidiaries for
bona fide purposes, in each case incurred in the ordinary course of
business;




     (viii) so long as the Payment Conditions are satisfied both before and after giving
effect thereto, the U.S. Dole Group may make Permitted Acquisitions;




     (ix) the Borrower and its Subsidiaries may own the capital stock of, or other Equity
Interests in, their respective Subsidiaries created or acquired in accordance with the terms
of this Agreement;




     (x) the Borrower and its Subsidiaries may acquire and hold non-cash consideration
issued by the purchaser of assets in connection with a sale of such assets to the extent
permitted by Sections 10.02(iii) and (xiii);




     (xi) The Borrower may acquire and hold obligations of one or more officers, directors
or other employees of the Borrower or any of its Subsidiaries in connection with such
officers’, directors’ or employees’ acquisition of shares of capital stock of the Borrower,
so long as no cash is paid by the Borrower or any of its Subsidiaries to such officers,
directors or employees in connection with the acquisition of any such obligations;




     (xii) loans or advances by any Subsidiary of the Borrower in connection with grower
loan programs; provided that (I) at no time shall the aggregate outstanding
principal amount of all such loans and advances made pursuant to this Section 10.05(xii)
exceed $75,000,000 (determined without regard to write-downs or write-offs thereof) and (II)
no loans or advances may be made pursuant to this Section 10.05(xii) at any time any
Specified Default or any Event of Default is in existence (or would be in existence after
giving effect thereto);




     (xiii) any Non-Wholly Owned Subsidiary of the Borrower may make loans to its
shareholders generally so long as (x) the Borrower or its respective Subsidiary which owns
the Equity Interest in the Subsidiary making such loans receives at least its proportionate
share of



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such loans (based upon its relative holding of the Equity Interests in the Subsidiary
making such loans), (y) unless the entering into of the Intercompany Subordination Agreement
requires the consent of the minority shareholder of such Non-Wholly Owned Subsidiary (and
such consent is not obtained), such Non-Wholly-Owned Subsidiary (as obligee of such loan)
and the Borrower or such other Subsidiary (as obligor of such loan) shall be subject to the
provisions of the Intercompany Subordination Agreement and (z) the aggregate outstanding
principal amount of all loans pursuant to this clause (xii) which are not subject to the
subordination provisions of the Intercompany Subordination Agreement shall not exceed
$50,000,000 at any time;




     (xiv) Investments constituting guaranties permitted by Section 10.04;




     (xv) the Bermuda Partnership Partners may make additional Investments in the Bermuda
Partnership not otherwise permitted by this Section, so long as (x) the Bermuda Partnership
promptly (and in any event within one Business Day of receipt thereof) uses 100% of the cash
proceeds of such Investment to make a prepayment on the intercompany loan owing by it to the
Bermuda Company and incurred pursuant to the Intercompany Distribution Transactions, and (y)
any Investment in the form of an intercompany loan or advance pursuant to this clause (xiv)
shall be subject to subordination as, and to the extent required by, the Intercompany
Subordination Agreement;




     (xvi) so long as the Payment Conditions are satisfied both before and after giving
effect to such Investments, the Borrower and its Subsidiaries may make additional
Investments not otherwise permitted under this Section 10.05; and




     (xvii) so long as no Default or Event of Default then exists or would result therefrom,
the Borrower and its respective Subsidiaries may make Investments not otherwise permitted by
Sections (i) through (xv); provided that (x) the aggregate amount of Investments
made pursuant to this Section 10.05(xvii) after the Amendment No. 3 Effective Date shall not
exceed $25,000,000 (determined without regard to any write-downs or write-offs thereof).



          10.06. Restricted Payments; etc.




          The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any
dividends (other than dividends payable solely in non-redeemable common stock or comparable common
equity interests of the Borrower or any such Subsidiary, as the case may be) or return any equity
capital to, its stockholders, partners, members or other equity holders or authorize or make any
other distribution, payment or delivery of property or cash to its stockholders, partners, members
or other equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or
indirectly, for a consideration, any shares of any class of its capital stock or other Equity
Interests, now or hereafter outstanding (or any warrants for or options or stock appreciation
rights in respect of any of such shares or other Equity Interests), or set aside any funds for any
of the foregoing purposes, and the Borrower will not permit any of its Subsidiaries to purchase or
otherwise acquire for a consideration any shares of any class of the capital stock or other Equity
Interests of any direct or indirect parent of such Subsidiary now or hereafter outstanding (or any
options or warrants or stock appreciation rights issued by such Person with respect to its capital
stock or other Equity Interests) (all of the foregoing “Dividends”) except that:





     (i) (x) any Subsidiary of the Borrower may pay Dividends to the Borrower or any
Wholly-Owned Subsidiary of the Borrower and (y) any non-Wholly-Owned Subsidiary of the
Borrower may pay cash Dividends to its shareholders generally so long as the Borrower or its
Subsidiary which owns the Equity Interest in the Subsidiary paying such Dividends receives
at least its proportionate share thereof (based upon its relative holding of the Equity
Interests in the Subsidiary paying such Dividends and taking into account the relative
preferences, if any, of the



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various classes of Equity Interests of such Subsidiary); provided that any
Dividend made pursuant to the preceding clause (x) by any Credit Party to any Wholly-Owned
Subsidiary that is not a Credit Party may only be made if (A) (I) no Specified Default and
no Event of Default then exists or would result therefrom and (II) such Wholly-Owned
Subsidiary promptly distributes and/or transfer any Property received pursuant to such
Dividend (directly or indirectly through other Wholly-Owned Subsidiaries) to a Credit Party
or (B) the Subsidiary making such Dividend is not a Credit Party;




     (ii) the Borrower may redeem or purchase shares of the Borrower Common Stock or options
to purchase the Borrower Common Stock, held by former officers or employees of the Borrower
or any of its Subsidiaries following the death, disability, retirement or termination of
employment of such officers or employees, provided that (x) the only consideration
paid by the Borrower in respect of such redemptions and/or purchases shall be cash, (y) the
aggregate amount paid by the Borrower in cash in respect of all such redemptions and/or
purchases shall not exceed $10,000,000 in any Fiscal Year of the Borrower, and (z) at the
time of any redemption or purchase pursuant to this Section 10.06(ii), no Specified Default
or Event of Default shall then exist or result therefrom;




     (iii) the Borrower may pay regularly scheduled Dividends on Qualified Preferred Stock
issued by it pursuant to the terms thereof solely through the issuance of additional shares
of such Qualified Preferred Stock rather than in cash;




     (iv) the Borrower may make repurchases of Equity Interests of the Borrower or any
Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants to the
extent such Equity Interests represent a portion of the exercise price of such options or
warrants;




     (v) the Borrower may make repurchases of Equity Interests of the Borrower in lieu of
the issuance of fractional shares upon the exercise of options or warrants to purchase
Borrower Common Stock;




     (vi) the Borrower may make distributions of rights to holders of Borrower Common Stock
pursuant to a customary shareholder rights plan and the redemption of such rights for
nominal consideration;




     (vii) the Borrower may make additional Dividends not otherwise permitted under this
Section 10.06 in an aggregate after the Amendment No. 3 Effective Date not to exceed
$25,000,000; and




     (viii) so long as the Payment Conditions are satisfied both before and after giving
effect to the payment of such Dividends, the Borrower and its Subsidiaries may pay
additional Dividends not otherwise permitted under this Section 10.06.



          10.07. Transactions with Affiliates. The Borrower will not, and will not permit any of its Subsidiaries to, enter into any
transaction or series of transactions with any Affiliate of the Borrower except on terms and
conditions substantially as favorable to the Borrower or such Subsidiary as would be reasonably
expected to be obtainable by the Borrower or such Subsidiary at the time in a comparable
arm’s-length transaction with a Person other than an Affiliate; provided that the following
shall in any event be permitted: (i) intercompany transactions among the Borrower and its
Subsidiaries; (ii) the payment of consulting or other fees to the Borrower by any of its
Subsidiaries in the ordinary course of business; (iii) customary fees to directors of the Borrower
and its Subsidiaries; (iv) the Borrower and its Subsidiaries may enter into the employment
arrangements with respect to the procurement of services






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with their respective officers and employees in the ordinary course of business; (v) Dividends
may be paid by the Borrower to the extent permitted by Section 10.06; (vi) transactions between the
Borrower and/or any of its Subsidiaries and their respective Affiliates listed on Schedule XVI
hereto; and (vii) Investments in, and transactions with, any Person that is an Affiliate of the
Borrower solely as a result of the Borrower’s or a Subsidiary’s ownership of Equity Interests of
such Person.




          10.08. Fixed Charge Coverage Ratio. During any Compliance Period, the Borrower shall not permit (i) the Fixed Charge Coverage
Ratio to be less than 1.00:1.00 for the four Fiscal Quarters most recently ended for which
financial statements are available immediately prior to the beginning of such Compliance Period and
(ii) the Fixed Charge Coverage Ratio for each four-Fiscal Quarter period ending during such
Compliance Period to be less than 1.00:1.00.




          10.09. Limitation on Voluntary Payments and Modifications of Indebtedness; Modifications
of Certificate of Incorporation, By-Laws and Certain Other Agreements; Issuances of Capital Stock;
etc.




          (a) The Borrower will not, and will not permit any of its Subsidiaries to:





     (i) make any voluntary or optional payment or prepayment on or redemption, repurchase
or acquisition for value of (including, without limitation, by way of depositing with the
trustee or administrative agent with respect thereto or any other Person money or securities
before due for the purpose of paying when due), or any prepayment, repurchase, redemption or
acquisition for value as a result of any asset sale, change of control or similar event of
any Specified Indebtedness or Indebtedness under the Term Credit Agreement other than (v)
refinancings of Specified Indebtedness in exchange for or with the proceeds of any Permitted
Refinancing Indebtedness, (w) retirement of Specified Indebtedness or Indebtedness under the
Term Credit Agreement in exchange for Borrower Common Stock or any Qualified Preferred
Stock, (x) mandatory prepayments required by, and in accordance with the terms of, the Term
Credit Agreement, (y) so long as the amount of Investments (net of any actual return of such
Investments) by the Credit Parties in Subsidiaries that are not Credit Parties made
following the Amendment No. 3 Effective Date is zero or less, prepayments of Indebtedness
under the Term Credit Agreement by Subsidiaries that are not Credit Parties (but not by any
Credit Party) and (z) so long as the Payment Conditions are satisfied both before and after
giving effect to such other repurchases or redemptions of Specified Indebtedness or any
voluntary prepayment or other repurchase or redemption of the Term Loans;




     (ii) amend or modify, or permit the amendment or modification of, any provision of any
Specified Indebtedness, in any manner that is adverse in any material respect to the
interests of the Lenders; or




     (iii) amend, modify or change any Qualified Preferred Stock, its certificate of
incorporation (including, without limitation, by the filing or modification of any
certificate of designation), by-laws, certificate of partnership, partnership agreement,
certificate of limited liability company, limited liability company agreement (or equivalent
organizational documents) or any agreement entered into by it, with respect to its capital
stock or other Equity Interests, or enter into any new agreement with respect to its capital
stock or other Equity Interests, other than (x) any amendments, modifications or changes
pursuant to this Section 10.09(a) and any such new agreements which do not adversely affect
the interests of the Lenders in any material respect and (y) any amendment to such Person’s
respective certificates of incorporation or other organizational documents to authorize the
issuance of capital stock or other Equity Interests otherwise permitted to be issued
pursuant to the terms of this Agreement.



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          (b) Neither the Borrower nor any of its Subsidiaries shall designate any Indebtedness (other
than the Obligations and obligations under the Term Credit Agreement) as “Designated Guarantor
Senior Debt” or “Designated Senior Debt” for purposes of any agreement governing Specified
Indebtedness.




          10.10. Limitation on Issuance of Equity Interests. The Borrower will not issue (i) any Preferred Equity (or any options, warrants or rights to
purchase Preferred Equity) other than Qualified Preferred Stock or (ii) any redeemable common stock
or equivalent common Equity Interests.




          10.11. Limitation on Certain Restrictions on Subsidiaries. The Borrower will not, nor will permit any of its Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective, any encumbrance or restriction on
the ability of any such Subsidiary to (x) pay dividends or make any other distributions on its
capital stock or any other Equity Interests or participation in its profits owned by the Borrower
or any Subsidiary of the Borrower, or pay any Indebtedness owed to the Borrower or a Subsidiary of
the Borrower, (y) make loans or advances to the Borrower or any Subsidiary of the Borrower or (z)
transfer any of its properties or assets to the Borrower or any of its Subsidiaries, except for
such encumbrances or restrictions existing under or by reason of (i) applicable law, (ii) this
Agreement and the other Credit Documents, (iii) customary provisions restricting subletting or
assignment of any lease governing a leasehold interest of the Borrower or a Subsidiary of the
Borrower, (iv) customary provisions restricting assignment of any licensing agreement (in which the
Borrower or any of its Subsidiaries is the licensee) or any other contract entered into by the
Borrower or any Subsidiary of the Borrower in the ordinary course of business, (v) any agreement or
instrument governing Permitted Acquired Debt, which encumbrance or restriction is not applicable to
any Person or the properties or assets of any Person other than the Person or the properties or
assets of the Person acquired pursuant to the respective acquisition and so long as the respective
encumbrances or restrictions were not created (or made more restrictive) in connection with or in
anticipation of such acquisition, (vi) restrictions applicable to any Non-Wholly Owned Subsidiary
existing at the time of the acquisition thereof as a result of an Investment pursuant to Section
10.05; provided that the restrictions applicable to such joint venture are not made more
burdensome, from the perspective of the Borrower and its Subsidiaries, than those as in effect
immediately before giving effect to the consummation of the respective Investment, (vii) any
restriction or encumbrance with respect to assets subject to Liens permitted by Sections 10.03(iv),
(x), (xi), (xii) and (xvi), (viii) the Term Credit Documents, (ix) restrictions set forth in the
documents governing Existing Indebtedness and (x) restrictions in the documents governing
Indebtedness incurred following the Amendment No. 3 Effective Date which are not materially more
restrictive than the restrictions described in the foregoing clause (vii).




          10.12. Special Restrictions Relating to Principal Property. The Borrower will not, and will not permit any Subsidiary Guarantor to, (i) own or acquire
any Principal Property (other than the Principal Properties designated on Schedule XVII hereto) or
(ii) directly or indirectly, create, incur, issue, assume, guarantee or otherwise become liable for
or suffer to exist any Indebtedness secured by a Lien on any Principal Property; provided
however that, notwithstanding the foregoing, (x) the Borrower and its Subsidiaries may
acquire (by way of third-party purchase) up to (but not more than) two Principal Properties after
the Amendment No. 3 Effective Date and, thereafter, own such Principal Properties and (y) the
Borrower and its Subsidiaries may own additional Principal Properties which are not Principal
Properties on the Amendment No. 3 Effective Date (or, if acquired after the Amendment No. 3
Effective Date, on such date of acquisition) if (x) the respective Principal Property becomes a
Principal Property after the Amendment No. 3 Effective Date (or such date of acquisition) as a
result of the making of capital expenditures or other investments in such Property by the Borrower
or the respective Subsidiary or (y) the respective Principal Property is constructed by the
Borrower or the respective Subsidiary. The restrictions






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set forth in this Section 10.12 shall cease to apply following the date that Principal
Properties cease to constitute Excluded Property.




          10.13. No Additional Deposit Accounts; etc. The Borrower will not, and will not permit any Subsidiary Guarantor, directly or indirectly,
open, maintain or otherwise have any checking, savings, deposit, securities or other accounts at
any bank or other financial institution where cash or Cash Equivalents are or may be deposited or
maintained with any Person, other than (i) the Core Concentration Account, (ii) the Collection
Accounts set forth on Part A of Schedule III, and (iii) the Excluded Deposit Accounts;
provided that the Borrower or any Subsidiary Guarantor may open new Collection Accounts,
not set forth in such Schedule III, so long as prior to opening any such account (i) the
Administrative Agent has consented in writing to such opening (which consent shall not be
unreasonably withheld or delayed), (ii) the Borrower has delivered an updated Schedule III to the
Administrative Agent listing such new account if such account is a Collection Account and (iii) in
the case of any new Collection Account), the financial institution with which such account is
opened, together with the Borrower or the Subsidiary Guarantor which has opened such account and
the Collateral Agent have executed and delivered to the Administrative Agent a Cash Management
Control Agreement.




          SECTION 11. Events of Default.




          Upon the occurrence of any of the following specified events (each, an “Event of
Default”):




          11.01. Payments. The Borrower shall (i) default in the payment when due of any principal of any Loan, (ii)
default, and such default shall continue for three or more Business Days, in the payment when due
of any Unpaid Drawing, any interest on any Loan or any Fees or (iii) default, and such default
shall continue for 10 or more Business Days after notice to the Borrower by the Administrative
Agent or any Lender, in the payment when due of any other amounts owing hereunder or under any
other Credit Document; or




          11.02. Representations, etc. Any representation, warranty or statement made or deemed made by any Credit Party herein or in
any other Credit Document (other than a Foreign Security Document) or in any statement or
certificate delivered pursuant hereto or thereto shall prove to be untrue in any material respect
on the date as of which made or deemed made; or




          11.03. Covenants. The Borrower or any of its Subsidiaries shall (a) default in the due performance or
observance by it of any term, covenant or agreement contained in Sections 9.01(f)(i), 9.10 or 10,
or (b) default in the due performance or observance by it of any term, covenant or agreement
contained in Section 9.01(n) and such default shall continue unremedied for at least one Business
Day or (c) default in the due performance or observance by it of any term, covenant or agreement
contained in this Agreement (other than those referred to in Sections 11.01, 11.02 or clause (a) or
clause (b) of this Section 11.03) and such default shall continue unremedied for a period of at
least 30 days; or




          11.04. Default Under Other Agreements. (a) The Borrower or any of its Subsidiaries shall (i) default in any payment with respect
to any Indebtedness (other than the Obligations) beyond the period of grace, if any, provided in
the instrument or agreement under which Indebtedness was created or (ii) default in the observance
or performance of any agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to cause, or to permit
the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause (determined without regard to whether any notice is required), any such
Indebtedness to become due prior to its stated maturity; or (b) any Indebtedness (other than the






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Obligations) of the Borrower or any of its Subsidiaries shall be declared to be (or shall
become) due and payable, or shall be required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof; provided that it shall not
constitute an Event of Default pursuant to clause (a) or (b) of this Section 11.04 unless the
principal amount of any one issue of such Indebtedness, or the aggregate amount of all such
Indebtedness referred to in clauses (a) and (b) above, equals or exceeds $25,000,000; or




          11.05. Bankruptcy, etc. The Borrower or any of its Subsidiaries shall commence a voluntary case concerning itself
under Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or
any successor thereto (the “Bankruptcy Code”); or an involuntary case is commenced against the
Borrower or any of its Subsidiaries and the petition is not controverted within 10 days, or is not
dismissed within 60 days, after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of
the Borrower or any of its Subsidiaries; or the Borrower or any of its Subsidiaries commences any
other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter
in effect relating to the Borrower or any of its Subsidiaries; or there is commenced against the
Borrower or any of its Subsidiaries any such proceeding which remains undismissed for a period of
60 days; or the Borrower or any of its Subsidiaries is adjudicated insolvent or bankrupt; or any
order of relief or other order approving any such case or proceeding is entered; or the Borrower or
any of its Subsidiaries suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a period of 60 days; or
the Borrower or any of its Subsidiaries makes a general assignment for the benefit of creditors; or
any Company action is taken by the Borrower or any of its Subsidiaries for the purpose of effecting
any of the foregoing; or




          11.06. ERISA. (a) Any Plan shall fail to satisfy the minimum funding standard required for any plan year
or part thereof under Section 412 of the Code or Section 302 of ERISA or a waiver of such standard
or extension of any amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a contributing sponsor (as
defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA shall be subject to
the advance reporting requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66, .67 or
 .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur with respect to such Plan
within the following 30 days which will result in a Material Adverse Effect, any Plan which is
subject to Title IV of ERISA shall have had or is likely to have a trustee appointed to administer
such Plan pursuant to Section 4042(b) of ERISA, any Plan or Multiemployer Plan which is subject to
Title IV of ERISA is, shall have been or is likely to be involuntarily terminated or to be the
subject of termination proceedings under ERISA, any Plan subject to Title IV of ERISA shall have an
Unfunded Current Liability, a contribution required to be made with respect to a Plan subject to
Title IV of ERISA or Multiemployer Plan or a Foreign Pension Plan has not been made within 60 days
of when due, the Borrower or any Subsidiary of the Borrower or any ERISA Affiliate has incurred or
is likely to incur any liability to or on account of a Plan subject to Title IV of ERISA or
Multiemployer Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or
4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on account of a group health plan
(as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of
the Code, or the Borrower or any Subsidiary of the Borrower has incurred or is likely to incur
liabilities pursuant to one or more employee welfare benefit plans (as defined in Section 3(1) of
ERISA) that provide benefits to retired employees or other former employees (other than as required
by Section 601 of ERISA) or Plans or Foreign Pension Plans, a “default” within the meaning of
Section 4219(c)(5) of ERISA, shall occur with respect to any Plan or Multiemployer Plan; (b) there
shall result from any such event or events described above in this Section 10.06 the imposition of
a lien, the granting of a security






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interest, or a liability or a material risk of incurring a liability resulting from any event
described in clause (a) above; and (c) such lien, security interest or liability, individually
and/or in the aggregate, in the reasonable opinion of the Required Lenders, has had, or could
reasonably be expected to have, a Material Adverse Effect; or




          11.07. Security Documents. (a) Any Security Document shall cease to be in full force and effect (except in accordance
with the terms thereof), or shall, subject to the Intercreditor Agreement, cease to give the
Collateral Agent for the benefit of the Secured Creditors the Liens, rights, powers and privileges
purported to be created thereby (including, without limitation, a perfected security interest in,
and Lien on, all of the Collateral), in favor of the Collateral Agent, superior to and prior to the
rights of all third Persons (except as permitted by Section 10.03), and subject to no other Liens
(except as permitted by Section 10.03), or (b) any Credit Party shall default in the due
performance or observance of any term, covenant or agreement on its part to be performed or
observed pursuant to any such Security Document and such default shall continue beyond any cure or
grace period specifically applicable thereto pursuant to the terms of any such Security Document;
provided that the failure to have a perfected and enforceable Lien on Collateral in favor
of the Collateral Agent shall not give rise to an Event of Default under this Section 11.07, unless
the aggregate fair market value of all Collateral over which the Collateral Agent fails to have a
perfected and enforceable Lien (exclusive of Collateral that is the subject of an Excluded Event)
equals or exceeds $10,000,000; or




          11.08. Guaranties. Any Subsidiaries Guaranty or any provision thereof shall cease to be in full force or
effect as to the relevant Subsidiary Guarantor, or any Subsidiary Guarantor or Person acting by or
on behalf of such Subsidiary Guarantor shall deny or disaffirm such Subsidiary Guarantor’s
obligations under the relevant Subsidiaries Guaranty, or any Subsidiary Guarantor shall default in
the due performance or observance of any term, covenant or agreement on its part to be performed or
observed pursuant to its Subsidiaries Guaranty; or




          11.09. Judgments. One or more judgments or decrees shall be entered against the Borrower or any of its
Subsidiaries involving a liability (to the extent not paid or covered by a reputable and solvent
insurance company (with any portion of any judgment or decree not so covered to be included in any
determination hereunder)) equal to or in excess of $25,000,000 for all such judgments and decrees
and all such judgments or decrees shall either be final and non-appealable or shall not have been
vacated, discharged or stayed or bonded pending appeal for any period of 60 consecutive days;
provided, however, that for the avoidance of doubt, the European Commission
Decision shall be deemed to have been stayed for so long as such decision is not final and
non-appealable and the Borrower and its applicable Subsidiaries are diligently pursuing an appeal
of such decision and have complied with all requirements of the European Commission with respect to
the posting of bonds, bank guarantees or other security for the European Commission Decision (after
giving effect to any waiver by the European Commission of any such requirements); provided,
further, that the rendering of any other such judgment(s) or decree(s) by courts outside of
the United States and Bermuda shall not be an Event of Default under this Section 11.09 unless (i)
the Borrower and its Subsidiaries which are subject to the judgment(s) or decree(s), as of the date
of the issuance of such judgment(s) or decree(s) (or any later date while such judgment(s) or
decree(s) are still in effect) have at least $25,000,000 in net assets (determined on a book basis
without regard to any write-down or write-off of such assets as a result of such judgment(s) or
decree(s)) located in the jurisdictions (i.e., the relevant country or countries or any
larger jurisdiction of the respective court(s)) of the courts rendering such judgment(s) or
decree(s) (which is (or are) final and non-appealable or has (or have) not been vacated,
discharged, stayed or bonded pending appeal for any period of 60 consecutive days) or (ii) an order
or orders enforcing such judgment(s) or decree(s) (which is (or are) final and non-appealable or
has (or have) not been vacated, discharged, stayed or bonded pending appeal for any period of 60
consecutive days) is entered by a court or courts of competent jurisdiction in a






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jurisdiction or jurisdictions where the Borrower and/or its Subsidiaries subject to the order,
as of the date of the entry of such order of enforcement (or any later date while any such order is
still in effect), have at least $25,000,000 in net assets located in such jurisdiction or
jurisdictions (determined on a book basis without regard to any write-down or write-off of such
assets as a result of such judgment(s) or decree(s)); or




          11.10. Ownership. A Change of Control shall have occurred; or




          11.11. Denial of Liability. The Borrower shall deny its obligations under this Agreement, any Note or any other Credit
Document;



then, and in any such event, and at any time thereafter, if any Event of Default shall then be
continuing, the Administrative Agent may and, upon the written request of the Required Lenders,
shall by written notice to the Borrower, take any or all of the following actions, without
prejudice to the rights of any Agent or any Lender to enforce its claims against any Credit Party
(provided that if an Event of Default specified in Section 11.05 shall occur with respect
to the Borrower, the result which would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i) and (ii) below shall occur automatically without
the giving of any such notice): (i) declare the Total Commitment terminated, whereupon the
Revolving Loan Commitment of each Lender shall forthwith terminate immediately and any Commitment
Commission and any other Fees shall forthwith become due and payable without any other notice of
any kind; (ii) declare the principal of and any accrued interest in respect of all Loans and all
Obligations owing hereunder (including Unpaid Drawings) to be, whereupon the same shall become,
forthwith due and payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower; (iii) enforce, as Collateral Agent (or direct the
Collateral Agent to enforce), subject to the Intercreditor Agreement, any or all of the Liens and
security interests created pursuant to the Security Documents; (iv) terminate any Letter of Credit
which may be terminated in accordance with its terms; (v) direct the Borrower to pay (and the
Borrower agrees that upon receipt of such notice, or upon the occurrence of an Event of Default
specified in Section 11.05 with respect to the Borrower, it will pay) to the Administrative Agent
at the Payment Office such additional amount of cash, to be held as security by the Administrative
Agent, as is equal to the aggregate Stated Amount of all Letters of Credit issued for the account
of the Borrower and then outstanding; and (vi) apply any cash collateral held by the Administrative
Agent as provided in Section 5.02 to the repayment of the Obligations.




          SECTION 12. The Administrative Agent.




          12.01. Appointment. The Lenders hereby irrevocably designate and appoint DBNY as Administrative Agent (for
purposes of this Section 12 and Section 13.01, the term “Administrative Agent” also shall include
DBNY in its capacity as Collateral Agent pursuant to the Security Documents) to act as specified
herein and in the other Credit Documents. Each Lender hereby irrevocably authorizes, and each
holder of any Note by the acceptance of such Note shall be deemed irrevocably to authorize, the
Administrative Agent to take such action on its behalf under the provisions of this Agreement, the
other Credit Documents and any other instruments and agreements referred to herein or therein and
to exercise such powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Administrative Agent by the terms hereof and thereof and such other
powers as are reasonably incidental thereto. The Administrative Agent may perform any of its
respective duties hereunder by or through its officers, directors, agents, employees or affiliates.







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          12.02. Nature of Duties.




          (a) The Administrative Agent shall not have any duties or responsibilities except those
expressly set forth in this Agreement and in the other Credit Documents. Neither the
Administrative Agent nor any of its officers, directors, agents, employees or affiliates shall be
liable for any action taken or omitted by it or them hereunder or under any other Credit Document
or in connection herewith or therewith, unless caused by its or their gross negligence or willful
misconduct (as determined by a court of competent jurisdiction in a final and non-appealable
decision). The duties of the Administrative Agent shall be mechanical and administrative in
nature; the Administrative Agent shall not have by reason of this Agreement or any other Credit
Document a fiduciary relationship in respect of any Lender or the holder of any Note; and nothing
in this Agreement or in any other Credit Document, expressed or implied, is intended to or shall be
so construed as to impose upon the Administrative Agent any obligations in respect of this
Agreement or any other Credit Document except as expressly set forth herein or therein.




          (b) Notwithstanding any other provision of this Agreement or any provision of any other Credit
Document, the Lead Arrangers are named as such for recognition purposes only, and in their
capacities as such shall have no powers, duties, responsibilities or liabilities with respect to
this Agreement or the other Credit Documents or the transactions contemplated hereby and thereby;
it being understood and agreed that each Lead Arranger shall be entitled to all indemnification and
reimbursement rights in favor of the Administrative Agent as, and to the extent, provided for under
Sections 12.06 and 13.01. Without limitation of the foregoing, no Lead Arranger shall, solely by
reason of this Agreement or any other Credit Documents, have any fiduciary relationship in respect
of any Lender or any other Person.




          12.03. Lack of Reliance on the Administrative Agent. Independently and without reliance upon the Administrative Agent, each Lender and the
holder of each Note, to the extent it deems appropriate, has made and shall continue to make (i)
its own independent investigation of the financial condition and affairs of the Borrower and its
Subsidiaries in connection with the making and the continuance of the Loans and the taking or not
taking of any action in connection herewith and (ii) its own appraisal of the creditworthiness of
the Borrower and its Subsidiaries and, except as expressly provided in this Agreement, the
Administrative Agent shall not have any duty or responsibility, either initially or on a continuing
basis, to provide any Lender or the holder of any Note with any credit or other information with
respect thereto, whether coming into its possession before the making of the Loans or at any time
or times thereafter. The Administrative Agent shall not be responsible to any Lender or the holder
of any Note for any recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith or for the execution,
effectiveness, genuineness, validity, enforceability, perfection, collectibility, priority or
sufficiency of this Agreement or any other Credit Document or the financial condition of the
Borrower or any of its Subsidiaries or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of this Agreement or any
other Credit Document, or the financial condition of the Borrower or any of its Subsidiaries or the
existence or possible existence of any Default or Event of Default.




          12.04. Certain Rights of the Administrative Agent. If the Administrative Agent requests instructions from the Required Lenders with respect to
any act or action (including failure to act) in connection with this Agreement or any other Credit
Document, the Administrative Agent shall be entitled to refrain from such act or taking such action
unless and until the Administrative Agent shall have received instructions from the Required
Lenders; and the Administrative Agent shall not incur liability to any Lender by reason of so
refraining. Without limiting the foregoing, neither any Lender nor the holder of any Note shall
have any right of action whatsoever against the Administrative Agent as a result of the






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Administrative Agent acting or refraining from acting hereunder or under any other Credit
Document in accordance with the instructions of the Required Lenders.




          12.05. Reliance. The Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cablegram, radiogram, order or other document or telephone message signed, sent
or made by any Person that the Administrative Agent believed to be the proper Person, and, with
respect to all legal matters pertaining to this Agreement and any other Credit Document and its
duties hereunder and thereunder, upon advice of counsel selected by the Administrative Agent.




          12.06. Indemnification. To the extent the Administrative Agent (or any Affiliate thereof) is not reimbursed and
indemnified by the Borrower, the Lenders will reimburse and indemnify the Administrative Agent (and
any Affiliate thereof) in proportion to their respective “percentage” as used in determining the
Required Lenders (determined as if there were no Defaulting Lenders) for and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses
or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred
by the Administrative Agent (or any Affiliate thereof) in performing its duties hereunder or under
any other Credit Document or in any way relating to or arising out of this Agreement or any other
Credit Document; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent’s (or such Affiliate’s) gross
negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and
non-appealable decision). Each Revolving Participant agrees to indemnify the Fronting Lender, in
its capacity as such (to the extent not reimbursed by the Borrower and without limiting the
obligations of the Borrower to do so), for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits costs, expenses or disbursements of any kind whatsoever that
may at any time (including at any time following the payment of the Loans) be imposed on or
incurred by or asserted against the Fronting Lender in its capacity as such; provided that
no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the
Fronting Lender’s gross negligence or willful misconduct of the Fronting Lender as determined by a
final judgment of a court of competent jurisdiction.




          12.07. The Administrative Agent in Its Individual Capacity. With respect to its obligation to make Loans, or issue or participate in Letters of Credit,
under this Agreement, the Administrative Agent shall have the rights and powers specified herein
for a “Lender” and may exercise the same rights and powers as though it were not performing the
duties specified herein; and the term “Lender,” “Required Lenders,” “Holders of Notes” or any
similar terms shall, unless the context clearly indicates otherwise, include the Administrative
Agent in its respective individual capacities. The Administrative Agent and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of banking, investment
banking, trust or other business with, or provide debt financing, equity capital or other services
(including financial advisory services) to any Credit Party or any Affiliate of any Credit Party
(or any Person engaged in a similar business with any Credit Party or any Affiliate thereof) as if
they were not performing the duties specified herein, and may accept fees and other consideration
from any Credit Party or any Affiliate of any Credit Party for services in connection with this
Agreement and otherwise without having to account for the same to the Lenders.




          12.08. Holders.




          (a) The Administrative Agent may deem and treat the payee of any Note as the owner thereof for
all purposes hereof unless and until a written notice of the assignment, transfer or


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endorsement thereof, as the case may be, shall have been filed with the Administrative Agent.
Any request, authority or consent of any Person who, at the time of making such request or giving
such authority or consent, is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee, assignee or endorsee, as the case may be, of such Note or of any
Note or Notes issued in exchange therefor.




          (b) Without limiting the provisions of preceding clause (a), the parties hereto acknowledge
and agree that any Agent hereunder may also act in individual or agency capacities in connection
with other financings, including, without limitation, pursuant to the Term Credit Documents. The
parties hereto agree to each of the Agents acting in such other individual and agency capacities,
and shall not raise any claim in connection therewith (except to the extent resulting from the
gross negligence or willful misconduct of the respective such Person as an Agent hereunder).




          12.09. Resignation by the Administrative Agent.




          (a) The Administrative Agent may resign from the performance of all its respective functions
and duties hereunder and/or under the other Credit Documents at any time by giving 15 Business
Days’ prior written notice to the Lenders and, unless a Default or an Event of Default under
Section 11.05 then exists, the Borrower. Any such resignation by an Administrative Agent hereunder
shall also constitute its resignation as an Issuing Lender and the Swingline Lender, in which case
the resigning Administrative Agent (x) shall not be required to issue any further Letters of Credit
or make any additional Swingline Loans hereunder and (y) shall maintain all of its rights as
Issuing Lender or Swingline Lender, as the case may be, with respect to any Letters of Credit
issued by it, or Swingline Loans made by it, prior to the date of such resignation. Such
resignation shall take effect upon the appointment of a successor Administrative Agent pursuant to
clauses (b) and (c) below or as otherwise provided below.




          (b) Upon any such notice of resignation by the Administrative Agent, the Required Lenders
shall appoint a successor Administrative Agent hereunder or thereunder who shall be a commercial
bank or trust company reasonably acceptable to the Borrower, which acceptance shall not be
unreasonably withheld or delayed (provided that the Borrower’s approval shall not be
required if an Event of Default then exists).




          (c) If a successor Administrative Agent shall not have been so appointed within such 15
Business Day period, the Administrative Agent, with the consent of the Borrower (which consent
shall not be unreasonably withheld or delayed, provided that the Borrower’s consent shall
not be required if an Event of Default then exists), shall then appoint a successor Administrative
Agent who shall serve as Administrative Agent hereunder or thereunder until such time, if any, as
the Required Lenders appoint a successor Administrative Agent as provided above.




          (d) If no successor Administrative Agent has been appointed pursuant to clause (b) or (c)
above by the 20th Business Day after the date such notice of resignation was given by the
Administrative Agent, the Administrative Agent’s resignation shall become effective and the
Required Lenders shall thereafter perform all the duties of the Administrative Agent hereunder
and/or under any other Credit Document until such time, if any, as the Required Lenders appoint a
successor Administrative Agent as provided above.




          (e) Upon a resignation of the Administrative Agent pursuant to this Section 12.09, the
Administrative Agent shall remain indemnified to the extent provided in this Agreement and the
other Credit Documents and the provisions of this Section 12 (and the analogous provisions of the
other Credit


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Documents) shall continue in effect for the benefit of the Administrative Agent for all of its
actions and inactions while serving as the Administrative Agent.




          12.10. Collateral Matters.




          (a) Each Lender authorizes and directs the Collateral Agent to enter into the Security
Documents and the Intercreditor Agreement. Each Lender hereby agrees, and each holder of any Note
by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any
action taken by the Required Lenders in accordance with the provisions of this Agreement or the
Security Documents, and the exercise by the Required Lenders of the powers set forth herein or
therein, together with such other powers as are reasonably incidental thereto, shall be authorized
and binding upon all of the Lenders. The Collateral Agent is hereby authorized on behalf of all of
the Lenders, without the necessity of any notice to or further consent from any Lender, from time
to time prior to an Event of Default, to take any action with respect to any Collateral or Security
Documents which may be necessary to perfect and maintain perfected the security interest in and
liens upon the Collateral granted pursuant to the Security Documents.




          (b) The Lenders hereby authorize the Collateral Agent, at its option and in its discretion, to
release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon
termination of the Revolving Loan Commitments (and all Letters of Credit) and payment and
satisfaction of all of the Obligations (other than inchoate indemnification obligations) at any
time arising under or in respect of this Agreement or the Credit Documents or the transactions
contemplated hereby or thereby, (ii) constituting property being sold or otherwise disposed of (to
Persons other than the Borrower and its Subsidiaries) upon the sale or other disposition thereof in
compliance with Section 10.02, (iii) if approved, authorized or ratified in writing by the Required
Lenders (or all of the Lenders hereunder, to the extent required by Section 13.12), (iv) as
otherwise may be expressly provided in the relevant Security Documents. Upon request by the
Administrative Agent at any time, the Lenders will confirm in writing the Collateral Agent’s
authority to release particular types or items of Collateral pursuant to this Section 12.10 or (v)
constituting Equity Interests or assets of any Subsidiary of the Borrower upon the liquidation or
dissolution of such Subsidiary in a transaction permitted by the Credit Documents.




          (c) The Collateral Agent shall have no obligation whatsoever to the Lenders or to any other
Person to assure that the Collateral exists or is owned by any Credit Party or is cared for,
protected or insured or that the Liens granted to the Collateral Agent herein or pursuant hereto
have been properly or sufficiently or lawfully created, perfected, protected or enforced or are
entitled to any particular priority, or to exercise or to continue exercising at all or in any
manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers
granted or available to the Collateral Agent in this Section 12.10 or in any of the Security
Documents, it being understood and agreed that in respect of the Collateral, or any act, omission
or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in
its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the
Lenders and that the Collateral Agent shall have no duty or liability whatsoever to the Lenders,
except for its gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).




          12.11. Delivery of Information. The Administrative Agent shall not be required to deliver to any Lender originals or copies
of any documents, instruments, notices, communications or other information received by the
Administrative Agent from any Credit Party, any Subsidiary, the Required Lenders, any Lender or any
other Person under or in connection with this Agreement or any other Credit Document except (i) as
specifically provided in this Agreement or any other Credit Document and (ii) as specifically
requested from time to time in writing by any Lender with respect to a






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specific document, instrument, notice or other written communication received by and in the
possession of the Administrative Agent at the time of receipt of such request and then only in
accordance with such specific request.




          12.12. Withholding Tax. To the extent required by any applicable law, the Administrative Agent and any Fronting
Lender shall withhold from any payment to any Lender an amount equivalent to any applicable
withholding tax. If the Internal Revenue Service or any other authority of the United States or
other jurisdiction asserts a claim that the Administrative Agent or the Fronting Lender did not
properly withhold tax from amounts paid to or for the account of any Lender for any reason
(including, without limitation, because the appropriate form was not delivered or not properly
executed, or because such Lender failed to notify the Administrative Agent or the Fronting Lender
of a change in circumstance that rendered the exemption from, or reduction of, withholding tax
ineffective), such Lender shall indemnify and hold harmless the Administrative Agent and the
Fronting Lender (to the extent that the Administrative Agent or the Fronting Lender has not already
been reimbursed by the Borrower and without limiting the obligation of the Borrower to do so) for
all amounts paid, directly or indirectly, by the Administrative Agent or the Fronting Lender as tax
or otherwise, including any interest, additions to tax or penalties thereto, together with all
expenses incurred, including legal expenses and any other out-of-pocket expenses, whether or not
such tax were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to any Lender by the
Administrative Agent or Fronting Lender shall be conclusive absent manifest error.




          SECTION 13. Miscellaneous.




          13.01. Payment of Expenses, etc. The Borrower hereby agrees to: (i) whether or not the transactions herein contemplated are
consummated, pay all reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and disbursements of Cahill Gordon & Reindel
llp and local and foreign counsel and the Administrative Agent’s other counsel
and consultants) in connection with the preparation, execution, delivery and administration of this
Agreement and the other Credit Documents and the documents and instruments referred to herein and
therein and any amendment, waiver or consent relating hereto or thereto, of the Administrative
Agent and its Affiliates in connection with its or their syndication efforts with respect to this
Agreement and of the Administrative Agent and, after the occurrence of an Event of Default, each of
the Issuing Lenders and Lenders in connection with the enforcement of this Agreement and the other
Credit Documents and the documents and instruments referred to herein and therein or in connection
with any refinancing or restructuring of the credit arrangements provided under this Agreement in
the nature of a “work-out” or pursuant to any insolvency or bankruptcy proceedings (including, in
each case without limitation, the reasonable fees and disbursements of counsel and consultants
(including, without limitation, any inventory consultants) for the Administrative Agent and, after
the occurrence of an Event of Default, counsel for each of the Issuing Lenders and Lenders); (ii)
pay and hold the Administrative Agent, each of the Issuing Lenders and each of the Lenders harmless
from and against any and all present and future stamp, excise and other similar documentary taxes
with respect to the foregoing matters and save the Administrative Agent, each of the Issuing
Lenders and each of the Lenders harmless from and against any and all liabilities with respect to
or resulting from any delay or omission (other than to the extent attributable to the
Administrative Agent, such Issuing Lender or such Lender) to pay such taxes; and (iii) indemnify
the Administrative Agent, each Issuing Lender and each Lender, and each of their respective
officers, directors, employees, representatives, advisors, agents, affiliates, trustees and
investment advisors from and hold each of them harmless against any and all liabilities,
obligations (including removal or remedial actions), losses, damages, penalties, claims, actions,
judgments, suits, costs, expenses and disbursements (including reasonable attorneys’ and
consultants’ fees and disbursements) incurred by, imposed on or assessed against any of them as a
result of, or arising out of, or






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in any way related to, or by reason of, (a) any investigation, litigation or other proceeding
(whether or not the Administrative Agent, any Issuing Lender or any Lender is a party thereto and
whether or not such investigation, litigation or other proceeding is brought by or on behalf of any
Credit Party) related to the entering into and/or performance of this Agreement or any other Credit
Document or the use of any Letter of Credit or the proceeds of any Loans hereunder or the
consummation of any other transactions contemplated herein or in any other Credit Document or the
exercise of any of their rights or remedies provided herein or in the other Credit Documents, or
(b) the actual or alleged presence of Hazardous Materials in the air, surface water or groundwater
or on the surface or subsurface of any Real Property at any time owned, leased or operated by the
Borrower or any of its Subsidiaries, the generation, storage, transportation, handling or disposal
of Hazardous Materials by the Borrower or any of its Subsidiaries at any location, whether or not
owned, leased or operated by the Borrower or any of its Subsidiaries, the non-compliance by the
Borrower or any of its Subsidiaries with any Environmental Law (including applicable permits
thereunder) applicable to any Real Property, or any Environmental Claim asserted against the
Borrower, any of its Subsidiaries or any Real Property at any time owned, leased or operated by the
Borrower or any of its Subsidiaries, including, in each case, without limitation, the reasonable
fees and disbursements of counsel and other consultants incurred in connection with any such
investigation, litigation or other proceeding (but excluding any losses, liabilities, claims,
damages or expenses to the extent incurred by reason of the gross negligence or willful misconduct
of the Person to be indemnified (as determined by a court of competent jurisdiction in a final and
non-appealable decision)). To the extent that the undertaking to indemnify, pay or hold harmless
the Administrative Agent, any Issuing Lender or any Lender set forth in the preceding sentence may
be unenforceable because it is violative of any law or public policy, the Borrower shall make the
maximum contribution to the payment and satisfaction of each of the indemnified liabilities which
is permissible under applicable law.




          13.02. Right of Setoff.




          (a) In addition to any rights now or hereafter granted under applicable law or otherwise, and
not by way of limitation of any such rights, upon the occurrence and during the continuance of an
Event of Default, the Administrative Agent, each Issuing Lender and each Lender is hereby
authorized at any time or from time to time, without presentment, demand, protest or other notice
of any kind to any Credit Party or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits (general or special) and any
other Indebtedness at any time held or owing by the Administrative Agent, such Issuing Lender or
such Lender (including, without limitation, by branches and agencies of the Administrative Agent,
such Issuing Lender or such Lender wherever located) to or for the credit or the account of the
Borrower or any of its Subsidiaries against and on account of the Obligations and liabilities of
the Credit Parties to the Administrative Agent, such Issuing Lender or such Lender under this
Agreement or under any of the other Credit Documents, including, without limitation, all interests
in Obligations purchased by such Lender pursuant to Section 13.04(b), and all other claims of any
nature or description arising out of or connected with this Agreement or any other Credit Document,
irrespective of whether or not the Administrative Agent, such Issuing Lender or such Lender shall
have made any demand hereunder and although said Obligations, liabilities or claims, or any of
them, shall be contingent or unmatured.




          (b) NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY TIME THAT THE LOANS OR ANY OTHER
OBLIGATION SHALL BE SECURED BY REAL PROPERTY LOCATED IN CALIFORNIA, NO LENDER SHALL EXERCISE A
RIGHT OF SETOFF, LIEN OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY
PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE UNLESS IT IS TAKEN WITH THE
CONSENT OF THE REQUIRED LENDERS OR APPROVED IN WRITING BY THE ADMINISTRATIVE AGENT, IF SUCH SETOFF
OR ACTION


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OR PROCEEDING WOULD OR MIGHT (PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 580a,
580b, 580d AND 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION 2924 OF THE CALIFORNIA
CIVIL CODE, IF APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE VALIDITY, PRIORITY OR ENFORCEABILITY
OF THE LIENS GRANTED TO THE COLLATERAL AGENT PURSUANT TO THE SECURITY DOCUMENTS OR THE
ENFORCEABILITY OF THE NOTES AND OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY
LENDER OF ANY SUCH RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE REQUIRED LENDERS OR THE
ADMINISTRATIVE AGENT SHALL BE NULL AND VOID. THIS SUBSECTION (b) SHALL BE SOLELY FOR THE BENEFIT
OF EACH OF THE LENDERS AND THE ADMINISTRATIVE AGENT HEREUNDER.




          13.03. Notices. Except as otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopier or cable
communication) and mailed, telegraphed, telecopied, cabled or delivered: if to any Credit Party,
at the address specified opposite its signature below or in the other relevant Credit Documents; if
to any Lender, at its address specified on Schedule II; and if to the Administrative Agent, at the
Notice Office; or, as to any Credit Party or the Administrative Agent, at such other address as
shall be designated by such party in a written notice to the other parties hereto and, as to each
Lender, at such other address as shall be designated by such Lender in a written notice to the
Borrower and the Administrative Agent. All such notices and communications shall, when mailed,
telegraphed, telecopied, or cabled or sent by overnight courier, be effective when deposited in the
mails, delivered to the telegraph company, cable company or overnight courier, as the case may be,
or sent by telecopier, except that notices and communications to the Administrative Agent and the
Borrower shall not be effective until received by the Administrative Agent or the Borrower, as the
case may be.




          13.04. Benefit of Agreement; Assignments; Participations.




          (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto; provided, however, the
Borrower may not assign or transfer any of its rights, obligations or interest hereunder without
the prior written consent of the Lenders and, provided further, that, although any
Lender may transfer, assign or grant participations in its rights hereunder, such Lender shall
remain a “Lender” for all purposes hereunder (and may not transfer or assign all or any portion of
its Revolving Loan Commitments hereunder except as provided in Sections 2.13 and 13.04(b)) and the
transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder
and, provided, further, that no Lender shall transfer or grant any participation
under which the participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or waiver would (i)
extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless such Letter of
Credit is not extended beyond the Revolving Loan Maturity Date) in which such participant is
participating, or reduce the rate or extend the time of payment of interest or Fees thereon (except
in connection with a waiver of applicability of any post-default increase in interest rates) or
reduce the principal amount thereof (it being understood that any amendment or modification to the
financial definitions in this Agreement or to Section 13.07(a) shall not constitute a reduction in
the rate of interest or Fees payable hereunder), or increase the amount of the participant’s
participation over the amount thereof then in effect (it being understood that a waiver of any
Default or Event of Default or of a mandatory reduction in the Total Commitment shall not
constitute a change in the terms of such participation, and that an increase in any Revolving Loan
Commitment (or the available portion thereof) or Loan shall be permitted without the consent of any
participant if the participant’s participation is not increased as a result thereof), (ii) consent
to the assignment or transfer by the Borrower of any of its rights


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and obligations under this Agreement or (iii) release all or substantially all of the
Collateral under all of the Security Documents (except as expressly provided in the Credit
Documents) supporting the Loans or Letters of Credit hereunder in which such participant is
participating. In the case of any such participation, the participant shall not have any rights
under this Agreement or any of the other Credit Documents (the participant’s rights against such
Lender in respect of such participation to be those set forth in the agreement executed by such
Lender in favor of the participant relating thereto) and all amounts payable by the Borrower
hereunder shall be determined as if such Lender had not sold such participation.




          (b) Notwithstanding the foregoing, any Lender (or any Lender together with one or more other
Lenders) may (x) assign all or a portion of its Revolving Loan Commitments and related outstanding
Obligations (or, if the Revolving Loan Commitments have terminated, outstanding Obligations)
hereunder to (i)(A) its parent company and/or any affiliate of such Lender which is at least 50%
owned by such Lender or its parent company or (B) to one or more other Lenders or any affiliate of
any such other Lender which is at least 50% owned by such other Lender or its parent company
(provided that any fund that invests in loans and is managed or advised by the same
investment advisor of another fund which is a Lender (or by an Affiliate of such investment
advisor) shall be treated as an affiliate of such other Lender for the purposes of this sub-clause
(x)(i)(B)), or (ii) in the case of any Lender that is a fund that invests in loans, any other fund
that invests in loans and is managed or advised by the same investment advisor of any Lender or by
an Affiliate of such investment advisor or (y) assign all, or if less than all, a portion
equal to at least $10,000,000 in the aggregate for the assigning Lender or assigning Lenders, of
such Revolving Loan Commitments and related outstanding Obligations (or, if the Revolving Loan
Commitments have terminated, outstanding Obligations) hereunder to one or more Eligible Transferees
(treating any fund that invests in loans and any other fund that invests in loans and is managed or
advised by the same investment advisor of such fund or by an Affiliate of such investment advisor
as a single Eligible Transferee), each of which assignees shall become a party to this Agreement as
a Lender by execution of an Assignment and Assumption Agreement, provided that (i) at such
time, Schedule I shall be deemed modified to reflect the Revolving Loan Commitments and/or
outstanding Loans, as the case may be, of such new Lender and of the existing Lenders, (ii) upon
the surrender of the relevant Notes by the assigning Lender (or, upon such assigning Lender’s
indemnifying the Borrower for any lost Note pursuant to a customary indemnification agreement) new
Notes will be issued, at the Borrower’s expense, to such new Lender and to the assigning Lender
upon the request of such new Lender or assigning Lender, such new Notes to be in conformity with
the requirements of Section 2.05 (with appropriate modifications) to the extent needed to reflect
the revised Revolving Loan Commitments and/or outstanding Loans, as the case may be, (iii) the
consent of the Administrative Agent and the Issuing Lender and, so long as no Default or Event of
Default then exists, the Borrower, shall be required in connection with any such assignment
pursuant to clause (y) above (such consent, in any case, not to be unreasonably withheld, delayed
or conditioned), (iv) the Administrative Agent shall receive at the time of each such assignment,
from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500 and
(v) no such transfer or assignment will be effective until recorded by the Administrative Agent on
the Register pursuant to Section 13.15. To the extent of any assignment pursuant to this Section
13.04(b), the assigning Lender shall be relieved of its obligations hereunder with respect to its
assigned Revolving Loan Commitments and outstanding Loans. At the time of each assignment pursuant
to this Section 13.04(b) to a Person which is not already a Lender hereunder and which is not a
United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal
income tax purposes, the respective assignee Lender shall, to the extent legally entitled to do so,
provide to the Borrower the appropriate Internal Revenue Service Forms (and, if applicable, a
Section 5.04(b)(ii) Certificate) described in Section 5.04(b). To the extent that an assignment of
all or any portion of a Lender’s Revolving Loan Commitments and related outstanding Obligations
pursuant to Section 2.13 or this Section 13.04(b) would, at the time of such assignment, result in
increased costs


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under Section 2.10, 3.06 or 5.04 from those being charged by the respective assigning Lender prior to such
assignment, then the Borrower shall not be obligated to pay such increased costs (although the
Borrower, in accordance with and pursuant to the other provisions of this Agreement, shall be
obligated to pay any other increased costs of the type described above resulting from changes after
the date of the respective assignment).




          (c) Nothing in this Agreement shall prevent or prohibit any Lender from pledging its Loans and
Notes hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such
Federal Reserve Bank and, with prior notification to the Administrative Agent (but without the
consent of the Administrative Agent or the Borrower), any Lender which is a fund may pledge all or
any portion of its Loans and Notes to its trustee or to a collateral agent providing credit or
credit support to such Lender in support of its obligations to such trustee, such collateral agent
or a holder of such obligations, as the case may be. No pledge pursuant to this clause (c) shall
release the transferor Lender from any of its obligations hereunder or substitute (by foreclosure
or otherwise) any such pledgee or assignee for such Lender as a party thereto.




          (d) Any Lender which assigns all of its Revolving Loan Commitments and/or Loans hereunder in
accordance with Section 13.04(b) shall cease to constitute a “Lender” hereunder, except with
respect to indemnification provisions under this Agreement (including, without limitation, Sections
2.10, 2.11, 3.06, 5.04, 12.06, 13.01 and 13.06), which shall survive as to such assigning Lender.




          13.05. No Waiver; Remedies Cumulative. No failure or delay on the part of the Administrative Agent, the Collateral Agent, any
Issuing Lender or any Lender in exercising any right, power or privilege hereunder or under any
other Credit Document and no course of dealing between the Borrower or any other Credit Party and
the Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder
or under any other Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights, powers and remedies
herein or in any other Credit Document expressly provided are cumulative and not exclusive of any
rights, powers or remedies which the Administrative Agent, the Collateral Agent, any Issuing Lender
or any Lender would otherwise have. No notice to or demand on any Credit Party in any case shall
entitle any Credit Party to any other or further notice or demand in similar or other circumstances
or constitute a waiver of the rights of the Administrative Agent, the Collateral Agent, any Issuing
Lender or any Lender to any other or further action in any circumstances without notice or demand.




          13.06. Payments Pro Rata.




          (a) Except as otherwise provided in this Agreement, the Administrative Agent agrees that
promptly after its receipt of each payment from or on behalf of the Borrower in respect of the
Obligations hereunder, the Administrative Agent shall distribute such payment to the Lenders
entitled thereto (including to the Fronting Lender (rather than to the Revolving Participants) with
respect to the Revolving Loans made by such Lender and other than any Lender that has consented in
writing to waive its pro rata share of any such payment) pro rata
based upon their respective shares, if any, of the Obligations with respect to which such payment
was received.




          (b) Each of the Lenders agrees that, if it should receive any amount hereunder (whether by
voluntary payment, by realization upon security, by the exercise of the right of setoff or banker’s
lien, by counterclaim or cross action, by the enforcement of any right under the Credit Documents,
or otherwise), which is applicable to the payment of the principal of, or interest on, the Loans,
Unpaid Drawings, Commitment Commission or Letter of Credit Fees, of a sum which with respect


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to the related sum or sums received by other Lenders is in a greater proportion than the total
of such Obligation then owed and due to such Lender bears to the total of such Obligation then owed
and due to all of the Lenders immediately prior to such receipt, then such Lender receiving such
excess payment shall purchase for cash without recourse or warranty from the other Lenders a
Participating Interest in the Obligations of the respective Credit Party to such Lenders in such
amount as shall result in a proportional participation by all the Lenders in such amount;
provided that if all or any portion of such excess amount is thereafter recovered from such
Lenders, such purchase shall be rescinded and the purchase price restored to the extent of such
recovery, but without interest.




          (c) Notwithstanding anything to the contrary contained herein, the provisions of the preceding
Sections 13.06(a) and (b) shall be subject to the express provisions of this Agreement which
require, or permit, differing payments to be made to Non-Defaulting Lenders as opposed to
Defaulting Lenders.




          13.07. Calculations; Computations.




          (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and
prepared in accordance with U.S. GAAP consistently applied throughout the periods involved (except
as set forth in the notes thereto or as otherwise disclosed in writing by the Borrower to the
Lenders), provided that (i) if at any time any change in U.S. GAAP is reasonably likely to
cause any financial ratio or requirement set forth in any Credit Document to be violated or to
impose additional obligations on the Borrower, or to prevent any such violation or any such
imposition absent such change, and either the Borrower or the Required Lenders shall so request,
the Administrative Agent and the Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in U.S. GAAP (subject
to the approval of the Required Lenders); provided that, until so amended, (x) such
ratio or requirement shall continue to be computed in accordance with U.S. GAAP prior to such
change therein (and, for the avoidance of doubt, if such notice is provided following the last day
of a Test Period but prior to the date the officer’s certificate required pursuant to Section
9.01(e) has been delivered for such Test Period, such notice shall be deemed to have been received
on the last day of such Test Period) and (y) the Borrower shall provide to the Administrative Agent
and the Lenders financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in U.S. GAAP, (ii) to the extent
expressly required pursuant to the provisions of this Agreement, certain calculations shall be made
on a Pro Forma Basis and (iii) for purposes of determining compliance with any
incurrence or expenditure tests set forth in Sections 9 and/or 10, any amounts so incurred or
expended (to the extent incurred or expended in a currency other than Dollars) shall be converted
into Dollars on the basis of the exchange rates (as shown on Reuters ECB page 37 or, if same does
not provide such exchange rates, on such other basis as is reasonably satisfactory to the
Administrative Agent) as in effect on the date of such incurrence or expenditure under any
provision of any such Section that has an aggregate Dollar limitation provided for therein (and to
the extent the respective incurrence or expenditure test regulates the aggregate amount outstanding
at any time and it is expressed in terms of Dollars, all outstanding amounts originally incurred or
spent in currencies other than Dollars shall be converted into Dollars on the basis of the exchange
rates (as shown on Reuters ECB page 37 or, if same does not provide such exchange rates, on such
other basis as is reasonably satisfactory to the Administrative Agent) as in effect on the date of
any new incurrence or expenditures made under any provision of any such Section that regulates the
Dollar amount outstanding at any time).




          (b) All computations of interest, Commitment Commission and other Fees hereunder shall be made
on the basis of a year of 360 days (except for interest calculated by reference to (x) the


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Prime Lending Rate, which shall be based on a year of 365 or 366 days, as applicable and (y)
Sterling LIBOR, which shall be based on a year of 365 days) for the actual number of days
(including the first day but excluding the last day; except that in the case of Letter of Credit
Fees and Facing Fees, the last day shall be included) occurring in the period for which such
interest, Commitment Commission or Fees are payable.




          13.08. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.




          (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE PROVIDED IN ANY MORTGAGE, BE CONSTRUED
IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES). ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR
THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND,
BY EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, THE BORROWER HEREBY
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. THE BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM
THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER THE BORROWER, AND AGREES NOT TO PLEAD OR
CLAIM, IN ANY LEGAL ACTION PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL JURISDICTION OVER THE
BORROWER. THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS SET FORTH OPPOSITE
ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. THE BORROWER
HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES
AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER
CREDIT DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE BORROWER IN ANY OTHER JURISDICTION.




          (b) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a)
ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT
ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.







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          (c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.




          13.09. Counterparts. This Agreement may be executed in any number of counterparts and by the different parties
hereto on separate counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the Administrative Agent.




          13.10. Effectiveness. This Agreement shall become effective on the date (the “Effective Date”) on which
the Borrower, the Administrative Agent, the Lead Arranger and each of the Lenders shall have signed
a counterpart hereof (whether the same or different counterparts) and shall have delivered the same
to the Administrative Agent at the Notice Office or, in the case of the Lenders, shall have given
to the Administrative Agent telephonic (confirmed in writing), written or telex notice (actually
received) at such office that the same has been signed and mailed to it. The Administrative Agent
will give the Borrower and each Lender prompt written notice of the occurrence of the Effective
Date.




          13.11. Headings Descriptive. The headings of the several Sections and subsections of this Agreement are inserted for
convenience only and shall not in any way affect the meaning or construction of any provision of
this Agreement.




          13.12. Amendment or Waiver; etc.




          (a) Neither this Agreement nor any other Credit Document nor any terms hereof or thereof may
be changed, waived, discharged or terminated unless such change, waiver, discharge or termination
is in writing signed by the respective Credit Parties party hereto or thereto and the Required
Lenders (although additional parties may be added to (and annexes may be modified to reflect such
additions), and Subsidiaries of the Borrower may be released from, the Subsidiaries Guaranty and
the Security Documents in accordance with the provisions hereof and thereof without the consent of
the other Credit Parties party thereto or the Required Lenders), provided that no such
change, waiver, discharge or termination shall, without the consent of each Lender (other than a
Defaulting Lender) (with Obligations being directly affected in the case of following clause (i),
clause (ix) or clause (x)), (i) extend the final scheduled maturity of any Loan or Note or extend
the stated expiration date of any Letter of Credit beyond the Revolving Loan Maturity Date, or
reduce the rate or extend the time of payment of interest or Fees thereon (except in connection
with the waiver of applicability of any post-default increase in interest rates), or reduce (or
forgive) the principal amount thereof (it being understood that any amendment or modification to
the financial definitions in this Agreement or to Section 13.07(a) shall not constitute a reduction
in the rate of interest or Fees for the purposes of this clause (i)), (ii) release all or
substantially all of (x) the Collateral (except as expressly provided in the Credit Documents)
under all the Security Documents or (y) the Subsidiary Guarantors under the Subsidiaries
Guaranties, (iii) amend, modify or waive any provision of this Section 13.12(a) (except for
technical amendments with respect to additional extensions of credit pursuant to this Agreement
which afford the protections to such additional extensions of credit of the type provided to the
Revolving Loan Commitments on the Effective Date), (iv) reduce the “majority” voting threshold
specified in the definition of Required Lenders (it being understood that, with the consent of the
Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the
determination of the Required Lenders on substantially the same basis as the extensions of
Revolving Loan Commitments are included on the Amendment No. 3 Effective Date), (v) consent to the
assignment or transfer by the Borrower of any of its rights and obligations under this Agreement,
(vi)


-120-









 







increase the advance rates applicable to the Borrowing Base over those in effect on the
Initial Borrowing Date (it being understood that the establishment, modification or elimination of
Reserves and adjustment, establishment and elimination of criteria for Eligible Accounts and
Eligible Inventory, in each case by Administrative Agent in accordance with the terms hereof, will
not be deemed such an increase in advance rates), (vii) increase the percentage of the Borrowing
Base for which Agent Advances may be made pursuant to Section 2.01(e), (viii) increase the Total
Commitment (other than as contemplated by Section 2.14), (ix) or increase the Revolving Loan
Commitment of any Lender, (x) change any provision of any Loan Document with respect to the order
of payment of the Obligations following an Event of Default, including, without limitation, Section
7.4 of the Security Agreement or
 (xi) subordinate all or substantially all of the ABL Priority
Collateral to any other Indebtedness; provided further, that no such change,
waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend
the definition of Supermajority Lenders, (x) amend the definition of Borrowing Availability or (y)
amend any of the following definitions, in each case the effect of which would be to increase the
amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts, Eligible Inventory
(including, in each case, the defined terms used therein) (it being understood that the
establishment, modification or elimination of Reserves and adjustment, establishment and
elimination of criteria for Eligible Accounts and Eligible Inventory, in each case by the
Administrative Agents in accordance with the terms hereof, will not be deemed to require a
Supermajority Lender consent), provided further, that no such change, waiver,
discharge or termination shall (1) without the consent of each Issuing Lender, amend, modify or
waive any provision of Section 1 or alter its rights or obligations with respect to Letters of
Credit, (2) without the consent of the Swingline Lender, alter the Swingline Lender’s rights or
obligations with respect to Swingline Loans, (3) without the consent of the Administrative Agent,
amend, modify or waive any provision of Section 12 or any other provision as same relates to the
rights or obligations of the Administrative Agent, or (4) without the consent of Collateral Agent,
amend, modify or waive any provision relating to the rights or obligations of the Collateral Agent.




          (b) If, in connection with any proposed change, waiver, discharge or termination of or to any
of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the
first proviso to Section 13.12(a), the consent of the Required Lenders is obtained but the consent
of one or more of such other Lenders whose consent is required is not obtained, then the Borrower
shall have the right, so long as all non-consenting Lenders whose individual consent is required
are treated as described in either clause (A) or (B) below, to either (A) replace each such
non-consenting Lender or Lenders (or, at the option of the Borrower, if the respective Lender’s
consent is required with respect to less than all Loans (or related Revolving Loan
Commitments), to replace only the Revolving Loan Commitments and/or Loans of the respective
non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent) with
one or more Replacement Lenders pursuant to Section 2.13 so long as at the time of such
replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or
termination or (B) terminate such non-consenting Lender’s Revolving Loan Commitment (if such
Lender’s consent is required as a result of its Revolving Loan Commitment) the outstanding Loans of
such Lender which gave rise to the need to obtain such Lender’s consent and/or cash collateralize
its applicable RL Percentage of the Letter of Credit of Outstandings, in accordance with Sections
4.02(b) and/or 5.01(b), provided that, unless the Revolving Loan Commitments which are
terminated and Loans which are repaid pursuant to preceding clause (B) are immediately replaced in
full at such time through the addition of new Lenders or the increase of the Revolving Loan
Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically
consent thereto), then in the case of any action pursuant to preceding clause (B), the Required
Lenders (determined after giving effect to the proposed action) shall specifically consent thereto,
provided, further, that the Borrower shall not have the right to replace a Lender,
terminate its Revolving Loan Commitment or repay its Loans solely as a result of the exercise of
such Lender’s rights (and the withholding of any required consent by such Lender) pursuant to the
second proviso to Section 13.12(a).







-121-









 








          13.13. Survival. All indemnities set forth herein including, without limitation, in Sections 2.10, 2.11,
3.06, 5.04, 12.06 and 13.01 shall survive the execution, delivery and termination of this Agreement
and the Notes and the making and repayment of the Obligations.




          13.14. Domicile of Loans. Each Lender may transfer and carry its Loans at, to or for the account of any office,
Subsidiary or Affiliate of such Lender. Notwithstanding anything to the contrary contained herein,
to the extent that a transfer of Loans pursuant to this Section 13.14 would, at the time of such
transfer, result in increased costs under Section 2.10, 2.11, 3.06 or 5.04 from those being charged
by the respective Lender prior to such transfer, then the Borrower shall not be obligated to pay
such increased costs (although the Borrower shall be obligated to pay any other increased costs of
the type described above resulting from changes after the date of the respective transfer).




          13.15. Register. The Borrower hereby designates the Administrative Agent to serve as its agent, solely for
purposes of this Section 13.15, to maintain a register (the “Register”) on which it will
record the Revolving Loan Commitments from time to time of each of the Lenders, the Loans made by
each of the Lenders and each repayment in respect of the principal amount of the Loans of each
Lender. Failure to make any such recordation, or any error in such recordation, shall not affect
the Borrower’s obligations in respect of such Loans. With respect to any Lender, the transfer of
the Revolving Loan Commitments of such Lender and the rights to the principal of, and interest on,
any Loan made pursuant to such Revolving Loan Commitments shall not be effective until such
transfer is recorded on the Register maintained by the Administrative Agent with respect to
ownership of such Revolving Loan Commitments and Loans and prior to such recordation all amounts
owing to the transferor with respect to such Revolving Loan Commitments and Loans shall remain
owing to the transferor. The registration of assignment or Revolving Loan transfer of all or part
of any Revolving Loan Commitments and Loans shall be recorded by the Administrative Agent on the
Register only upon the acceptance by the Administrative Agent of a properly executed and delivered
Assignment and Assumption Agreement pursuant to Section 13.04(b). Coincident with the delivery of
such an Assignment and Assumption Agreement to the Administrative Agent for acceptance and
registration of assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Lender shall surrender the Note (if any) evidencing such
Loan, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to
the assigning or transferor Lender and/or the new Lender at the request of any such Lender. The
Borrower agrees to indemnify the Administrative Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be imposed on, asserted against or incurred
by the Administrative Agent in performing its duties under this Section 13.15.




          13.16. Confidentiality.




          (a) Subject to the provisions of clause (b) of this Section 13.16, each Lender agrees that it
will use its reasonable efforts not to disclose without the prior consent of the Borrower (other
than to its employees, auditors, advisors or counsel or to another Lender if such Lender or such
Lender’s holding or parent company in its sole discretion determines that any such party should
have access to such information, provided such Persons shall be subject to the provisions
of this Section 13.16 to the same extent as such Lender) any information with respect to the
Borrower or any of its Subsidiaries which is now or in the future furnished pursuant to this
Agreement or any other Credit Document, provided that any Lender may disclose any such
information (i) as has become generally available to the public other than by virtue of a breach of
this Section 13.16(a) by the respective Lender, (ii) as may be required or appropriate in any
report, statement or testimony submitted to any municipal, state or Federal regulatory body having
or claiming to have jurisdiction over such Lender or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or similar organizations (whether in the United States or elsewhere)
or their successors, (iii) as may be required or appropriate in respect to any summons or


-122-









 







subpoena or in connection with any litigation, (iv) in order to comply with any law, order,
regulation or ruling applicable to such Lender, (v) to the Administrative Agent or the Collateral
Agent, (vi) to any direct or indirect contractual counterparty in any swap, hedge or similar
agreement (or to any such contractual counterparty’s professional advisor), so long as such
contractual counterparty (or such professional advisor) agrees to be bound by the provisions of
this Section 13.16 and (vii) to any prospective or actual transferee or participant in connection
with any contemplated transfer or participation of any of the Notes or Commitments or any interest
therein by such Lender, provided that such prospective transferee agrees to be bound by the
confidentiality provisions contained in this Section 13.16.




          (b) The Borrower hereby acknowledges and agrees that each Lender may share with any of its
affiliates, and such affiliates may share with such Lender, any information related to the Borrower
or any of its Subsidiaries (including, without limitation, any non-public customer information
regarding the creditworthiness of the Borrower and its Subsidiaries), provided such Persons
shall be subject to the provisions of this Section 13.16 to the same extent as such Lender.




          13.17. Special Provisions Regarding Pledges of Equity Interests in, and Promissory Notes
Owed by, Persons Not Organized in the United States. The parties hereto acknowledge and agree that the provisions of the various Security
Documents executed and delivered by the Credit Parties require that, among other things, all
promissory notes executed by, and capital stock and other Equity Interests in, various Persons
owned by the respective Credit Party be pledged, and delivered for pledge, pursuant to the Security
Documents. The parties hereto further acknowledge and agree that each Credit Party shall be
required to take all actions under the laws of the jurisdiction in which such Credit Party is
organized to create and perfect all security interests granted pursuant to the various Security
Documents and to take all actions under the laws of the United States and any State thereof to
perfect the security interests in the capital stock and other Equity Interests of, and promissory
notes issued by, any Person organized under the laws of said jurisdictions (in each case, to the
extent said capital stock, other Equity Interests or promissory notes are owned by any Credit
Party). Except as provided in the immediately preceding sentence, to the extent any Security
Document requires or provides for the pledge of promissory notes issued by, or capital stock or
other Equity Interests in, any Person organized under the laws of a jurisdiction other than those
specified in the immediately preceding sentence, it is acknowledged that, as of the Amendment No. 3
Effective Date, no actions have been required to be taken to perfect, under local law of the
jurisdiction of the Person who issued the respective promissory notes or whose capital stock or
other Equity Interests are pledged, under the Security Documents. The Borrower hereby agrees that,
following any request by the Administrative Agent or the Required Lenders to do so, the Borrower
will, and will cause its Subsidiaries to, take such actions (including, without limitation, the
execution of Additional Security Documents, the making of any filings and the delivery of
appropriate legal opinions) under the local law of any jurisdiction with respect to which such
actions have not already been taken as are determined by the Administrative Agent or the Required
Lenders to be necessary or desirable in order to fully perfect, preserve or protect the security
interests granted pursuant to the various Security Documents under the laws of such jurisdictions.
If requested to do so pursuant to this Section 13.17, all such actions shall be taken in accordance
with the provisions of this Section 13.17 and Section 9.12 and within the time periods set forth
therein. All conditions and representations contained in this Agreement and the other Credit
Documents shall be deemed modified to the extent necessary to effect the foregoing and so that same
are not violated by reason of the failure to take actions under local law (but only with respect to
capital stock of, other Equity Interests in, and promissory notes issued by, Persons organized
under laws of jurisdictions other than the United States and any State thereof) not required to be
taken in accordance with the provisions of this Section 13.17, provided that to the extent
any representation or warranty would not be true because the foregoing actions were not taken, the
respective representation of warranties shall be required to be true and correct in all material
respects at such time as the respective






-123-









 







action is required to be taken in accordance with the foregoing provisions of Section 9.12 and
this Section 13.17.




          13.18. Patriot Act. Each Lender subject to the USA PATRIOT ACT (Title 111 of Pub. L. 107-56 (signed into law
October 26, 2001)) (the “Act”) hereby notifies the Borrower and the other Credit Parties that
pursuant to the requirements of the Act, it is required to obtain, verify and record information
that identifies the Borrower and the other Credit Parties and other information that will allow
such Lender to identify the Borrower and the other Credit Parties in accordance with the Act.




* * *









-124-









 





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



	 	 	 	 	 
	 	DOLE FOOD COMPANY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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



[Signature Page to Amendment No. 3 to ABL Credit Agreement]





 










 







	 	 	 	 	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH, as

Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH, as Collateral

Agent

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



[Signature Page to Amendment No. 3 to ABL Credit Agreement]
















 






SCHEDULE I

GUARANTORS1




	 
	Calazo Corporation

	AG 1970, Inc.

	AG 1971, Inc.

	AG 1972, Inc.

	Alyssum Corporation

	Barclay Hollander Corporation

	Bud Antle, Inc.

	Calicahomes, Inc.

	California Polaris, Inc.

	CB North, LLC

	CB South, LLC

	Dole ABPIK, Inc.

	Dole Arizona Dried Fruit and Nut Company

	Dole Carrot Company

	Dole Citrus

	Dole DF&N, Inc.

	Dole Dried Fruit and Nut Company, a California General Partnership

	Dole Farming, Inc.

	Dole Fresh Vegetables, Inc.

	Dole Orland, Inc.

	Dole Packaged Foods, LLC

	E. T. Wall Company

	Earlibest Orange Association, Inc.

	Fallbrook Citrus Company, Inc.

	Lindero Headquarters Company, Inc.

	Lindero Property, Inc.

	Milagro Ranch, LLC

	Oceanview Produce Company

	Prairie Vista, Inc.

	Rancho Manana, LLC

	Royal Packing Co.

	Veltman Terminal Co.

	Bananera Antillana (Colombia), Inc.

	Clovis Citrus Association

	Delphinium Corporation

	Dole Berry Company, LLC

	Dole Europe Company

	Dole Foods Flight Operations, Inc.

	Dole Northwest, Inc.

	Dole Sunfresh Express, Inc.

	Standard Fruit and Steamship Company









 




			
	1	 	To be confirmed/updated.





[Schedule I-I to Amendment No. 3 to ABL Credit Agreement]




 









 





	 
	Standard Fruit Company

	Sun Country Produce, Inc.

	West Foods, Inc.

	Cool Advantage, Inc.

	Cool Care, Inc.

	Saw Grass Transport, Inc.

	Blue Anthurium, Inc.

	Cerulean, Inc.

	Dole Diversified, Inc.

	Dole Land Company, Inc.

	Dole Packaged Foods Corporation

	La Petite d’Agen, Inc.

	MK Development, Inc.

	Malaga Company, Inc.

	Muscat, Inc.

	Oahu Transport Company, Limited

	Wahiawa Water Company, Inc.

	Zante Currant, Inc.

	Diversified Imports Co.

	Dole Assets, Inc.

	Dole Fresh Fruit Company

	Dole Holdings, Inc.

	Dole Logistics Services, Inc.

	Dole Ocean Cargo Express, Inc.

	Dole Ocean Liner Express, Inc.

	Renaissance Capital Corporation

	Sun Giant, Inc.

	DNW Services Company

	Pacific Coast Truck Company

	Pan-Alaska Fisheries, Inc.







[Schedule I-II to Amendment No. 3 to ABL Credit Agreement]









 









 













	 	 	 	 	 
	 	                                                            ,

as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Amendment No. 3 to ABL Credit Agreement]





 














 




[EXHIBIT B to 
 Amendemnet No.3]




 


SECOND AMENDED AND RESTATED INTERCREDITOR AGREEMENT




dated as of March 2, 2010



among



DOLE FOOD COMPANY, INC.,



the other GRANTORS from time to time party hereto,



DEUTSCHE BANK AG NEW YORK BRANCH,

as Collateral Agent

under the ABL Credit Agreement,



DEUTSCHE BANK AG NEW YORK BRANCH,

as Collateral Agent

under the Term Credit Agreement



and


U.S. BANK NATIONAL ASSOCIATION,

as Collateral Agent under the Notes Security Documents




 







 









 








Table of Contents




	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 1.            DEFINITIONS	 	 	2	 
	 
	 	 	 	 	 	 
	1.1.

	 	Defined Terms
	 	 	2	 
	1.2.

	 	Terms Generally
	 	 	23	 
	 
	 	 	 	 	 	 
	SECTION 2.            TL PRIORITY COLLATERAL	 	 	24	 
	 
	 	 	 	 	 	 
	2.1.

	 	Lien Priorities
	 	 	24	 
	2.2.

	 	Exercise of Remedies
	 	 	26	 
	2.3.

	 	Payments Over
	 	 	31	 
	2.4.

	 	Other Agreements
	 	 	31	 
	2.5.

	 	Insolvency or Liquidation Proceedings
	 	 	43	 
	2.6.

	 	Reliance; Waivers; Etc.
	 	 	47	 
	 
	 	 	 	 	 	 
	SECTION 3.            ABL PRIORITY COLLATERAL	 	 	50	 
	 
	 	 	 	 	 	 
	3.1.

	 	Lien Priorities
	 	 	50	 
	3.2.

	 	Exercise of Remedies
	 	 	52	 
	3.3.

	 	Payments Over
	 	 	57	 
	3.4.

	 	Other Agreements
	 	 	58	 
	3.5.

	 	Insolvency or Liquidation Proceedings
	 	 	69	 
	3.6.

	 	Reliance; Waivers; Etc.
	 	 	73	 
	 
	 	 	 	 	 	 
	SECTION 4.            COOPERATION WITH RESPECT TO ABL PRIORITY COLLATERAL	 	 	76	 
	 
	 	 	 	 	 	 
	4.1.

	 	Consent to License to Use Intellectual Property
	 	 	76	 
	4.2.

	 	Access to Information
	 	 	77	 
	4.3.

	 	Access to Property to Process and Sell Inventory
	 	 	77	 
	4.4.

	 	Term Collateral Agent Assurances
	 	 	80	 
	4.5.

	 	Grantor Consent
	 	 	80	 
	 
	 	 	 	 	 	 
	SECTION 5.            APPLICATION OF PROCEEDS	 	 	80	 
	 
	 	 	 	 	 	 
	5.1.

	 	Application of Proceeds in Distributions by the Term Collateral Agent
	 	 	80	 
	5.2.

	 	Application of Proceeds in Distributions by the ABL Collateral Agent.
	 	 	82	 
	 
	 	 	 	 	 	 
	SECTION 6.            MISCELLANEOUS	 	 	84	 
	 
	 	 	 	 	 	 
	6.1.

	 	Conflicts
	 	 	84	 
	6.2.

	 	Effectiveness; Continuing Nature of This Agreement; Severability
	 	 	84	 
	6.3.

	 	Amendments; Waivers
	 	 	84	 
	6.4.

	 	Information Concerning Financial Condition of the Company and Its Subsidiaries
	 	 	85	 
	6.5.

	 	Submission to Jurisdiction; Waivers
	 	 	85	 
	6.6.

	 	Notices
	 	 	86	 






-i-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	6.7.

	 	Further Assurances
	 	 	86	 
	6.8.

	 	APPLICABLE LAW
	 	 	87	 
	6.9.

	 	Binding on Successors and Assigns
	 	 	87	 
	6.10.

	 	Specific Performance
	 	 	87	 
	6.11.

	 	Headings
	 	 	87	 
	6.12.

	 	Counterparts
	 	 	87	 
	6.13.

	 	Authorization; No Conflict
	 	 	87	 
	6.14.

	 	No Third Party Beneficiaries
	 	 	88	 
	6.15.

	 	Provisions Solely to Define Relative Rights
	 	 	88	 
	6.16.

	 	Additional Grantors
	 	 	88	 
	6.17.

	 	Avoidance Issues
	 	 	89	 
	6.18.

	 	Intercreditor Agreement
	 	 	89	 
	6.19.

	 	Foreign Collateral
	 	 	89	 
	6.20.

	 	Cash Collateral (Term Credit Agreement)
	 	 	89	 
	6.21.

	 	Credit-Linked Deposits
	 	 	89	 
	 
	 	 	 	 	 	 
	Exhibit A            Form of Intercreditor Agreement Joinder	 	 	 	 
	Annex A            Assignors	 	 	 	 






-ii-









 





          This SECOND AMENDED AND RESTATED INTERCREDITOR AGREEMENT is dated as of March 2, 2010 and is
by and among DOLE FOOD COMPANY, INC., a Delaware corporation (the “Company”), the other
GRANTORS (as defined in Section 1.1) from time to time party hereto, DEUTSCHE BANK AG NEW YORK
BRANCH (in its individual capacity, and any successor corporation thereto by merger, consolidation
or otherwise, “DBAG”), as ABL Collateral Agent (as defined below), DBAG, as Term Collateral
Agent (as defined below), and U.S. BANK NATIONAL ASSOCIATION (in its individual capacity, and any
successor corporation thereto by merger, consolidation or otherwise, “U.S. Bank”), as Notes
Collateral Agent (as defined below).




RECITALS:




          WHEREAS, certain of the Grantors have entered into a Credit Agreement, dated as of April 12,
2006, as amended on March 18, 2009, as amended on October 26, 2009, as amended on March 2, 2010 (as
amended, supplemented, amended and restated or otherwise modified and in effect from time to time,
the “ABL Credit Agreement”), among the Company, as borrower, the lenders from time to time
party thereto (the “ABL Lenders”), DBAG, as administrative agent (in such capacity and
together with its successors and assigns in such capacity, the “ABL Administrative Agent”),
DBAG, as collateral agent (in such capacity and together with its successors and assigns in such
capacity, the “ABL Collateral Agent”), and the other parties thereto;




          WHEREAS, pursuant to the various ABL Credit Documents, Grantors have provided guarantees and
security for the ABL Obligations;




          WHEREAS, certain of the Grantors have entered into a Credit Agreement, dated as of March 28,
2003, as amended and restated as of April 18, 2005, as further amended and restated as of April 12,
2006, as amended on March 18, 2009, as amended on October 26, 2009, as amended on March 2, 2010 (as
amended, supplemented, amended and restated or otherwise modified and in effect from time to time,
the “Term Credit Agreement” and, together with the ABL Credit Agreement, the “Credit
Agreements”), among the Company, as a borrower (in such capacity, the “U.S. Term
Borrower”), and Solvest, Ltd., a company organized under the laws of Bermuda, as a borrower (in
such capacity the “Bermuda Term Borrower” and, together with the U.S. Term Borrower, the
“Term Borrowers”), the lenders from time to time party thereto (the “Term Lenders”
and, together with the ABL Lenders, the “Lenders”), DBAG, as administrative agent (in such
capacity and together with its successors and assigns in such capacity, the “Term
Administrative Agent” and, together with the ABL Administrative Agent, the “Administrative
Agents”) and as deposit bank, DBAG, as collateral agent (in such capacity and together with its
successors and assigns in such capacity, the “Term Collateral Agent”), and the other
parties thereto;




          WHEREAS, pursuant to the various Term Documents, Grantors have provided guarantees and
security for the Term Obligations;




          WHEREAS, the Company is party to an Indenture dated as of March 18, 2009 (as amended,
restated, supplemented, waived, Refinanced or otherwise modified from time to time, the “137/8%
Notes Indenture”), among the Company, the guarantors identified therein and U.S.






 









 







Bank, as trustee (in such capacity and together with its successors and assigns in such
capacity, the “137/8% Notes Trustee”), and as collateral agent for the holders of Notes
Obligations (in such capacity and together with its successors and assigns in such capacity, the
“Notes Collateral Agent” and, together with the ABL Collateral Agent and the Term
Collateral Agent, the “Collateral Agents” and together with the Administrative Agents and
the Trustee, the “Agents”);




          WHEREAS, the Company is party to an Indenture dated as of September 25, 2009 (as amended,
restated, supplemented, waived, Refinanced or otherwise modified from time to time, the “8%
Notes Indenture” and, together with the 137/8% Notes Indenture, the “Indentures”), among
the Company, the guarantors identified therein and Deutsche Bank Trust Company Americas, as trustee
(in such capacity and together with its successors and assigns in such capacity, the “8% Notes
Trustee” and, together with the 137/8% Notes trustee, the “Trustees”);




          WHEREAS, pursuant to the various Notes Documents, Grantors have provided guarantees and
security for the Notes Obligations;




          WHEREAS, the Company and the other Grantors have secured the ABL Obligations under the ABL
Credit Agreement and any other ABL Documents (including any Permitted Refinancing thereof) with a
First Priority Lien on the ABL Priority Collateral and a Second Priority Lien on the TL Priority
Collateral;




          WHEREAS, the Company and the other Grantors have secured the Term Obligations under the Term
Credit Agreement and any other Term Documents (including any Permitted Refinancing thereof) with a
First Priority Lien on the TL Priority Collateral and a Second Priority Lien on the ABL Priority
Collateral; and




          WHEREAS, the Company and the other Grantors have secured the Notes Obligations under the
Indentures and any other Notes Documents with a Third Priority Lien on the TL Priority Collateral
and a Third Priority Lien on the ABL Priority Collateral.




          NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:



Section 1. Definitions.




          1.1. Defined Terms. The following terms when used in this Agreement, including its
preamble and recitals, shall have the following meanings:




          “8% Notes Indenture” shall have the meaning set forth in the recitals.




          “8% Notes Trustee” shall have the meaning set forth in the recitals.




          “137/8% Notes Indenture” shall have the meaning set forth in the recitals.




          “137/8% Notes Trustee” shall have the meaning set forth in the recitals.




          “ABL Administrative Agent” shall have the meaning set forth in the recitals hereto.







-2-









 








          “ABL Collateral Agent” shall have the meaning set forth in the recitals hereto and
includes any New ABL Agent to the extent set forth in Section 3.4(g).




          “ABL Collateral Priority Lien” shall have the meaning set forth in Section 3.4(a)(iv).




          “ABL Credit Agreement” shall have the meaning set forth in the recitals hereto.




          “ABL Documents” shall mean the ABL Credit Agreement and the Credit Documents (as
defined in the ABL Credit Agreement), (y) each Secured Cash Management Agreement with one or more
Secured Cash Management Bankss which is secured pursuant to one or more of the Security Documents
(as defined in the ABL Credit Agreement) and (z) and each of the other agreements, documents and
instruments providing for or evidencing any ABL Obligations (including any Permitted Refinancing of
any ABL Obligations), and any other document or instrument executed or delivered at any time in
connection with any ABL Obligations (including any Permitted Refinancing of any ABL Obligations),
together with any amendments, replacements, modifications, extensions, renewals or supplements to,
or restatements of, any of the foregoing.




          “ABL Lenders” shall have the meaning set forth in the recitals hereto.




          “ABL Obligations” shall mean all obligations (including guaranty obligations) of every
nature of each Grantor from time to time owed to (i) the ABL Secured Parties or any of them, under
any ABL Document (including any ABL Document in respect of a Permitted Refinancing of any ABL
Obligations), and (ii) the Secured Cash Management Banks or any of them, under any Secured Cash
Management Agreement, in each case, whether for principal, premium, interest (including interest
which, but for the filing of a petition in bankruptcy with respect to the Company or any of its
Subsidiaries, would have accrued on any ABL Obligation (including any Permitted Refinancing of any
ABL Obligations), whether or not a claim is allowed against such Person for such interest in the
related bankruptcy proceeding), reimbursement of amounts drawn under (and obligations to cash
collateralize) letters of credit and bank guaranties, fees, expenses, indemnification or otherwise.




          “ABL Permitted Liens” shall mean the “Permitted Liens” under, and as defined in, the
ABL Credit Agreement as originally in effect.




          “ABL Priority Collateral” shall mean, subject to the relevant provisions of Sections
6.20 and 6.21, all interests of each Grantor in the following, in each case whether now owned or
existing or hereafter acquired or arising and wherever located, including (1) all rights of each
Grantor to receive moneys due and to become due under or pursuant to the following, (2) all rights
of each Grantor to receive return of any premiums for or proceeds of any insurance, indemnity,
warranty or guaranty with respect to the following or to receive condemnation proceeds with respect
to the following, (3) all claims of each Grantor for damages arising out of, or for breach of, or
default under, any of the following, and (4) all rights of each Grantor to terminate, amend,
supplement, modify or waive performance under any of the following, to perform thereunder and to
compel performance and otherwise exercise all remedies thereunder:







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     (i) all Accounts and Receivables, but for purposes of this clause (i) excluding rights
to payment for any property which specifically constitutes TL Priority Collateral (and not
by virtue of clause (xi) of the definition thereof) which has been or is to be sold, leased,
licensed, assigned or otherwise disposed of;




     (ii) all Chattel Paper;




     (iii) all Deposit Accounts and all cash, checks, other negotiable instruments, funds
and other property held therein or credited thereto, and all Money (in each case, other than
the Asset Sale Proceeds Account, and all cash, checks, securities, financial assets or other
property held therein or credited thereto which constitute TL Priority Collateral and all
identifiable proceeds of any TL Priority Collateral);




     (iv) all Inventory;




     (v) to the extent evidencing or governing any of the items referred to in the preceding
clauses (i) through (iv), all General Intangibles, Instruments (including, without
limitation, Promissory Notes) and Letter of Credit Rights; provided that to the
extent any of the foregoing also relates to TL Priority Collateral, only that portion
related to the items referred to in the preceding clauses (i) through (iv) as being included
in the ABL Priority Collateral shall be included in the ABL Priority Collateral;




     (vi) to the extent relating to any of the items referred to in the preceding clauses
(i) through (v), all Documents and Insurance; provided that to the extent any of the
foregoing also relates to TL Priority Collateral only that portion related to the items
referred to in the preceding clauses (i) through (v) as being included in the ABL Priority
Collateral shall be included in the ABL Priority Collateral;




     (vii) to the extent relating to any of the items referred to in the preceding clauses
(i) through (vi), all Supporting Obligations; provided that to the extent any of the
foregoing also relates to TL Priority Collateral only that portion related to the items
referred to in the preceding clauses (i) through (vi) as being included in the ABL Priority
Collateral shall be included in the ABL Priority Collateral;




     (viii) all books, Records, Receivables Records and Collateral Records relating to the
foregoing (including without limitation all books, databases, customer lists, engineer
drawings, Records, Receivables Records and Collateral Records, whether tangible or
electronic, which contain any information relating to any of the foregoing); and




     (ix) all Cash Proceeds, products, accessions, rents and profits of or in respect of any
of the foregoing (including without limitation, all insurance proceeds) and all collateral
security, guarantees and other Collateral Support given by any Person with respect to any of
the foregoing.


Notwithstanding anything to the contrary contained above or in the definition of the TL Priority
Collateral, to the extent proceeds of Collateral are identifiable proceeds received from the sale
or disposition of all or substantially all of the Capital Stock of any of the Domestic Subsidiaries
of the Company which is a Grantor or all or substantially all of the assets of any such Domestic






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Subsidiary, such proceeds shall constitute (1) first, in an amount equal to the net book value of
the Accounts (as described in clause (i) above, and excluding any Accounts to the extent excluded
pursuant to said clause (i)) and Inventory owned by such Domestic Subsidiary at the time of such
sale, ABL Priority Collateral and (2) second, to the extent in excess of the amounts described in
preceding clause (1), TL Priority Collateral.




          “ABL Priority Collateral Enforcement Actions” shall have the meaning set forth in
Section 4.3(a).




          “ABL Priority Collateral Lien” shall have the meaning set forth in Section 3.4(a).




          “ABL Priority Collateral Processing and Sale Period” shall have the meaning set forth
in Section 4.3(a).




          “ABL Secured Parties” shall mean the lenders (including, in any event, each letter of
credit issuer and each swingline lender) and agents under the ABL Credit Agreement and the Secured
Cash Management Banks and shall include all former lenders and agents under the ABL Credit
Agreement and Secured Cash Management Banks to the extent that any ABL Obligations owing to such
Persons were incurred while such Persons were lenders or agents under the ABL Credit Agreement or
Secured Cash Management Banks and such ABL Obligations have not been paid or satisfied in full and
all new ABL Secured Parties to the extent set forth in Section 3.4(g).




          “ABL Security Agreement” shall mean the Security Agreement (as defined in the ABL
Credit Agreement).




          “ABL Security Documents” shall mean the ABL Security Agreement and the other Security
Documents (as defined in the ABL Credit Agreement) and any other agreement, document or instrument
pursuant to which a Lien is granted securing any ABL Obligations (including any Permitted
Refinancing of any ABL Obligations) or under which rights or remedies with respect to such Liens
are governed, together with any amendments, replacements, modifications, extensions, renewals or
supplements to, or restatements of, any of the foregoing.




          “ABL Standstill Period” shall have the meaning set forth in Section 2.2(a).




          “Account” shall mean any “account” as such term is defined in the UCC as in effect in
the State of New York on the date hereof, and in any event shall include but shall not be limited
to, all rights to payment of any monetary obligation, whether or not earned by performance, (i) for
property that has been or is to be sold, leased, licensed, assigned or otherwise disposed of, (ii)
for services rendered or to be rendered, (iii) for a policy of insurance issued or to be issued,
(iv) for a secondary obligation incurred or to be incurred, (v) for energy provided or to be
provided, (vi) for the use or hire of a vessel under a charter or other contract, (vii) arising out
of the use of a credit or charge card or information contained on or for use with the card, or
(viii) as winnings in a lottery or other game of chance operated or sponsored by a State,
governmental unit of a State, or person licensed or authorized to operate the game by a State or
governmental unit of a State. Without limiting the foregoing, the term “account” shall include all
Health-Care-Insurance Receivables.







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          “Additional Junior Lien Agreement” shall mean any agreement covering any additional
indebtedness issued by the Company constituting secured obligations under the Notes Security
Documents (pursuant to a joinder agreement thereto), to the extent such secured indebtedness is
permitted to be incurred in accordance with the Indentures, the Term Credit Agreement and the ABL
Credit Agreement and the terms of such joinder agreement subject the agent and the holders of such
indebtedness to the terms of this Agreement.




          “Administrative Agents” shall have the meaning set forth in the recitals hereto.




          “Affiliate” shall mean, with respect to any Person, any other Person directly or
indirectly controlling (including but not limited to all directors and officers of such Person),
controlled by, or under direct or indirect common control with such Person. A Person shall be
deemed to control another Person if such Person possesses, directly or indirectly, the power (i) to
vote 10% or more of the securities having ordinary voting power for the election of directors (or
equivalent governing body) of such Person or (ii) to direct or cause the direction of the
management and policies of such other Person, whether through the ownership of voting securities,
by contract or otherwise; provided, however, that neither any Agent nor any Lender
(nor any Affiliate thereof) shall be considered an Affiliate of the Company or any Subsidiary
thereof.




          “Agents” shall have the meaning set forth in the recitals hereto.




          “Agreement” shall mean this Amended and Restated Intercreditor Agreement as the same
may be amended, modified, restated and/or supplemented from time to time in accordance with its
terms.




          “Asset Sale Proceeds Account” shall mean one or more Deposit Accounts established by
the TL Collateral Agent into which there shall be deposited proceeds of sales or dispositions of TL
Priority Collateral (to the extent such proceeds constitute TL Priority Collateral).




          “Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy,”
as now and hereafter in effect, or any successor statute.




          “Bankruptcy Law” shall mean the Bankruptcy Code, and any similar federal or state or
non-U.S. law or statute for the supervision, administration or relief of debtors, including,
without limitation, bankruptcy or insolvency laws.




          “Bermuda Guaranteed Obligations” shall have the meaning set forth in the definition of
Term Obligations.




          “Bermuda Term Borrower” shall have the meaning set forth in the recitals hereto.




          “Business Day” shall mean any day except Saturday, Sunday and any day which shall be
in New York, New York, a legal holiday or a day on which banking institutions are authorized or
required by law or other government action to close.




          “Capital Lease” shall mean, as applied to any Person, any lease of any property
(whether real, person or mixed) by that Person as lessee that, in conformity with U.S. GAAP, is or
should be accounted for as a capital lease on the balance sheet of that Person.







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          “Capital Stock” shall mean any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation), including without limitation,
partnership interests and membership interests, and any and all warrants, rights or options to
purchase or other arrangements or rights to acquire any of the foregoing.




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




          “Cash Proceeds” shall mean all proceeds of any Collateral received by any Grantor
consisting of cash and checks.




          “Chattel Paper” shall mean “chattel paper” as such term is defined in Article 9 of the
UCC, as in effect in the State of New York on the date hereof. Without limiting the foregoing, the
term “Chattel Paper” shall in any event include all “tangible chattel paper” and all “electronic
chattel paper”, as each term is defined in Article 9 of the UCC as in effect in the State of New
York on the date hereof.




          “Collateral” shall mean all property (whether real, personal, movable or immovable)
with respect to which any security interests have been granted (or purported to be granted) by any
Grantor pursuant to any ABL Security Document, Term Security Document or Notes Security Document.




          “Collateral Agents” shall have the meaning set forth in the recitals hereto.




          “Collateral Records” shall mean all books, records, ledger cards, files,
correspondence, customer lists, blueprints, technical specifications, manuals, computer software,
computer printouts, tapes, disks and related data processing software and similar items that at any
time evidence or contain information relating to any of the Collateral or are otherwise necessary
or helpful in the collection thereof or realization thereupon.




          “Collateral Support” shall mean all property (real or personal) assigned, hypothecated
or otherwise securing any Collateral and shall include any security agreement or other agreement
granting a lien or security interest in such real or personal property.




          “Commercial Tort Claims” shall mean all “commercial tort claims” as such term is
defined in Article 9 of the UCC as in effect in the State of New York on the date hereof.




          “Commodities Accounts” shall mean all “commodity accounts” as such term is defined in
Article 9 of the UCC as in effect in the State of New York on the date hereof.




          “Company” shall have the meaning set forth in the recitals hereto.




          “Comparable ABL Security Document” shall mean, in relation to any Collateral subject
to any Lien created under any Term Security Document or Notes Security Document, that ABL Security
Document which creates (or purports to create) a Lien on the same Collateral, granted by the same
Grantor, as the same may be amended, modified or otherwise supplemented






-7-









 







from time to time in accordance with the terms hereof, thereof and the Credit Agreements and
the Indentures.




          “Comparable Notes Security Document” shall mean, in relation to any Collateral subject
to any Lien created under any Term Security Document or ABL Security Document, that Notes Security
Document which creates (or purports to create) a Lien on the same Collateral, granted by the same
Grantor, as the same may be amended, modified or otherwise supplemented from time to time in
accordance with the terms hereof, thereof, the Credit Agreements and the Indentures.




          “Comparable Term Security Document” shall mean, in relation to any Collateral subject
to any Lien created under any ABL Security Document or Notes Security Document, that Term Security
Document which creates (or purports to create) a Lien on the same Collateral, granted by the same
Grantor, as the same may be amended, modified or otherwise supplemented from time to time in
accordance with the terms hereof, thereof and the Credit Agreements and the Indentures.




          “Contingent Obligation” shall mean, as to any Person, any obligation of such Person as
a result of such Person being a general partner of any other Person, unless the underlying
obligation is expressly made non-recourse as to such general partner, and any obligation of such
Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other
obligations (“primary obligations”) of any other Person (the “primary obligor”) in
any manner, whether directly or indirectly, including, without limitation, any obligation of such
Person, whether or not contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof; provided, however, that the term
Contingent Obligation shall not include endorsements of instruments for deposit or collection in
the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the lesser of (x) the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith and (y) the stated amount of such Contingent
Obligation.




          “Copyright Licenses” shall mean any and all agreements providing for the granting of
any right in or to Copyrights (whether such Grantor is licensee or licensor thereunder).




          “Copyrights” shall mean any United States or foreign copyright (including community
designs), now or hereafter owned by any Grantor, including, but not limited to, copyrights in
software and databases, and all Mask Works (as defined under 17 U.S.C. 901 of the U.S. Copyright
Act), whether registered or not registered, and, with respect to any and all of the foregoing: (i)
all registrations and applications therefor (whether in the United States Copyright Office or any
foreign equivalent office), (ii) all extensions and renewals thereof, (iii) all rights






-8-









 







corresponding thereto throughout the world, (iv) all rights to sue for past, present and
future infringements thereof and (v) all Proceeds of the foregoing, including licenses, royalties,
income, payments, claims, damages and proceeds of suit.




          “Credit Agreements” shall have the meaning set forth in the recitals hereto.




          “DBAG” shall have the meaning set forth in the recitals hereto.




          “Defaulting ABL Secured Party” shall have the meaning set forth in Section 3.4(h).




          “Defaulting Term Secured Party” shall have the meaning set forth in Section 2.4(h).




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




          “DIP Financing” shall have the meaning set forth in Section 2.5(a).




          “Discharge of ABL Obligations” shall mean, except to the extent otherwise provided in
Section 3.4(f), the occurrence of all of the following:





     (i) termination or expiration of all commitments to extend credit that would constitute
ABL Obligations;




     (ii) payment in full in cash of the principal of and interest and premium (if any) on
all ABL Obligations (other than any undrawn letters of credit or bank guaranties);




     (iii) discharge or cash collateralization (at 110% of the aggregate undrawn amount) of
all outstanding letters of credit and bank guaranties constituting ABL Obligations; and




     (iv) payment in full in cash of all other ABL Obligations that are outstanding and
unpaid at the time the termination, expiration, discharge and/or cash collateralization set
forth in clauses (i) through (iii) above have occurred (other than any obligations for
taxes, costs, indemnifications, reimbursements, damages and other contingent liabilities in
respect of which no claim or demand for payment has been made at such time).



          “Discharge of Term Obligations” shall mean, except to the extent otherwise provided in
Section 2.4(f), the occurrence of all of the following:





     (i) termination or expiration of all commitments to extend credit that would constitute
Term Obligations (including, without limitation the Bermuda Guaranteed Obligations);



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     (ii) payment in full in cash of the principal of and interest and premium (if any) on
all Term Obligations (other than any undrawn letters of credit or bank guaranties)
including, without limitation, any such Term Obligations constituting Bermuda Guaranteed
Obligations;




     (iii) discharge or cash collateralization (at 110% of the aggregate undrawn amount) of
all outstanding letters of credit and bank guaranties constituting Term Obligations
including, without limitation, outstanding letters of credit and bank guaranties
constituting Bermuda Guaranteed Obligations; and




     (iv) payment in full in cash of all other Term Obligations (including, without
limitation, Bermuda Guaranteed Obligations) that are outstanding and unpaid at the time the
termination, expiration, discharge and/or cash collateralization set forth in clauses (i)
through (iii) above have occurred (other than any obligations for taxes, costs,
indemnifications, reimbursements, damages and other contingent liabilities in respect of
which no claim or demand for payment has been made at such time).



          “Documents” shall mean all “documents” as such term is defined in Article 9 of the UCC
in the State of New York on the date hereof.




          “Domestic Subsidiary” shall have the meaning provided in the Term Credit Agreement as
originally in effect.




          “Eligible ABL Purchaser” shall have the meaning set forth in Section 2.4(h).




          “Eligible Term Purchaser” shall have the meaning set forth in Section 3.4(h).




          “Equipment” shall mean any “equipment” as such term is defined in Article 9 of the UCC
as in effect in the State of New York on the date hereof, and in any event, shall include, but
shall not be limited to, all machinery, equipment, furnishings, appliances, furniture, fixtures,
tools, and vehicles now or hereafter owned by any Grantor in each case, regardless of whether
characterized as equipment under the UCC) and (y) and any and all additions, substitutions and
replacements of any of the foregoing and all accessions thereto, wherever located, whether or not
at any time of determination incorporated or installed therein or attached thereto, and all
replacements therefore, together with all attachments, components, parts, equipment and accessories
installed thereon or affixed thereto.




          “First Priority” shall mean, (i) with respect to any Lien purported to be created on
any ABL Priority Collateral pursuant to any ABL Security Document, that such Lien is prior in right
to any other Lien thereon, other than any ABL Permitted Liens (excluding ABL Permitted Liens as
described in clause (iii) of Section 10.03 of the ABL Credit Agreement) applicable to such ABL
Priority Collateral which as a matter of law (and giving effect to any actions taken pursuant to
the last paragraph of Section 10.03 of the ABL Credit Agreement) have priority over the respective
Liens on such ABL Priority Collateral created pursuant to the relevant ABL Security Document and
(ii) with respect to any Lien purported to be created on any TL Priority Collateral pursuant to any
Term Security Document, that such Lien is prior in right to any other Lien thereon, other than any
TL Permitted Liens (excluding TL Permitted Liens as described in clause (iii) of Section 9.03 of
the Term Credit Agreement) applicable to such TL Priority Collateral






-10-









 







which as a matter of law (and giving effect to any actions taken pursuant to the last
paragraph of Section 9.03 of the Term Credit Agreement) have priority over the respective Liens on
such TL Priority Collateral created pursuant to the relevant Term Security Document.




          “Fixtures” shall mean all “fixtures” as such term is defined in Article 9 of the UCC
as in effect in the State of New York on the date hereof.




          “Foreign Subsidiary” shall have the meaning provided in the Term Credit Agreement as
originally in effect.




          “General Intangibles” shall mean “general intangibles” as defined in Article 9 of the
UCC as in effect in the State of New York on the date hereof.




          “Goods” shall mean “goods” as such term is defined in Article 9 of the UCC as in
effect in the State of New York on the date hereof.




          “Grantors” shall mean the Company and each of its Domestic Subsidiaries that have
executed and delivered, or may from time to time hereafter execute and deliver, an ABL Security
Document, a Term Security Document or a Notes Security Document.




          “Health-Care-Insurance Receivable” shall mean any “health-care-insurance receivable”
as such term is defined in the Uniform Commercial Code as in effect on the date hereof in the State
of New York.




          “Hedge Agreement” shall mean any Interest Rate Protection Agreement and any Other
Hedging Agreement.




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




          “Indentures” shall have the meaning set forth in the recitals hereto and shall also
include any Additional Junior Lien Agreement.







-11-









 








          “Insolvency or Liquidation Proceeding” shall mean any of the following: (i) the
filing by any Grantor of a voluntary petition in bankruptcy under any provision of any bankruptcy
law (including, without limitation, the Bankruptcy Code) or a petition to take advantage of any
receivership or insolvency laws, including, without limitation, any petition seeking the
dissolution, winding up, total or partial liquidation, reorganization, composition, arrangement,
adjustment or readjustment or other relief of such Grantor, such Grantor’s debts or such Grantor’s
assets or the appointment of a trustee, receiver, liquidator, custodian or similar official for
such Grantor or a material part of such Grantor’s property; (ii) the admission in writing by such
Grantor of its inability to pay its debts generally as they become due; (iii) the appointment of a
receiver, liquidator, trustee, custodian or other similar official for such Grantor or all or a
material part of such Grantor’s assets; (iv) the filing of any petition against such Grantor under
any bankruptcy law (including, without limitation, the Bankruptcy Code) or other receivership or
insolvency law, including, without limitation, any petition seeking the dissolution, winding up,
total or partial liquidation, reorganization, composition, arrangement, adjustment or readjustment
or other relief of such Grantor, such Grantor’s debts or such Grantor’s assets or the appointment
of a trustee, receiver, liquidator, custodian or similar official for such Grantor or a material
part of such Grantor’s property; (v) the general assignment by such Grantor for the benefit of
creditors or any other marshalling of the assets and liabilities of such Grantor; or (vi) a
corporate (or similar) action taken by such Grantor to authorize any of the foregoing.




          “Instrument” shall mean “instruments” as such term is defined in Article 9 of the UCC
as in effect in the State of New York on the date hereof (provided, however,
Instruments shall not include any Instruments received in connection with grower loans extended in
accordance with Section 9.05 of the Term Credit Agreement, Section 10.05 of the ABL Credit
Agreement to the extent local law or the relevant grower loan documents prohibit such pledge).




          “Insurance” shall mean (i) all insurance policies covering any or all of the
Collateral (regardless of whether the ABL Collateral Agent, the Term Collateral Agent or the Notes
Collateral Agent is the loss payee or additional insured thereof) and (ii) any key man life
insurance policies.




          “Intellectual Property” shall mean, collectively, the Copyrights, the Copyright
Licenses, the Patents, the Patent Licenses, the Trademarks, the Trademark Licenses, the Trade
Secrets, and the Trade Secret Licenses.




          “Intercreditor Agreement Joinder” shall mean an agreement substantially in the form of
Exhibit A.




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




          “Inventory” shall mean merchandise, inventory and goods, and all additions,
substitutions and replacements thereof and all accessions thereto, wherever located, together with
all goods, supplies, incidentals, packaging materials, labels, materials and any other items used
or usable in manufacturing, processing, packaging or shipping same, in all stages of production
from raw materials through work in process to finished goods, and all products and proceeds of






-12-









 







whatever sort and wherever located, any portion thereof which may be returned, rejected,
reclaimed or repossessed by any of the Collateral Agents from any Grantor’s customers, and shall
specifically include all “inventory” as such term is defined in the UCC as in effect in the State
of New York on the date hereof.




          “Investment Accounts” shall mean all Securities Accounts, Commodities Accounts and
Deposit Accounts.




          “Investment Property” shall mean all “investment property” as such term is defined in
Article 9 of the UCC as in effect in the State of New York on the date hereof.




          “Joint Venture” shall mean a joint venture, partnership or other similar arrangement,
whether in corporate, partnership or other legal form; provided, in no event shall any
corporate subsidiary of any Person be considered to be a Joint Venture to which such Person is a
party.




          “Lender” shall have the meaning set forth in the recitals hereto.




          “Letter of Credit Rights” shall mean “letter-of-credit rights” as such term is defined
in Article 9 of the UCC as in effect in the State of New York on the date hereof.




          “Lien” shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, charge, lien (statutory or other), charge, preference,
priority or other security agreement of any kind or nature whatsoever (including any agreement to
give any of the foregoing, any conditional sale or other title retention agreement, any financing
or similar statement or notice filed under the UCC or any similar recording or notice statute or
other law, and any lease having substantially the same effect as the foregoing).




          “Material Contract” shall mean any contract or other arrangement to which the Company
or any of its Subsidiaries is a party (other than the Term Documents, the ABL Documents and the
Notes Documents) for which breach, nonperformance, cancellation or failure to renew could
reasonable be expected to have a Material Adverse Effect (as defined in the Term Credit Agreement
as originally in effect).




          “Money” shall mean “money” as defined in the UCC as in effect in the State of New York
on the date hereof.




          “New ABL Agent” shall have the meaning set forth in Section 3.4(g).




          “New Term Agent” shall have the meaning set forth in Section 2.4(g).




          “Noteholders” shall mean the holders of the Notes.




          “Notes” shall mean (x) the Company’s 137/8% Senior Secured Notes due 2014 issued
pursuant to the terms of the 137/8% Indenture, (y) the Company’s 8% Senior Secured Notes due 2016
issued pursuant to the terms of the 8% Notes Indenture and (z) any Indebtedness issued pursuant to
any Additional Junior Lien Agreement.







-13-









 








          “Notes Collateral Agent” shall have the meaning set forth in the recitals hereto.




          “Notes Documents” shall mean the Indentures and each of the other agreements,
documents and instruments providing for or evidencing any Notes Obligations (including any
Permitted Refinancing of any Notes Obligations), and any other document or instrument executed or
delivered at any time in connection with any Notes Obligations (including any Permitted Refinancing
of any Notes Obligations), together with any amendments, replacements, modifications, extensions,
renewals or supplements to, or restatements of, any of the foregoing.




          “Notes Obligations” shall mean all obligations (including guaranty obligations) of
every nature of each Grantor from time to time owed to the Noteholders or any of them, under any
Notes Document (including any Notes Document in respect of a Permitted Refinancing of any Notes
Obligations), whether for principal, premium, interest (including interest which, but for the
filing of a petition in bankruptcy with respect to the Company or any of its Subsidiaries, would
have accrued on any Notes Obligations (including any Permitted Refinancing of any Notes
Obligations), whether or not a claim is allowed against such Person for such interest in the
related bankruptcy proceeding), reimbursement of amounts drawn under (and obligations to cash
collateralize) letters of credit and bank guaranties, fees, expenses, indemnification or otherwise.




          “Notes Permitted Liens” shall mean “Permitted Liens” under, and as defined in, the
Indentures.




          “Notes Secured Parties” shall mean the Notes Collateral Agent, any other agent or
trustee for the Noteholders pursuant to the terms of the Indentures and the Notes Documents and the
Noteholders.




          “Notes Security Agreement” shall mean the Security Agreement (as defined in the
Indentures).




          “Notes Security Documents” shall mean the Notes Security Agreement and the other
Security Documents (as defined in the Indentures) and any other agreement, document or instrument
pursuant to which a Lien is granted securing any Notes Obligations (including any Permitted
Refinancing of any Notes Obligations) or under which rights or remedies with respect to such Liens
are governed, together with any amendments, replacements, modifications, extensions, renewals or
supplements to, or restatements of, any of the foregoing. For the avoidance of doubt, “Notes
Security Documents” shall not include any ABL Documents or any Term Documents.




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




          “Patent Licenses” shall mean all agreements providing for the granting of any right in
or to Patents (whether such Grantor is a licensee or licensor thereunder).




          “Patents” shall mean all patents (whether United States or foreign) in or to which any
Grantor now has or hereafter has any right, title or interest therein and certificates of
invention, or similar industrial property rights, and applications for any of the foregoing,
including, but






-14-









 







not limited to: (i) all reissues, divisions, continuations (including, but not limited to,
continuations-in-part and improvements thereof), extensions, renewals, and reexaminations thereof,
(ii) all rights corresponding thereto throughout the world, (iii) all inventions and improvements
described therein, (iv) all rights to sue for past, present and future infringements thereof, (v)
all licenses, claims, damages, and proceeds of suit arising therefrom, and (vi) all Proceeds of the
foregoing, including licenses, royalties, income, payments, claims, damages, and proceeds of suit.




          “Permitted Refinancing” shall mean, as to any Indebtedness, the Refinancing of such
Indebtedness (“Refinancing Indebtedness”) to refinance such existing Indebtedness;
provided that, in the case of such Refinancing Indebtedness, the following conditions are
satisfied:





     (i) the weighted average life to maturity of such Refinancing Indebtedness shall be
greater than or equal to the weighted average life to maturity of the Indebtedness being
refinanced, and the first scheduled principal payment in respect of such Refinancing
Indebtedness shall not be earlier than the first scheduled principal payment in respect of
the Indebtedness being refinanced;




     (ii) the principal amount of such Refinancing Indebtedness shall be less than or equal
to the principal amount then outstanding of the Indebtedness being refinanced, except to the
extent an increase in the principal amount thereof is permitted at such time pursuant to the
ABL Documents, the Term Documents and the Notes Documents which then remain in effect; and




     (iii) the terms applicable to such Refinancing Indebtedness and, if applicable, the
related guarantees of such Refinancing Indebtedness, shall not violate the applicable
requirements contained in any Term Documents or ABL Documents which remain outstanding after
giving effect to the respective Permitted Refinancing.



          “Person” shall mean any individual, partnership, joint venture, firm, corporation,
limited liability company, association, trust or other enterprise or any government or political
subdivision or any agency, department or instrumentality thereof.




          “Pledged ABL Priority Collateral” shall have the meaning set forth in Section 3.4(f).




          “Pledged Debt” shall mean all Indebtedness owed to a Grantor issued by the obligors
named therein, the instruments evidencing such Indebtedness, and all interest, cash, instruments
and other property or proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such Indebtedness.




          “Pledged Equity Interests” shall mean all Pledged Stock, Pledged LLC Interests,
Pledged Partnership Interests and Pledged Trust Interests.




          “Pledged LLC Interests” shall mean all interests in any limited liability company and
the certificates, if any, representing such limited liability company interests and any interest of
a Grantor on the books and records of such limited liability company or on the books and records of
any securities intermediary pertaining to such interest and all dividends, distributions,






-15-









 







cash, warrants, rights, options, instruments, securities and other property or proceeds from
time to time received, receivable or otherwise distributed in respect of or in exchange for any or
all of such limited liability company interests.




          “Pledged Partnership Interests” shall mean all interests in any general partnership,
limited partnership, limited liability partnership or other partnership and the certificates, if
any, representing such partnership interests and any interest of a Grantor on the books and records
of such partnership or on the books and records of any securities intermediary pertaining to such
interest and all dividends, distributions, cash, warrants, rights, options, instruments, securities
and other property or proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such partnership interests.




          “Pledged Stock” shall mean all shares of capital stock owned by a Grantor, and the
certificates, if any, representing such shares and any interest of a Grantor in the entries on the
books of the issuer of such shares or on the books of any securities intermediary pertaining to
such shares, and all dividends, distributions, cash, warrants, rights, options, instruments,
securities and other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such shares.




          “Pledged TL Priority Collateral” shall have the meaning set forth in Section 2.4(f).




          “Pledged Trust Interests” shall mean all interests in a Delaware business trust or
other trust (whether under the laws of the State of Delaware or otherwise) and the certificates, if
any, representing such trust interests and any interest of a Grantor on the books and records of
such trust or on the books and records of any securities intermediary pertaining to such interest
and all dividends, distributions, cash, warrants, rights, options, instruments, securities and
other property or proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such trust interests.




          “Proceeds” shall mean all “proceeds” as such term is defined in Article 9 of the UCC
as in effect in the State of New York on the date hereof and, in any event, shall also include, but
not be limited to, (i) any and all proceeds of any insurance, indemnity, warranty or guaranty
payable to either Collateral Agent or any Grantor from time to time with respect to any of the
Collateral, (ii) any and all payments (in any form whatsoever) made or due and payable to any
Grantor from time to time in connection with any requisition, confiscation, condemnation, seizure
or forfeiture of all or any part of the Collateral by any governmental authority (or any person
acting under color of governmental authority) and (iii) any and all other amounts from time to time
paid or payable under or in connection with any of the Collateral.




          “Processing and Sale Period” shall have the meaning set forth in Section 4.3(a).




          “Promissory Note” shall mean a “promissory note” as such term is defined in Article 9
of the UCC as in effect in the State of New York on the date hereof.




          “Receivables” shall mean all rights to payment, whether or not earned by performance,
for goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services
rendered or to be rendered, including, without limitation all such rights constituting or






-16-









 







evidenced by any Account, Chattel Paper, Instrument, General Intangible or Investment
Property, together with all of a Grantor’s rights, if any, in any goods or other property giving
rise to such right to payment and all Collateral Support and Supporting Obligations related thereto
and all Receivables Records.




          “Receivables Records” shall mean (i) all original copies of all documents, instruments
or other writings or electronic records or other Records evidencing Receivables, (ii) all books,
correspondence, credit or other files, Records, ledger sheets or cards, invoices, and other papers
relating to Receivables, including, without limitation, all tapes, cards, computer tapes, computer
discs, computer runs, record keeping systems and other papers and documents relating to
Receivables, whether in the possession or under the control of a Grantor or any computer bureau or
agent from time to time acting for a Grantor or otherwise, (iii) all evidences of the filing of
financing statements and the registration of other instruments in connection therewith, and
amendments, supplements or other modifications thereto, notices to other creditors or secured
parties, and certificates, acknowledgments, or other writings, including, without limitation, lien
search reports, from filing or other registration officers, (iv) all credit information, reports
and memoranda relating thereto and (v) all other written or nonwritten forms of information related
in any way to the foregoing or any Receivable.




          “Record” shall have the meaning specified in Article 9 of the UCC as in effect in the
State of New York on the date hereof.




          “Recovery” shall have the meaning set forth in Section 6.17.




          “Refinance” shall mean, in respect of any Indebtedness, to refinance, extend, renew,
retire, defease, amend, modify, supplement, restructure, replace, refund or repay, or to issue
other Indebtedness, in exchange or replacement for, such Indebtedness in whole or in part.
“Refinanced” and “Refinancing” shall have correlative meanings.




          “Scotia Capital” shall have the meaning set forth in the recitals hereto.




          “Second Priority” shall mean, (i) with respect to any Lien purported to be created on
any TL Priority Collateral pursuant to the ABL Security Documents, that such Lien is prior in right
to any other Lien thereon, other than (x) Liens permitted pursuant to clause (y) of Section
10.03(iii) of the ABL Credit Agreement and (y) TL Permitted Liens permitted to be prior to the
Liens on the TL Priority Collateral in accordance with clause (ii) of the definition of “First
Priority” contained herein; provided that in no event shall any such TL Permitted Lien be
permitted (on a consensual basis) to be junior and subordinate to any ABL Permitted Liens as
described in clause (x) above and senior in priority to the relevant Liens created pursuant to the
ABL Security Documents and (ii) with respect to any Lien purported to be created on any ABL
Priority Collateral pursuant to the Term Security Documents, that such Lien is prior in right to
any other Lien thereon, other than (x) Liens permitted pursuant to clause (y) of Section 9.03(iii)
of the Term Credit Agreement and (y) ABL Permitted Liens permitted to be prior to the Liens on the
ABL Priority Collateral in accordance with clause (i) of the definition of “First Priority”
contained herein; provided that in no event shall any such ABL Permitted Lien be permitted
(on a consensual basis) to be junior and subordinate to any TL Permitted Liens as described in
clause (x)






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above and senior in priority to the relevant Liens created pursuant to the Term Security
Documents.




          “Secured Cash Management Agreement” means a Treasury Services Agreement entered into
by the Borrower or any of its Subsidiaries with a Secured Cash Managed Bank.




          “Secured Cash Management Banks” means, with respect to any Treasury Services
Agreement, (x) any ABL Lender or any affiliate thereof (even if such ABL Lender subsequently ceases
to be a Lender under the ABL Credit Agreement for any reason) or (y) to the extent any such
Treasury Services Agreement was entered into prior to the Amendment No. 3 Effective Date, any
Original Lender or any affiliate thereof (even if such Original Lender ceased to be an Original
Lender under the Original Credit Agreement for any reason).




          “Secured Hedge Counterparty” shall have the meaning provided in the Term Credit
Agreement as originally in effect.




          “Secured Parties” shall mean the ABL Secured Parties, the Term Secured Parties and the
Notes Secured Parties.




          “Securities” shall mean all “securities” as such term is defined in Article 8 of the
UCC as in effect in the State of New York on the date hereof, any stock, shares, partnership
interests, voting trust certificates, certificates of interest or participation in any profit
sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences
of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as “securities” or any certificates of interest, shares or
participations in temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.




          “Securities Accounts” shall mean all “securities accounts” as such term is defined in
Article 8 of the UCC as in effect in the State of New York on the date hereof.




          “Securities Entitlements” shall mean all “securities entitlements” as such term is
defined in Article 8 of the UCC as in effect in the State of New York on the date hereof.




          “Subsequent ABL Collateral Priority Lien” shall have the meaning set forth in Section
3.4(b).




          “Subsequent Term Collateral Priority Lien” shall have the meaning set forth in Section
2.4(b).




          “Subsidiary” shall mean, with respect to any Person, any corporation, partnership,
limited liability company, association, joint venture or other business entity of which more than
50% of the total voting power of shares of stock or other ownership interests entitled (without
regard to the occurrence of any contingency) to vote in the election of the Person or Persons
(whether directors, managers, trustees or other Persons performing similar functions) having the
power to direct or cause the direction of the management and policies thereof is at the time owned
or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of
that Person or a combination thereof; provided, in determining the percentage of owner-






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ship interests of any Person controlled by another Person, no ownership interest in the nature
of a “qualifying share” of the former Person shall be deemed to be outstanding.




          “Supporting Obligations” shall mean any “supporting obligation” as such term is
defined in the UCC as in effect in the State of New York on the date hereof, now or hereafter owned
by any Grantor, or in which any Grantor has any rights, and, in any event, shall include, but shall
not be limited to all of such Grantor’s rights in any Letter-of-Credit Right or secondary
obligation that supports the payment or performance of, and all security for, any Collateral
consisting of Accounts, Chattel Paper, Documents, General Intangibles, Instruments or Investment
Properties.




          “Synthetic Lease” shall mean, as applied to any Person, any lease (including leases
that may be terminated by the lessee at any time) of any property (whether real, personal or
mixed), (i) that is not a capital lease in accordance with U.S. GAAP and (ii) in respect of which
the lessee retains or obtains ownership of the property so leased for federal income tax purposes,
other than any such lease under which that Person is the lessor.




          “Term Administrative Agent” shall have the meaning set forth in the recitals hereto.




          “Term Borrower” shall have the meaning set forth in the recitals hereto.




          “Term Collateral Agent” shall have the meaning set forth in the recitals hereto and
includes any New Term Agent to the extent set forth in Section 2.4(g).




          “Term Collateral Priority Lien” shall have the meaning set forth in Section 2.4(a).




          “Term Credit Agreement” shall have the meaning set forth in the recitals hereto.




          “Term Documents” shall mean (x) the Term Credit Agreement and the Credit Documents (as
defined in the Term Credit Agreement), (y) each Interest Rate Protection Agreement or Other Hedging
Agreement with one or more Secured Hedge Counterparties which is secured pursuant to one or more of
the Security Documents (as defined in the Term Credit Agreement) and (z) each of the other
agreements, documents and instruments providing for or evidencing any Term Obligation (including
any Permitted Refinancing of any Term Obligation), and any other document or instrument executed or
delivered at any time in connection with any Term Obligation (including any Permitted Refinancing
of any Term Obligation), together with any amendments, replacements, modifications, extensions,
renewals or supplements to, or restatements of, any of the foregoing.




          “Term Lenders” shall have the meaning set forth in the recitals hereto.




          “Term Obligations” shall mean all obligations (including guaranty obligations) of
every nature of each Grantor, from time to time owed to the Term Secured Parties or any of them,
under any Term Document (including any Term Document in respect of a Permitted Refinancing of any
Term Obligations), whether for principal, premium, interest (including interest which, but for the
filing of a petition in bankruptcy with respect to such Person, would have accrued on any Term
Obligation (including any Permitted Refinancing of any Term Obligations),






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whether or not a claim is allowed against the Company or any of its Subsidiaries for such
interest in the related bankruptcy proceeding), reimbursement of amounts drawn under (and
obligations to cash collateralize) letters of credit and bank guaranties, fees, expenses,
indemnification or otherwise. For the avoidance of doubt, it is specifically agreed that (x) each
Grantor has provided a full and unconditional guarantee of all obligations of the Bermuda Term
Borrower under the Term Documents (the “Bermuda Guaranteed Obligations”), (y) each Grantor
has granted a Lien on its Collateral to secure the Bermuda Guaranteed Obligations and (z) the
Bermuda Guaranteed Obligations constitute a portion of the Term Obligations.




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




          “Term Secured Parties” shall mean the lenders and agents under the Term Credit
Agreement (including, without limitation, the holders of Bermuda Guaranteed Obligations) and the
Secured Hedge Counterparties and shall include all former lenders and agents under the Term Credit
Agreement and Secured Hedge Counterparties to the extent that any Term Obligations owing to such
Persons were incurred while such Persons were lenders or agents under the Term Credit Agreement or
Secured Hedge Counterparties and such Term Obligations have not been paid or satisfied in full and
all new Term Secured Parties to the extent set forth in Section 2.4(f) hereof.




          “Term Security Agreement” shall mean the U.S. Security Agreement (as defined in the
Term Credit Agreement).




          “Term Security Documents” shall mean the Term Security Agreement and the other
Security Documents (as defined in the Term Credit Agreement) and any other agreement, document or
instrument pursuant to which a Lien is granted securing any Term Obligations (including any
Permitted Refinancing of any Term Obligation) or under which rights or remedies with respect to
such Liens are governed, together with any amendments, replacements, modifications, extensions,
renewals or supplements to, or restatements of, any of the foregoing.




          “Term Standstill Period” shall have the meaning set forth in Section 3.2(a).




          “Third Priority” shall mean, with respect to any Lien purported to be created on any
Collateral pursuant to the Notes Security Documents, that such Lien is prior in right to any other
Lien thereon other than Liens securing the ABL Obligations, Liens securing the Term Obligations and
Liens securing obligations permitted to be secured prior to the ABL Obligations and the Term
Obligations pursuant to the definitions of First Priority and Second Priority contained herein.




          “TL Permitted Liens” shall mean the “Permitted Liens” under, and as defined in, the
Term Credit Agreement as in effect on the Restatement Effective Date (as defined therein).




          “TL Priority Collateral” shall mean, subject to the relevant provisions of Sections
6.20 and 6.21, all interests of each Grantor in the following, in each case whether now owned or
existing or hereafter acquired or arising and wherever located, including (1) all rights of each
Grantor to receive moneys due and to become due under or pursuant to the following, (2) all rights
of each Grantor to receive return of any premiums for or proceeds of any insurance,






-20-









 







indemnity, warranty or guaranty with respect to the following or to receive condemnation
proceeds with respect to the following, (3) all claims of each Grantor for damages arising out of
or for breach of or default under any of the following, and (4) all rights of each Grantor to
terminate, amend, supplement, modify or waive performance under any of the following, to perform
thereunder and to compel performance and otherwise exercise all remedies thereunder:





     (i) the Asset Sale Proceeds Account;




     (ii) all Equipment;




     (iii) all Fixtures;




     (iv) all General Intangibles, including, without limitation, Material Contracts (in
each case other than General Intangibles evidencing or governing ABL Priority Collateral);




     (v) all Instruments (other than Instruments evidencing or governing or attached to (to
the extent so attached) ABL Priority Collateral);




     (vi) all Letter of Credit Rights (other than Letter of Credit Rights addressed in
clause (v) of the definition of “ABL Priority Collateral” herein);




     (vii) without duplication, all Pledged Equity Interests, all Pledged Debt, all
Securities, all Security Entitlements and all Securities Accounts (in each case, other than
any Collateral specifically listed as ABL Priority Collateral and any Supporting Obligations
supporting ABL Priority Collateral);




     (viii) all Intellectual Property;




     (ix) all Commercial Tort Claims;




     (x) all real property (including leasehold interests) on which the Grantors are
required to provide a Lien to the Term Secured Parties pursuant to the Term Credit Agreement
and any title insurance with respect to such real property and the proceeds thereof;




     (xi) except to the extent constituting, or relating to, the ABL Priority Collateral,
all other personal property (whether tangible or intangible) of such Grantor;




     (xii) to the extent constituting, or relating to, any of the items referred to in the
preceding clauses (i) through (xi), all Documents and Insurance; provided that to
the extent any of the foregoing also relates to ABL Priority Collateral only that portion
related to the items referred to in the preceding clauses (i) through (xi) as being included
in the TL Priority Collateral shall be included in the TL Priority Collateral;




     (xiii) to the extent relating to any of the items referred to in the preceding clauses
(i) through (xii), all Supporting Obligations; provided that to the extent any of
the foregoing also relates to ABL Priority Collateral only that portion related to the items
re-



-21-









 






ferred to in the preceding clauses (i) through (xii) as being included in the TL Priority
Collateral shall be included in the TL Priority Collateral;




     (xiv) all books, Records and Collateral Records relating to the foregoing (including
without limitation all books, databases, customer lists, engineer drawings, Records and
Collateral Records, whether tangible or electronic, which contain any information relating
to any of the foregoing); provided that to the extent any of such books, Records and
Collateral Records also relates to ABL Priority Collateral only that portion related to the
items referred to in the preceding clauses (i) through (xiii) as being included in the TL
Priority Collateral shall be included in the TL Priority Collateral; and




     (xv) all Cash Proceeds and, solely to the extent not constituting ABL Priority
Collateral, non-Cash Proceeds, products, accessions, rents and profits of or in respect of
any of the foregoing and all collateral security, guarantees and other Collateral Support
given by any Person with respect to any of the foregoing.


Notwithstanding anything to the contrary contained above or in the definition of “ABL Priority
Collateral,” to the extent proceeds of Collateral are identifiable proceeds received from the sale
or disposition of all or substantially all of the Capital Stock of any of the Domestic Subsidiaries
of the Company which is a Grantor or all or substantially all of the assets of any such Domestic
Subsidiary, such proceeds shall constitute (1) first, in an amount equal to the net book value of
the Accounts (as described in clause (i) of the definition of ABL Priority Collateral, and
excluding any Accounts to the extent excluded pursuant to said clause (i)) and Inventory owned by
such Domestic Subsidiary at the time of such sale, ABL Priority Collateral and (2) second, to the
extent in excess of the amounts described in the preceding clause (1), TL Priority Collateral.




          “TL Priority Collateral Enforcement Action Notice” shall have the meaning set forth in
Section 4.3(a).




          “TL Priority Collateral Enforcement Actions” shall have the meaning set forth in
Section 4.3(a).




          “Trade Secret Licenses” shall mean any and all agreements providing for the granting
of any right in or to Trade Secrets (whether a Grantor is a licensee or licensor thereunder).




          “Trade Secrets” shall mean all trade secrets and all other confidential or proprietary
information and know-how whether or not such Trade Secret has been reduced to a writing or other
tangible form, including all documents and things embodying, incorporating, or referring in any way
to such Trade Secret, including but not limited to: (i) any secretly held existing engineering or
other data, information, production procedures and other know-how relating to the design,
manufacture, assembly, installation, use, operation, marketing, sale and/or servicing of any
products or business of any Grantor worldwide, (ii) the right to sue for past, present and future
misappropriation or other violation of any Trade Secret, and (iii) all Proceeds of the foregoing,
including licenses, royalties, income, payments, claims, damages, and proceeds of suit.




          “Trademark Licenses” shall mean any and all agreements providing for the granting of
any right in or to Trademarks (whether such Grantor is licensee or licensor thereunder).







-22-









 








          “Trademarks” shall mean (i) all United States and foreign trademarks, trade names,
corporate names, company names, business names, fictitious business names, Internet domain names,
service marks, certification marks, collective marks, logos, other source or business identifiers,
designs and general intangibles of a like nature, all registrations and applications for any of the
foregoing, (ii) all extensions or renewals of any of the foregoing, (iii) all of the goodwill of
the business connected with the use of and symbolized by the foregoing, (iv) the right to sue for
past, present and future infringement or dilution of any of the foregoing or for any injury to
goodwill, and (v) all Proceeds of the foregoing, including licenses, royalties, income, payments,
claims, damages, and proceeds of suit.




          “Treasury Services Agreement” shall mean any agreement relating to treasury,
depositary and cash management services or automated clearinghouse transfer of funds.




          “Trustees” shall have the meaning set forth in the recitals hereto.




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




          “U.S. Bank” shall have the meaning set forth in the recitals hereto.




          “U.S. GAAP” shall mean generally accepted accounting principles in the United States
of America as in effect from time to time.




          “U.S. Term Borrower” shall have the meaning set forth in the recitals hereto.




          1.2. Terms Generally. The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The
word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified, (b) any reference herein to any
Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,”
“hereof” and “hereunder,” and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision of this Agreement, (d) all references
herein to Exhibits or Sections shall be construed to refer to Exhibits or Sections of this
Agreement, (e) the words “asset” and “property” shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights, (f) terms defined in the UCC but not otherwise defined
herein shall have the same meanings herein as are assigned thereto in the UCC, (g) reference to any
law means such law as amended, modified, codified, replaced or re-enacted, in whole or in part, and
in effect on the date hereof, including rules, regulations, enforcement procedures and any
interpretations promulgated thereunder, and (h) references to Sections or clauses shall refer to
those portions of this Agreement, and any references to a clause shall, unless otherwise
identified, refer to the appropriate clause within the same Section in which such reference occurs.








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Section 2. TL Priority Collateral.




          2.1. Lien Priorities.




          (a) Relative Priorities. Notwithstanding (i) the time, manner, order or method of
grant, creation, attachment or perfection of any Liens securing the ABL Obligations or the Notes
Obligations granted on the TL Priority Collateral or of any Liens securing the Term Obligations
granted on the TL Priority Collateral, (ii) the validity or enforceability of the security
interests and Liens granted in favor of any Collateral Agent or any Secured Party on the TL
Priority Collateral, (iii) the date on which any ABL Obligations, Term Obligations or Notes
Obligations is extended, (iv) any provision of the UCC or any other applicable law, including any
rule for determining priority thereunder or under any other law or rule governing the relative
priorities of secured creditors, including with respect to real property or fixtures, (v) any
provision set forth in any ABL Document, any Term Document or any Notes Document (other than this
Agreement), (vi) the possession or control by any Collateral Agent or any Secured Party or any
bailee of all or any part of any TL Priority Collateral as of the date hereof or otherwise, or
(vii) any other circumstance whatsoever, the ABL Collateral Agent, on behalf of itself and the ABL
Secured Parties, and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties
hereby agree that:




     (i) any Lien on the TL Priority Collateral securing any Term Obligations now or
hereafter held by or on behalf of the Term Collateral Agent or any Term Secured Parties or
any agent or trustee therefor, regardless of how acquired, whether by grant, possession,
statute, operation of law, subrogation or otherwise, shall be senior in all respects and
prior to (x) any Lien on the TL Priority Collateral securing any of the ABL Obligations and
(y) any Lien on the TL Priority Collateral securing any of the Notes Obligations;




     (ii) any Lien on the TL Priority Collateral now or hereafter held by or on behalf of
the ABL Collateral Agent, any ABL Secured Parties, the Notes Collateral Agent, any Notes
Secured Parties or any agent or trustee therefor regardless of how acquired, whether by
grant, possession, statute, operation of law, subrogation or otherwise, shall be junior and
subordinate in all respects to all Liens on the TL Priority Collateral securing any Term
Obligations;




     (iii) any Lien on the TL Priority Collateral securing any ABL Obligations now or
hereafter held by or on behalf of the ABL Collateral Agent or any ABL Secured Parties or any
agent or trustee therefor, regardless of how acquired, whether by grant, possession,
statute, operation of law, subrogation or otherwise, shall be senior in all respects and
prior to any Lien on the TL Priority Collateral securing any of the Notes Obligations; and




     (iv) any Lien on the TL Priority Collateral now or hereafter held by or on behalf of
the Notes Collateral Agent, any Notes Secured Party or any agent or trustee therefor
regardless of how acquired, whether by grant, possession, statute, operation of law,
subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on
the TL Priority Collateral securing any ABL Obligations.







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All Liens on the TL Priority Collateral securing any Term Obligations shall be and remain senior in
all respects and prior to all Liens on the TL Priority Collateral securing (x) any ABL Obligations
and (y) any Notes Obligations for all purposes, whether or not such Liens securing any Term
Obligations are subordinated to any Lien securing any other obligation of the Company, any other
Grantor or any other Person. All Liens on the TL Priority Collateral securing any ABL Obligations
shall be and shall remain senior in all respects and prior to all Liens on the TL Priority
Collateral securing any Notes Obligations for all purposes, whether or not such Liens securing any
ABL Obligations are subordinated to any Lien securing any other obligation of the Company, any
other Grantor or any other Person.




          (b) Prohibition on Contesting Liens. Each of the ABL Collateral Agent, for itself and
on behalf of each ABL Secured Party, the Term Collateral Agent, for itself and on behalf of each
Term Secured Party, and the Notes Collateral Agent for itself and on behalf of each Notes Secured
Party, agrees that it shall not (and hereby waives any right to) contest or support any other
Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), (i)
the priority, validity or enforceability of a Lien held by or on behalf of any of the Term Secured
Parties in the TL Priority Collateral, by or on behalf of any of the ABL Secured Parties in the TL
Priority Collateral or by or on behalf of any of the Notes Secured Parties in the TL Priority
Collateral, as the case may be or (ii) the validity or enforceability of any ABL Security Document
(or any ABL Obligations thereunder), any Term Security Document (or any Term Obligations
thereunder) or any Notes Security Document (or any Notes Obligations thereunder); provided
that nothing in this Agreement shall be construed to prevent or impair the rights of any of the
Collateral Agents or any Secured Party to enforce this Agreement, including the priority of the
Liens on the TL Priority Collateral securing the Term Obligations, the ABL Obligations and the
Notes Obligations as provided in Sections 2.1(a), 2.2(a) and 2.2(b).




          (c) No New Liens. So long as the Discharge of Term Obligations has not occurred, the
parties hereto agree that the Company or any other Grantor shall not grant or permit any additional
Liens on any asset or property of any Grantor to secure any ABL Obligation or Notes Obligation
unless it has granted or contemporaneously grants (x)(i) a First Priority Lien on such asset or
property to secure the Term Obligations if such asset or property constitutes TL Priority
Collateral or (ii) a Second Priority Lien on such asset or property to secure the Term Obligations
if such asset or property constitutes ABL Priority Collateral, (y)(i) a Second Priority Lien on
such asset or property to secure the ABL Obligations if such asset or property constitutes TL
Priority Collateral or (ii) a First Priority Lien on such asset or property to secure the ABL
Obligations if such asset or property constitutes ABL Priority Collateral and (z) a Third Priority
Lien on such asset or property to secure the Notes Obligations. To the extent that the provisions
of clause (x)(i) in the immediately preceding sentence are not complied with for any reason,
without limiting any other rights and remedies available to the Term Collateral Agent and/or the
Term Secured Parties, each of the ABL Collateral Agent, on behalf of ABL Secured Parties, and the
Notes Collateral Agent, on behalf of the Notes Secured Parties, agrees that any amounts received by
or distributed to any of them pursuant to or as a result of Liens on the TL Priority Collateral
granted in contravention of such clause (x)(i) of this Section 2.1(c) shall be subject to Section
2.3.




          (d) Effectiveness of Lien Priorities. Each of the parties hereto acknowledges that
the Lien priorities provided for in this Agreement shall not be affected or impaired in any






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manner whatsoever, including, without limitation, on account of: (i) the invalidity,
irregularity or unenforceability of all or any part of the ABL Documents, the Term Documents or the
Notes Documents; (ii) any amendment, change or modification of any ABL Documents, Term Documents or
Notes Documents; or (iii) any impairment, modification, change, exchange, release or subordination
of or limitation on, any liability of, or stay of actions or lien enforcement proceedings against,
the Company or any of its Subsidiaries party to any of the ABL Documents, the Term Documents or the
Notes Documents, its property, or its estate in bankruptcy resulting from any bankruptcy,
arrangement, readjustment, composition, liquidation, rehabilitation, similar proceeding or
otherwise involving or affecting any Secured Party.




          2.2. Exercise of Remedies.




          (a) So long as the Discharge of Term Obligations has not occurred, whether or not any
Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other
Grantor:




     (i) none of the ABL Collateral Agent, the ABL Secured Parties, the Notes Collateral
Agent or the Notes Secured Parties (x) will exercise or seek to exercise any rights or
remedies (including, without limitation, setoff) with respect to any TL Priority Collateral
(including, without limitation, the exercise of any right under any lockbox agreement,
account control agreement, landlord waiver or bailee’s letter or similar agreement or
arrangement in respect of TL Priority Collateral to which the ABL Collateral Agent, the
Notes Collateral Agent, any ABL Secured Party or any Notes Secured Party is a party) or
institute or commence, or join with any Person (other than the Term Collateral Agent and the
Term Secured Parties) in commencing any action or proceeding with respect to such rights or
remedies (including any action of foreclosure), enforcement, collection or execution;
provided, however, that the ABL Collateral Agent may exercise any or all
such rights after the passage of a period of 180 days from the date of delivery of a notice
in writing to the Term Collateral Agent of the ABL Collateral Agent’s intention to exercise
its right to take such actions (the “ABL Standstill Period”); provided,
further, however, notwithstanding anything herein to the contrary, neither
the ABL Collateral Agent nor any ABL Secured Party will exercise any rights or remedies with
respect to any TL Priority Collateral if, notwithstanding the expiration of the ABL
Standstill Period, the Term Collateral Agent or Term Secured Parties shall have commenced
the exercise of any of their rights or remedies with respect to all or any portion of the TL
Priority Collateral (prompt notice of such exercise to be given to the ABL Collateral Agent)
and are pursuing the exercise thereof, (y) will contest, protest or object to any
foreclosure proceeding or action brought by the Term Collateral Agent or any Term Secured
Party with respect to, or any other exercise by the Term Collateral Agent or any Term
Secured Party of any rights and remedies relating to, the TL Priority Collateral under the
Term Documents or otherwise, or (z) subject to the rights of the ABL Collateral Agent under
clause (i)(x) above, will object to the forbearance by the Term Collateral Agent or the Term
Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other
exercise of any rights or remedies relating to the TL Priority Collateral, in each case so
long as the respective interests of the ABL Secured Parties and the Notes Secured Parties
attach to the proceeds thereof subject to the relative priorities described in Section 2.1;
provided, that the Notes Collateral Agent and the Notes Secured




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Parties will not object to the forbearance by the ABL Collateral Agent or the ABL
Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other
exercise of any rights or remedies relating to the TL Priority Collateral, in each case so
long as the interests of the Notes Secured Parties attach to the proceeds thereof subject to
the relative priorities described in Section 2.1; provided, however, that
nothing in this Section 2.2(a) shall be construed to authorize (A) the ABL Collateral Agent,
any ABL Secured Party, the Notes Collateral Agent or any Notes Secured Party to sell any TL
Priority Collateral free of the Lien of the Term Collateral Agent or any Term Secured Party
or (B) the Notes Collateral Agent or any Notes Secured Party to sell any TL Priority
Collateral free of the Lien of the ABL Collateral Agent or any ABL Secured Party; and




     (ii) subject to Section 4, the Term Collateral Agent and the Term Secured Parties shall
have the exclusive right to enforce rights, exercise remedies (including setoff and the
right to credit bid their debt) and make determinations regarding the disposition of, or
restrictions with respect to, the TL Priority Collateral without any consultation with or
the consent of the ABL Collateral Agent, any ABL Secured Party, the Notes Collateral Agent
or any Notes Secured Party; provided, that:




     (1) the ABL Collateral Agent may take any action (not adverse to the prior
Liens on the TL Priority Collateral securing the Term Obligations, or the rights of
any Term Collateral Agent or the Term Secured Parties to exercise remedies in
respect thereof) in order to preserve or protect its Lien on the TL Priority
Collateral;




     (2) the Notes Collateral Agent may take any action (not adverse to the prior
Liens on the TL Priority Collateral securing the Term Obligations and the ABL
Obligations, or the rights of any Term Collateral Agent, the Term Secured Parties,
any ABL Collateral Agent or the ABL Secured Parties to exercise remedies in respect
thereof) in order to preserve or protect its Lien on the TL Priority Collateral;




     (3) the ABL Secured Parties and the Notes Secured Parties shall be entitled to
file any necessary responsive or defensive pleadings in opposition to any motion,
claim, adversary proceeding or other pleading made by any person objecting to or
otherwise seeking the disallowance of the claims of the ABL Secured Parties or the
Notes Secured Parties, as applicable, including without limitation any claims
secured by the TL Priority Collateral, if any, in each case in accordance with the
terms of this Agreement;




     (4) the ABL Secured Parties and the Notes Secured Parties shall be entitled to
file any pleadings, objections, motions or agreements which assert rights or
interests available to unsecured creditors of the Grantors arising under either the
Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the
terms of this Agreement;




     (5) the ABL Secured Parties and the Notes Secured Parties shall be entitled to
vote on any plan of reorganization and file any proof of claim in an Insol-



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vency or Liquidation Proceeding or otherwise and other filings and make any
arguments and motions that are, in each case, in accordance with the terms of this
Agreement, with respect to the TL Priority Collateral; and




     (6) the ABL Collateral Agent or any ABL Secured Party may exercise any of its
rights or remedies with respect to the TL Priority Collateral after the termination
of the ABL Standstill Period to the extent permitted by clause (i)(x) above.


Subject to Section 4, in exercising rights and remedies with respect to the TL Priority Collateral,
the Term Collateral Agent and the Term Secured Parties may enforce the provisions of the Term
Documents and exercise remedies thereunder, all in such order and in such manner as they may
determine in the exercise of their sole discretion. Such exercise and enforcement shall include
the rights of an agent appointed by them to sell or otherwise dispose of TL Priority Collateral
upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise
all the rights and remedies of a secured creditor under the UCC of any applicable jurisdiction and
of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.




          (b) Following the Discharge of Term Obligations, so long as the Discharge of ABL Obligations
has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or
against the Company or any other Grantor:





     (i) none of the Notes Collateral Agent and the Notes Secured Parties (x) will exercise
or seek to exercise any rights or remedies (including, without limitation, setoff) with
respect to any TL Priority Collateral (including, without limitation, the exercise of any
right under any lockbox agreement, account control agreement, landlord waiver or bailee’s
letter or similar agreement or arrangement in respect of TL Priority Collateral to which the
Notes Collateral Agent or any Notes Secured Party is a party) or institute or commence, or
join with any Person (other than the ABL Collateral Agent and the ABL Secured Parties) in
commencing any action or proceeding with respect to such rights or remedies (including any
action of foreclosure), enforcement, collection or execution; (y) will contest, protest or
object to any foreclosure proceeding or action brought by the ABL Collateral Agent or any
ABL Secured Party with respect to, or any other exercise by the ABL Collateral Agent or any
ABL Secured Party of any rights and remedies relating to, the TL Priority Collateral under
the ABL Documents or otherwise, or (z) will object to the forbearance by the ABL Collateral
Agent or the ABL Secured Parties from bringing or pursuing any foreclosure proceeding or
action or any other exercise of any rights or remedies relating to the TL Priority
Collateral, in each case so long as the respective interests of the Notes Secured Parties
attach to the proceeds thereof subject to the relative priorities described in Section 2.1;
and




     (ii) the ABL Collateral Agent and the ABL Secured Parties shall have the exclusive
right to enforce rights, exercise remedies (including setoff and the right to credit bid
their debt) and make determinations regarding the disposition of, or restrictions with
respect to, the TL Priority Collateral without any consultation with or the consent of the
Notes Collateral Agent or any Notes Secured Party; provided, that:



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     (1) the Notes Collateral Agent may take any action (not adverse to the prior
Liens on the TL Priority Collateral securing the ABL Obligations, or the rights of
any ABL Collateral Agent or the ABL Secured Parties to exercise remedies in respect
thereof) in order to preserve or protect its Lien on the TL Priority Collateral;




     (2) the Notes Secured Parties shall be entitled to file any necessary
responsive or defensive pleadings in opposition to any motion, claim, adversary
proceeding or other pleading made by any person objecting to or otherwise seeking
the disallowance of the claims of the Notes Secured Parties, including without
limitation any claims secured by the TL Priority Collateral, if any, in each case in
accordance with the terms of this Agreement;




     (3) the Notes Secured Parties shall be entitled to file any pleadings,
objections, motions or agreements which assert rights or interests available to
unsecured creditors of the Grantors arising under either the Bankruptcy Law or
applicable non-bankruptcy law, in each case in accordance with the terms of this
Agreement; and




     (4) the Notes Secured Parties shall be entitled to vote on any plan of
reorganization and file any proof of claim in an Insolvency or Liquidation
Proceeding or otherwise and other filings and make any arguments and motions that
are, in each case, in accordance with the terms of this Agreement, with respect to
the TL Priority Collateral.


In exercising rights and remedies with respect to the TL Priority Collateral, the ABL Collateral
Agent and the ABL Secured Parties may enforce the provisions of the ABL Documents and exercise
remedies thereunder, all in such order and in such manner as they may determine in the exercise of
their sole discretion. Such exercise and enforcement shall include the rights of an agent
appointed by them to sell or otherwise dispose of TL Priority Collateral upon foreclosure, to incur
expenses in connection with such sale or disposition, and to exercise all the rights and remedies
of a secured creditor under the UCC of any applicable jurisdiction and of a secured creditor under
Bankruptcy Laws of any applicable jurisdiction.




          (c) Each of the ABL Collateral Agent, on behalf of itself and the ABL Secured Parties and the
Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that they will not
take or receive any TL Priority Collateral or any proceeds of TL Priority Collateral in connection
with the exercise of any right or remedy (including setoff) with respect to any TL Priority
Collateral unless and until the Discharge of Term Obligations has occurred, except as expressly
provided in the proviso in clause (ii) of Section 2.2(a) or in Section 4. Following the Discharge
of Term Obligations, the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties,
agrees that it will not take or receive any TL Priority Collateral or any proceeds of TL Priority
Collateral in connection with the exercise of any right or remedy (including setoff) with respect
to any TL Priority Collateral unless and until the Discharge of ABL Obligations has occurred.
Without limiting the generality of the foregoing, (x) unless and until the Discharge of Term
Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section
2.2(a) or in Section 4, the sole right of the ABL Collateral Agent, the ABL






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Secured Parties with respect to the TL Priority Collateral is to hold a Lien on the TL
Priority Collateral pursuant to the ABL Documents for the period and to the extent granted therein
and to receive a share of the proceeds thereof, if any, after the Discharge of Term Obligations has
occurred in accordance with the terms hereof, the Term Documents and applicable law and (y) unless
and until the Discharge of Term Obligations and Discharge of ABL Obligations have occurred, except
as expressly provided in the proviso in clause (ii) of Section 2.2(a) and the proviso in clause
(ii) of Section 2.2(b), the sole right of the Notes Collateral Agent and the Notes Secured Parties
with respect to the TL Priority Collateral is to hold a Lien on the TL Priority Collateral pursuant
to the Notes Documents for the period and to the extent granted therein and to receive a share of
the proceeds thereof, if any, after the Discharge of Term Obligations and the Discharge of ABL
Obligations has occurred in accordance with the terms hereof, the Term Documents, the ABL Documents
and applicable law.




          (d) Subject to the proviso in clause (ii) of Section 2.2(a), the proviso in clause (ii) of
Section 2.2(b) and Section 4:





     (i) the ABL Collateral Agent, for itself and on behalf of the ABL Secured Parties,
agrees that the ABL Collateral Agent and the ABL Secured Parties will not take any action
that would hinder any exercise of remedies under the Term Documents with respect to the TL
Priority Collateral or is otherwise prohibited hereunder, including any sale, lease,
exchange, transfer or other disposition of the TL Priority Collateral, whether by
foreclosure or otherwise,




     (ii) the Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties,
agrees that the Notes Collateral Agent and the Notes Secured Parties will not take any
action that would hinder any exercise of remedies under the Term Documents or the ABL
Documents with respect to the TL Priority Collateral or is otherwise prohibited hereunder,
including any sale, lease, exchange, transfer or other disposition of the TL Priority
Collateral, whether by foreclosure or otherwise,




     (iii) the ABL Collateral Agent, for itself and on behalf of the ABL Secured Parties,
hereby waives any and all rights it or the ABL Secured Parties may have as a junior lien
creditor with respect to the TL Priority Collateral or otherwise to object to the manner in
which the Term Collateral Agent or the Term Secured Parties seek to enforce or collect the
Term Obligations or the Liens granted in any of the TL Priority Collateral, regardless of
whether any action or failure to act by or on behalf of the Term Collateral Agent or Term
Secured Parties is adverse to the interest of the ABL Secured Parties, and




     (iv) the Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties,
hereby waives any and all rights it or the Notes Secured Parties may have as a junior lien
creditor with respect to the TL Priority Collateral or otherwise to object to the manner in
which the Term Collateral Agent, the Term Secured Parties, the ABL Collateral Agent or the
ABL Secured Parties seek to enforce or collect the Term Obligations or the ABL Obligations
or the Liens granted in any of the TL Priority Collateral, regardless of whether any action
or failure to act by or on behalf of the Term Collateral Agent, Term Secured Parties, the
ABL Collateral Agent or the ABL Secured Parties is adverse to the interest of the Notes
Secured Parties.



-30-









 





          (e) The ABL Collateral Agent hereby acknowledges and agrees that no covenant, agreement or
restriction contained in any ABL Document (other than this Agreement) shall be deemed to restrict
in any way the rights and remedies of the Term Collateral Agent or the Term Secured Parties with
respect to the TL Priority Collateral as set forth in this Agreement and the Term Documents.




          (f) The Notes Collateral Agent hereby acknowledges and agrees that no covenant, agreement or
restriction contained in any Notes Document (other than this Agreement) shall be deemed to restrict
in any way the rights and remedies of the Term Collateral Agent, the Term Secured Parties, the ABL
Collateral Agent or the ABL Secured Parties with respect to the TL Priority Collateral as set forth
in this Agreement, the Term Documents and the ABL Documents.




          2.3. Payments Over.




          (a) So long as the Discharge of Term Obligations has not occurred, any TL Priority Collateral,
cash proceeds thereof or non-cash proceeds not constituting ABL Priority Collateral received by the
ABL Collateral Agent, the Notes Collateral Agent, any ABL Secured Parties or any Notes Secured
Parties in connection with the exercise of any right or remedy (including setoff) relating to the
TL Priority Collateral in contravention of this Agreement shall be segregated and held in trust and
forthwith paid over to the Term Collateral Agent for the benefit of the Term Secured Parties in the
same form as received, with any necessary endorsements or as a court of competent jurisdiction may
otherwise direct. The Term Collateral Agent is hereby authorized to make any such endorsements as
agent for the ABL Collateral Agent, any such ABL Secured Parties, the Notes Collateral Agent or any
such Notes Secured Parties. This authorization is coupled with an interest and is irrevocable
until such time as this Agreement is terminated in accordance with its terms.




          (b) Following the Discharge of Term Obligations, so long as the Discharge of ABL Obligations
has not occurred, any TL Priority Collateral, cash proceeds thereof or non-cash proceeds received
by the Notes Collateral Agent or any Notes Secured Parties in connection with the exercise of any
right or remedy (including setoff) relating to the TL Priority Collateral in contravention of this
Agreement shall be segregated and held in trust and forthwith paid over to the ABL Collateral Agent
for the benefit of the ABL Secured Parties in the same form as received, with any necessary
endorsements or as a court of competent jurisdiction may otherwise direct. The ABL Collateral
Agent is hereby authorized to make any such endorsements as agent for the Notes Collateral Agent or
any such Notes Secured Parties. This authorization is coupled with an interest and is irrevocable
until such time as this Agreement is terminated in accordance with its terms.




          2.4. Other Agreements.




          (a) Releases by Term Collateral Agent.




          (i) If, in connection with:







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     (1) the exercise of any Term Collateral Agent’s remedies in respect of the TL Priority
Collateral provided for in Section 2.2(a), including any sale, lease, exchange, transfer or
other disposition of any such TL Priority Collateral; or




     (2) any sale, lease, exchange, transfer or other disposition of any TL Priority
Collateral permitted under the terms of the Term Documents, the ABL Documents and the Notes
Documents (whether or not an event of default thereunder, and as defined therein, has
occurred and is continuing),


the Term Collateral Agent, for itself or on behalf of any of the Term Secured Parties, releases any
of its Liens on any part of the TL Priority Collateral other than, in the case of clause (2) above,
(A) in connection with the Discharge of Term Obligations and (B) after the occurrence and during
the continuance of any event of default under the ABL Credit Agreement or the Indentures, then the
Liens, if any, of the ABL Collateral Agent, for itself or for the benefit of the ABL Secured
Parties and the Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties, on
such TL Priority Collateral (but not the Proceeds thereof, which shall be subject to the priorities
set forth in this Agreement) shall be automatically, unconditionally and simultaneously released
and the ABL Collateral Agent, for itself or on behalf of any such ABL Secured Parties, and the
Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties, promptly shall
execute and deliver to the Term Collateral Agent or such Grantor such termination statements,
releases and other documents as the Term Collateral Agent or such Grantor may request to
effectively confirm such release; provided that in the case of clause (a)(i) above, any
proceeds of such disposition shall be applied in accordance with this Agreement.




          (ii) Until the Discharge of Term Obligations occurs, the ABL Collateral Agent, for itself and
on behalf of the ABL Secured Parties and the Notes Collateral Agent, for itself and on behalf of
the Notes Secured Parties, hereby irrevocably constitute and appoint the Term Collateral Agent and
any officer or agent of the Term Collateral Agent, with full power of substitution, as its true and
lawful attorney in fact with full irrevocable power and authority in the place and stead of the ABL
Collateral Agent or the Notes Collateral Agent or such holder or in the Term Collateral Agent’s own
name, from time to time in the Term Collateral Agent’s discretion, for the purpose of carrying out
the terms of this Section 2.4(a) with respect to TL Priority Collateral, to take any and all
appropriate action and to execute any and all documents and instruments which may be necessary to
accomplish the purposes of this Section 2.4(a) with respect to TL Priority Collateral, including
any endorsements or other instruments of transfer or release.




          (iii) Until the Discharge of Term Obligations occurs, to the extent that the Term Secured
Parties (a) have released any Lien on TL Priority Collateral and any such Lien is later reinstated
or (b) obtain any new First Priority Liens on assets constituting TL Priority Collateral from
Grantors, then the ABL Secured Parties shall be granted a Second Priority Lien on any such TL
Priority Collateral and the Notes Secured Parties shall be granted a Third Priority Lien or any
such TL Priority Collateral.




          (iv) If, prior to the Discharge of Term Obligations, a subordination of the Term Collateral
Agent’s Lien on any TL Priority Collateral is permitted (or in good faith believed by the Term
Collateral Agent to be permitted) under the Term Credit Agreement and the ABL






-32-









 







Credit Agreement to another Lien permitted under the Term Credit Agreement, the ABL Credit
Agreement and the Indentures (a “Term Collateral Priority Lien”), then the Term Collateral
Agent is authorized to execute and deliver a subordination agreement with respect thereto in form
and substance satisfactory to it, and the ABL Collateral Agent, for itself and on behalf of the ABL
Secured Parties and the Notes Collateral Agent, for itself and on behalf of the Notes Secured
Parties, shall promptly execute and deliver to the Term Collateral Agent an identical subordination
agreement subordinating (x) the Liens of the ABL Collateral Agent for the benefit of (and on behalf
of) the ABL Secured Parties to such Term Collateral Priority Lien and (y) the Liens of the Notes
Collateral Agent for the benefit of (and on behalf of) the Notes Secured Parties to such Term
Collateral Priority Lien.




          (b) Releases by ABL Collateral Agent.




          (i) Following the Discharge of Term Obligations, but prior to the Discharge of ABL
Obligations, if, in connection with:





     (1) the exercise of any ABL Collateral Agent’s remedies in respect of the TL Priority
Collateral provided for in Section 2.2(b), including any sale, lease, exchange, transfer or
other disposition of any such TL Priority Collateral; or




     (2) any sale, lease, exchange, transfer or other disposition of any TL Priority
Collateral permitted under the terms of the ABL Documents and the Notes Documents (whether
or not an event of default thereunder, and as defined therein, has occurred and is
continuing),


the ABL Collateral Agent, for itself or on behalf of any of the ABL Secured Parties, releases any
of its Liens on any part of the TL Priority Collateral other than, in the case of clause (2) above,
(A) in connection with the Discharge of ABL Obligations and (B) after the occurrence and during the
continuance of any event of default under the Indentures, then the Liens, if any, of the Notes
Collateral Agent, for itself or for the benefit of the Notes Secured Parties, on such TL Priority
Collateral (but not the Proceeds thereof, which shall be subject to the priorities set forth in
this Agreement) shall be automatically, unconditionally and simultaneously released and the Notes
Collateral Agent, for itself or on behalf of any such Notes Secured Parties, promptly shall execute
and deliver to the ABL Collateral Agent or such Grantor such termination statements, releases and
other documents as the ABL Collateral Agent or such Grantor may request to effectively confirm such
release; provided that in the case of clause (b)(i) above, any proceeds of such disposition
shall be applied in accordance with this Agreement.




          (ii) Following the Discharge of Term Obligations and until the Discharge of ABL Obligations
occurs, the Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties, hereby
irrevocably constitutes and appoints the ABL Collateral Agent and any officer or agent of the ABL
Collateral Agent, with full power of substitution, as its true and lawful attorney in fact with
full irrevocable power and authority in the place and stead of the Notes Collateral Agent or such
holder or in the ABL Collateral Agent’s own name, from time to time in the ABL Collateral Agent’s
discretion, for the purpose of carrying out the terms of this Section 2.4(b) with respect to TL
Priority Collateral, to take any and all appropriate action and to execute any and all documents
and instruments which may be necessary to accomplish the purposes of






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this Section 2.4(b) with respect to TL Priority Collateral, including any endorsements or
other instruments of transfer or release.




          (iii) Following the Discharge of Term Obligations and until the Discharge of ABL Obligations
occurs, to the extent that the ABL Secured Parties (a) have released any Lien on TL Priority
Collateral and any such Lien is later reinstated or (b) obtain any new Second Priority Liens on
assets constituting TL Priority Collateral from Grantors, then the Notes Secured Parties shall be
granted a Third Priority Lien on any such TL Priority Collateral.




          (iv) If, prior to the Discharge of ABL Obligations, a subordination of the ABL Collateral
Agent’s Lien on any TL Priority Collateral is permitted (or in good faith believed by the ABL
Collateral Agent to be permitted) under the ABL Credit Agreement to another Lien permitted under
the ABL Credit Agreement and the Indentures (a “Subsequent Term Collateral Priority Lien”),
then the ABL Collateral Agent is authorized to execute and deliver a subordination agreement with
respect thereto in form and substance satisfactory to it, and the Notes Collateral Agent, for
itself and on behalf of the Notes Secured Parties, shall promptly execute and deliver to the ABL
Collateral Agent an identical subordination agreement subordinating the Liens of the Notes
Collateral Agent for the benefit of (and on behalf of) the Notes Secured Parties to such Subsequent
Term Collateral Priority Lien.




          (c) Insurance. Unless and until the Discharge of Term Obligations has occurred, the
Term Collateral Agent and the Term Secured Parties shall have the sole and exclusive right, subject
to the rights of the Grantors under the Term Documents, to adjust settlement for any insurance
policy covering the TL Priority Collateral in the event of any loss thereunder and to approve any
award granted in any condemnation or similar proceeding (or any deed in lieu of condemnation) in
respect of the TL Priority Collateral. Following the Discharge of Term Obligations, unless and
until the Discharge of ABL Obligations has occurred, the ABL Collateral Agent and the ABL Secured
Parties shall have the sole and exclusive right, subject to the rights of the Grantors under the
ABL Documents, to adjust settlement for any insurance policy covering the TL Priority Collateral in
the event of any loss thereunder and to approve any award granted in any condemnation or similar
proceeding (or any deed in lieu of condemnation) in respect of the TL Priority Collateral.




          (d) Amendments to ABL Security Documents or Notes Security Documents.




          (i) Without the prior written consent of the Term Collateral Agent, no ABL Security Document
or Notes Security Document may be amended, supplemented or otherwise modified or entered into to
the extent such amendment, supplement or modification, or the terms of any new ABL Document or new
Notes Document, would contravene the provisions of this Agreement. Grantors agree that each ABL
Security Document and Notes Security Document shall include the following language (with any
necessary modifications to give effect to applicable definitions) (or language to similar effect
approved by the Term Collateral Agent):





“Notwithstanding anything herein to the contrary, the liens and security interests
granted to [the ABL Collateral Agent] [the Notes Collateral Agent] pursuant to this
Agreement in any TL Priority Collateral and the exercise of any right or remedy by
[the ABL Collateral Agent] [the Notes Collateral Agent] with respect to



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any TL Priority Collateral hereunder are subject to the provisions of the
Intercreditor Agreement, dated as of [April 12, 2006] [March 18, 2009] (as amended,
restated, supplemented or otherwise modified from time to time, the
“Intercreditor Agreement”), among DHM HOLDING COMPANY, INC., a Delaware
corporation, DOLE HOLDING COMPANY, LLC, a Delaware limited liability company, DOLE
FOOD COMPANY, INC., a Delaware corporation (the “Company”), the other
GRANTORS from time to time party thereto, DEUTSCHE BANK AG NEW YORK BRANCH, as ABL
Collateral Agent, DBAG, as Term Collateral Agent, U.S. BANK NATIONAL ASSOCIATION, as
Notes Collateral Agent and certain other persons party or that may become party
thereto from time to time. In the event of any conflict between the terms of the
Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement
shall govern and control.”


In addition, Grantors agree that (x) each mortgage in favor of the ABL Secured Parties or the Notes
Secured Parties covering any TL Priority Collateral shall contain such other language as the Term
Collateral Agent may reasonably request to reflect the subordination of such mortgage to the
mortgage in favor of the Term Secured Parties covering such TL Priority Collateral and (y) each
mortgage in favor of the Notes Secured Parties covering any TL Priority Collateral shall contain
such other language as the ABL Collateral Agent may reasonably request to reflect the subordination
of such mortgage to the mortgage in favor of the ABL Secured Parties covering such TL Priority
Collateral.




          (ii) In the event any Term Collateral Agent or the Term Secured Parties and the relevant
Grantor enter into any amendment, waiver or consent in respect of any of the Term Security
Documents for the purpose of adding to, or deleting from, or waiving or consenting to any
departures from any provisions of, any Term Security Document or changing in any manner the rights
of the Term Collateral Agent, such Term Secured Parties, the Company or any other Grantor
thereunder, in each case with respect to or relating to the TL Priority Collateral, then such
amendment, waiver or consent shall apply automatically to any comparable provision of (x) the
Comparable ABL Security Document without the consent of the ABL Collateral Agent or the ABL Secured
Parties and without any action by the ABL Collateral Agent, the Company or any other Grantor and
(y) the Comparable Notes Security Document without the consent of the Notes Collateral Agent or the
Notes Secured Parties and without any action by the Notes Collateral Agent, the Company or any
other Grantor, provided, that (A) no such amendment, waiver or consent shall have the
effect of (i) removing assets that constitute TL Priority Collateral subject to the Lien of the ABL
Security Documents or the Notes Security Documents, except to the extent that a release of such
Lien is permitted or required by Section 2.4(a) and provided that there is a corresponding
release of such Lien securing the Term Obligations, (ii) imposing duties on the ABL Collateral
Agent or the Notes Collateral Agent without its consent or (iii) permitting other liens on the TL
Priority Collateral not permitted under the terms of the ABL Documents, the Notes Documents or
Section 2.5 and (B) notice of such amendment, waiver or consent shall have been given to the ABL
Collateral Agent and the Notes Collateral Agent within ten (10) Business Days after the effective
date of such amendment, waiver or consent.




          (iii) Following the Discharge of Term Obligations, in the event any ABL Collateral Agent or
the ABL Secured Parties and the relevant Grantor enter into any amendment,






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waiver or consent in respect of any of the ABL Security Documents for the purpose of adding
to, or deleting from, or waiving or consenting to any departures from any provisions of, any ABL
Security Document or changing in any manner the rights of the ABL Collateral Agent, such ABL
Secured Parties, the Company or any other Grantor thereunder, in each case with respect to or
relating to the TL Priority Collateral, then such amendment, waiver or consent shall apply
automatically to any comparable provision of the Comparable Notes Security Document without the
consent of the Notes Collateral Agent or the Notes Secured Parties and without any action by the
Notes Collateral Agent, the Company or any other Grantor, provided, that (A) no such
amendment, waiver or consent shall have the effect of (i) removing assets that constitute TL
Priority Collateral subject to the Lien of the Notes Security Documents, except to the extent that
a release of such Lien is permitted or required by Section 2.4(b) and provided that there
is a corresponding release of such Lien securing the ABL Obligations, (ii) imposing duties on the
Notes Collateral Agent without its consent or (iii) permitting other liens on the TL Priority
Collateral not permitted under the terms of the Notes Documents or Section 2.5 and (B) notice of
such amendment, waiver or consent shall have been given to the Notes Collateral Agent within ten
(10) Business Days after the effective date of such amendment, waiver or consent.




          (e) Rights As Unsecured Creditors. Except as otherwise set forth in Section 2.1 and
the Notes Documents, the ABL Collateral Agent, the ABL Secured Parties, the Notes Collateral Agent
and the Notes Secured Parties may exercise rights and remedies as unsecured creditors against the
Company or any other Grantor that has guaranteed the ABL Obligations or the Notes Obligations in
accordance with the terms of the ABL Documents, the Notes Documents and applicable law. Except as
otherwise set forth in Section 2.1, nothing in this Agreement shall prohibit the receipt by the ABL
Collateral Agent, any ABL Secured Parties, the Notes Collateral Agent or any Notes Secured Parties
of the required payments of interest, principal and other amounts in respect of the ABL Obligations
and Notes Obligations, as applicable, so long as such receipt is not the direct or indirect result
of the exercise by the ABL Collateral Agent, any ABL Secured Parties, the Notes Collateral Agent or
any Notes Secured Parties of rights or remedies as a secured creditor (including setoff) in respect
of the TL Priority Collateral in contravention of this Agreement or enforcement in contravention of
this Agreement of any Lien held by any of them.




          (f) Bailee for Perfection.




          (i) The Term Collateral Agent agrees to hold that part of the TL Priority Collateral that is
in its possession or control (or in the possession or control of its agents or bailees) to the
extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such TL
Priority Collateral being the “Pledged TL Priority Collateral”) as collateral agent for the
Term Secured Parties and as bailee for and, with respect to any collateral that cannot be perfected
in such manner, as agent for, the ABL Collateral Agent (on behalf of the ABL Secured Parties) and
the Notes Collateral Agent (on behalf of the Notes Secured Parties) and any assignee thereof and
act as such agent under all control agreements relating to the Pledged TL Priority Collateral, in
each case solely for the purpose of perfecting the security interest granted under the Term
Documents, the ABL Documents and the Notes Documents, as applicable, subject to the terms and
conditions of this Section 2.4(f). Following the Discharge of Term Obligations, the ABL Collateral
Agent agrees to hold the Pledged TL Priority Collateral as collateral agent for the ABL Secured
Parties and as bailee for and, with respect to any collateral that cannot be per-






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fected in such manner, as agent for, the Notes Collateral Agent (on behalf of the Notes
Secured Parties) and any assignee thereof solely for the purpose of perfecting the security
interest granted under the ABL Documents and the Notes Documents, as applicable, subject to the
terms and conditions of this Section 2.4(f). As security for the payment and performance in full
of all the Notes Obligations and ABL Obligations each Grantor hereby grants to the Term Collateral
Agent for the benefit of the Notes Secured Parties and the ABL Secured Parties a lien on and
security interest in all of the right, title and interest of such Grantor, in and to and under the
Pledged TL Priority Collateral wherever located and whether now existing or hereafter arising or
acquired from time to time. As security for the payment and performance in full of all the Notes
Obligations, each Grantor hereby grants to the ABL Collateral Agent for the benefit of the Notes
Secured Parties a lien on and security interest in all of the right, title and interest of such
Grantor, in and to and under the Pledged TL Priority Collateral wherever located and whether now
existing or hereafter arising or acquired from time to time.




          (ii) Subject to the terms of this Agreement, (x) until the Discharge of Term Obligations has
occurred, the Term Collateral Agent shall be entitled to deal with the Pledged TL Priority
Collateral in accordance with the terms of the Term Documents as if the Liens of the ABL Collateral
Agent under the ABL Security Documents and the Liens of the Notes Collateral Agent under the Notes
Security Documents did not exist and (y) following the Discharge of Term Obligations and until the
Discharge of ABL Obligations has occurred, the ABL Collateral Agent shall be entitled to deal with
the Pledged TL Priority Collateral in accordance with the terms of the ABL Documents as if the
Liens of the Notes Collateral Agent under the Notes Security Documents did not exist. The rights
of the ABL Collateral Agent and the Notes Collateral Agent shall at all times be subject to the
terms of this Agreement and to the Term Collateral Agent’s rights under the Term Documents.




          (iii) The Term Collateral Agent shall have no obligation whatsoever to any Term Secured Party,
the ABL Collateral Agent, any ABL Secured Party, the Notes Collateral Agent or any Notes Secured
Party to ensure that the Pledged TL Priority Collateral is genuine or owned by any of the Grantors
or to preserve rights or benefits of any Person except as expressly set forth in this Section
2.4(f). The duties or responsibilities of the Term Collateral Agent under this Section 2.4(f)
shall be limited solely to holding the Pledged TL Priority Collateral as bailee or agent in
accordance with this Section 2.4(f). The ABL Collateral Agent shall have no obligation whatsoever
to any ABL Secured Party, the Notes Collateral Agent or any Notes Secured Party to ensure that the
Pledged TL Priority Collateral is genuine or owned by any of the Grantors or to preserve rights or
benefits of any Person except as expressly set forth in this Section 2.4(f). The duties or
responsibilities of the ABL Collateral Agent under this Section 2.4(f) shall be limited solely to
holding the Pledged TL Priority Collateral as bailee or agent in accordance with this Section
2.4(f).




          (iv) The Term Collateral Agent acting pursuant to this Section 2.4(f) shall not have by reason
of the Term Security Documents, the ABL Security Documents, the Notes Security Documents, this
Agreement or any other document a fiduciary relationship in respect of any Term Secured Party, the
ABL Collateral Agent, any ABL Secured Party, the Notes Collateral Agent or any Notes Secured Party.
The ABL Collateral Agent acting pursuant to this Section 2.4(f) shall not have by reason of the
ABL Security Documents, the Notes Security Documents,






-37-









 







this Agreement or any other document a fiduciary relationship in respect of any ABL Secured
Party, the Notes Collateral Agent or any Notes Secured Party.




          (v) Upon the Discharge of Term Obligations under the Term Documents to which the Term
Collateral Agent is a party, the Term Collateral Agent shall deliver or cause to be delivered the
remaining Pledged TL Priority Collateral (if any) in its possession or in the possession of its
agents or bailees, together with any necessary endorsements, first, to the ABL Collateral Agent to
the extent ABL Obligations remain outstanding, second, to the Notes Collateral Agent to the extent
Notes Obligations remain outstanding and third, to the applicable Grantor to the extent no Term
Obligations, ABL Obligations or Notes Obligations remain outstanding (in each case, so as to allow
such Person to obtain control of such Pledged TL Priority Collateral) and will cooperate with the
ABL Collateral Agent or Notes Collateral Agent, as applicable, in assigning (without recourse to or
warranty by the Term Collateral Agent or any Term Secured Party or agent or bailee thereof) control
over any other Pledged TL Priority Collateral under its control. The Term Collateral Agent further
agrees to take all other action reasonably requested by such Person in connection with such Person
obtaining a first priority interest in the Pledged TL Priority Collateral or as a court of
competent jurisdiction may otherwise direct. Following the Discharge of Term Obligations and upon
the Discharge of ABL Obligations under the ABL Documents to which the ABL Collateral Agent is a
party, the ABL Collateral Agent shall deliver or cause to be delivered the remaining Pledged TL
Priority Collateral (if any) in its possession or in the possession of its agents or bailees,
together with any necessary endorsements, first, to the Notes Collateral Agent to the extent Notes
Obligations remain outstanding, and second, to the applicable Grantor to the extent no ABL
Obligations or Notes Obligations remain outstanding (in each case, so as to allow such Person to
obtain control of such Pledged TL Priority Collateral) and will cooperate with the Notes Collateral
Agent in assigning (without recourse to or warranty by the ABL Collateral Agent or any ABL Secured
Party or agent or bailee thereof) control over any other Pledged TL Priority Collateral under its
control. The ABL Collateral Agent further agrees to take all other action reasonably requested by
such Person in connection with such Person obtaining a first priority interest in the Pledged TL
Priority Collateral or as a court of competent jurisdiction may otherwise direct.




          (vi) Notwithstanding anything to the contrary herein, if, for any reason, any ABL Obligations
remain outstanding upon the Discharge of Term Obligations, all rights of the Term Collateral Agent
hereunder and under the Term Security Documents, the ABL Security Documents or the Notes Security
Documents (1) with respect to the delivery and control of any part of the TL Priority Collateral,
and (2) to direct, instruct, vote upon or otherwise influence the maintenance or disposition of
such TL Priority Collateral, shall immediately, and (to the extent permitted by law) without
further action on the part of either of the Notes Collateral Agent, the ABL Collateral Agent or the
Term Collateral Agent, pass to the ABL Collateral Agent, who shall thereafter hold such rights for
the benefit of the ABL Secured Parties and as bailee for and, with respect to any collateral that
cannot be perfected in such manner, as agent for, the Notes Secured Parties. Each of the Term
Collateral Agent and the Grantors agrees that it will, if any ABL Obligations or Notes Obligations
remain outstanding upon the Discharge of Term Obligations, take any other action required by any
law or reasonably requested by the ABL Collateral Agent or the Notes Collateral Agent, in
connection with the ABL Collateral Agent’s establishment and perfection of a First Priority
security interest in the TL Priority Collateral and the Notes Collateral






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Agent’s establishment and perfection of a Second Priority security interest in the TL Priority
Collateral.




          (vii) Notwithstanding anything to the contrary contained herein, if for any reason, prior to
the Discharge of the ABL Obligations, the Term Collateral Agent or the Notes Collateral Agent
acquires possession of any Pledged ABL Priority Collateral, the Term Collateral Agent or the Notes
Collateral Agent shall hold same as bailee and/or agent to the same extent as is provided in the
preceding clause (i) with respect to Pledged TL Priority Collateral, provided that as soon
as is practicable the Term Collateral Agent or the Notes Collateral Agent shall deliver or cause to
be delivered such Pledged ABL Priority Collateral to the ABL Collateral Agent in a manner otherwise
consistent with the requirements of the preceding clause (v).




          (g) When Discharge of Term Obligations Deemed to Not Have Occurred. Notwithstanding
anything to the contrary herein, if at any time after the Discharge of Term Obligations has
occurred (or concurrently therewith) the Company or any other Grantor immediately thereafter (or
concurrently therewith) enters into any Permitted Refinancing of any Term Obligations, then such
Discharge of Term Obligations shall automatically be deemed not to have occurred for all purposes
of this Agreement (other than with respect to any actions taken prior to the date of such
designation as a result of the occurrence of such first Discharge of Term Obligations), and the
obligations under the Permitted Refinancing shall automatically be treated as Term Obligations
(together with Interest Rate Protection Agreements and Other Hedging Agreements on the basis
provided in the definition of “Term Documents” contained herein) for all purposes of this
Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set
forth herein, the term “Term Credit Agreement” shall be deemed appropriately modified to refer to
such Permitted Refinancing and the Term Collateral Agent under such Term Documents shall be a Term
Collateral Agent for all purposes hereof and the new secured parties under such Term Documents
(together with Secured Hedge Counterparties as provided herein) shall automatically be treated as
Term Secured Parties for all purposes of this Agreement. Upon receipt of a notice stating that the
Company or any other Grantor has entered into a new Term Document in respect of a Permitted
Refinancing of Term Obligations (which notice shall include the identity of the new collateral
agent, such agent, the “New Term Agent”), and delivery by the New Term Agent of an
Intercreditor Agreement Joinder, the ABL Collateral Agent and the Notes Collateral Agent shall
promptly (i) enter into such documents and agreements (including amendments or supplements to this
Agreement) as the Company or such New Term Agent shall reasonably request in order to provide to
the New Term Agent the rights contemplated hereby, in each case consistent in all material respects
with the terms of this Agreement and (ii) deliver to the New Term Agent any Pledged TL Priority
Collateral held by the ABL Collateral Agent or the Notes Collateral Agent together with any
necessary endorsements (or otherwise allow the New Term Agent to obtain control of such Pledged TL
Priority Collateral). The New Term Agent shall agree to be bound by the terms of this Agreement.
If the new Term Obligations under the new Term Documents are secured by assets of the Grantors of
the type constituting TL Priority Collateral that do not also secure the ABL Obligations and the
Notes Obligations, then the ABL Obligations shall be secured at such time by a Second Priority Lien
on such assets to the same extent provided in the ABL Security Documents with respect to the other
TL Priority Collateral and the Notes Obligations shall be secured at such time by a Third Priority
Lien on such assets to the same extent provided in the Notes Security Documents with respect to the
other TL Priority Collateral. If the new Term Obligations under the new Term Documents are secured
by assets of







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the Grantors of the type constituting ABL Priority Collateral that do not also secure the ABL
Obligations and the Notes Obligations, then the ABL Obligations shall be secured at such time by a
First Priority Lien on such assets to the same extent provided in the ABL Security Documents with
respect to the other ABL Priority Collateral and the Notes Obligations shall be secured at such
time by a Third Priority Lien on such assets to the same extent provided in the Notes Security
Documents with respect to the other ABL Priority Collateral.




          (h) Option to Purchase Term Obligations.




          (i) Without prejudice to the enforcement of remedies by the Term Collateral Agent and the Term
Secured Parties, any Person or Persons (in each case who must meet all eligibility standards
contained in all relevant Term Documents) at any time or from time to time designated by the
holders of more than 50% in aggregate outstanding principal amount of the ABL Obligations under the
ABL Credit Agreement as being entitled to exercise all default purchase options as to the Term
Obligations then outstanding (an “Eligible ABL Purchaser”) shall have the right to purchase
by way of assignment (and shall thereby also assume all commitments and duties of the Term Secured
Parties), at any time during the exercise period described in clause (iii) below of this Section
2.4(h), all, but not less than all, of the Term Obligations (other than the Term Obligations of a
Defaulting Term Secured Party (as defined below)), including all principal of and accrued and
unpaid interest and fees on and all prepayment or acceleration penalties and premiums in respect of
all Term Obligations outstanding at the time of purchase; provided that at the time of (and
as a condition to) any purchase pursuant to this Section 2.4(h), all commitments pursuant to any
then outstanding Term Credit Agreement shall have terminated and all Hedge Agreements constituting
Term Documents also shall have been terminated in accordance with their terms. Any purchase
pursuant to this Section 2.4(h)(i) shall be made as follows:





     (1) for (x) a purchase price equal to the sum of (A)(I) in the case of all loans,
advances or other similar extensions of credit that constitute Term Obligations (including
unreimbursed amounts drawn in respect of letters of credit and bank guaranties, but
excluding the undrawn amount of then outstanding letters of credit and bank guaranties),
100% of the principal amount thereof and all accrued and unpaid interest thereon through the
date of purchase (without regard, however, to any acceleration prepayment penalties or
premiums other than customary breakage costs) and (II) in the case of all credit-linked
deposits (or equivalents) related to the foregoing Obligations set forth in the preceding
clause (I) (which credit-linked deposits, for the avoidance of doubt, will continue to be
held by the applicable deposit bank for application pursuant to the terms of the Term Credit
Agreement and it being understood and agreed that upon any drawing under any letter of
credit or any bank guaranty, such deposit bank and the Term Administrative Agent shall apply
the credit-linked deposits deposited with the deposit bank to repay the respective unpaid
drawing or unreimbursed payment, as the case may be, in accordance with the terms of the
Term Credit Agreement), 100% of the aggregate amount of such credit-linked deposits and all
accrued and unpaid interest thereon through the date of purchase, (B) in the case of any
Hedge Agreement, the aggregate amount then owing to each Secured Hedge Counterparty (which
is a Term Secured Party) thereunder pursuant to the terms of the respective Hedge Agreement,
including without limitation all amounts owing to such Secured Hedge Counterparty (which is
a Term Secured Party) as a result of the



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termination (or early termination) thereof (in each case, to the extent of its interest
as a Term Secured Party) plus (C) all accrued and unpaid fees, expenses, indemnities and
other amounts through the date of purchase; and (y) an obligation on the part of the
respective Eligible ABL Purchasers (which shall be expressly provided in the assignment
documentation described below) to reimburse each issuing lender and bank guaranty issuer
(or, any Term Secured Party required to pay same) for all amounts thereafter drawn with
respect to any letters of credit and any bank guaranties constituting Term Obligations which
remain outstanding after the date of any purchase pursuant to this Section 2.4 (except to
the extent of the credit-linked deposits actually held at such time by the deposit bank
under the Term Credit Agreement which are required, in accordance with the provisions of the
Term Credit Agreement, to be applied to pay same);





     (2) with the purchase price described in preceding clause (i)(1)(x) payable in cash on
the date of purchase against transfer to the respective Eligible ABL Purchaser or Eligible
ABL Purchasers (without recourse and without any representation or warranty whatsoever,
whether as to the enforceability of any Term Obligation or the validity, enforceability,
perfection, priority or sufficiency of any Lien securing, or guarantee or other supporting
obligation for, any Term Obligation or as to any other matter whatsoever, except the
representation and warranty that the transferor owns free and clear of all Liens and
encumbrances (other than participation interests not prohibited by the Term Credit
Agreement, in which case the purchase price described in preceding clause (i)(1)(x) shall be
appropriately adjusted so that the Eligible ABL Purchaser or Eligible ABL Purchasers do not
pay amounts represented by any participation interest which remains in effect), and has the
right to convey, whatever claims and interests it may have in respect of the Term
Obligations); provided that the purchase price in respect of any outstanding letter
of credit that remains undrawn on the date of purchase shall be payable in cash as and when
such letter of credit is drawn upon (i) first, from the credit-linked deposits which then
remain on deposit in accordance with the terms of the Term Credit Agreement (as described in
clause (1)(A)(II) above), until the amounts contained therein have been exhausted, and (ii)
thereafter, directly by the respective Eligible ABL Purchaser or Eligible ABL Purchasers;




     (3) with the purchase price described in preceding clause (i)(1)(x) accompanied by a
waiver by the ABL Collateral Agent (on behalf of itself and the other ABL Secured Parties)
of all claims arising out of this Agreement and the transactions contemplated hereby as a
result of exercising the purchase option contemplated by this Section 2.4(h);




     (4) with all amounts payable to the various Term Secured Parties in respect of the
assignments described above to be distributed to them by the Term Collateral Agent in
accordance with their respective holdings of the various Term Obligations; and




     (5) with such purchase to be made pursuant to assignment documentation in form and
substance reasonably satisfactory to, and prepared by counsel for, the Term Collateral Agent
(with the cost of such counsel to be paid by the Grantors or, if the Grantors do not make
such payment, by the respective Eligible ABL Purchaser or Eligible ABL Purchasers, who shall
have the right to obtain reimbursement of same from the



-41-









 






Grantors); it being understood and agreed that the Term Collateral Agent and each other
Term Secured Party shall retain all rights to indemnification as provided in the relevant
Term Documents for all periods prior to any assignment by them pursuant to the provisions of
this Section 2.4(h). The relevant assignment documentation shall also provide that, if for
any reason (other than the gross negligence or willful misconduct of the Term Collateral
Agent (as determined by a court of competent jurisdiction in a final and non-appealable
judgment)), the amount of credit-linked deposits held by the deposit bank under the terms of
the Term Documents is at any time less than the full amounts owing with respect to any
letter of credit and/or any bank guaranty described above (including facing, fronting,
facility and similar fees) then the respective Eligible ABL Purchaser or Eligible ABL
Purchasers shall promptly reimburse the Term Collateral Agent (who shall pay the respective
issuing lender and/or bank guaranty issuer, as the case may be) the amount of deficiency.



          (ii) The right to exercise the purchase option described in Section 2.4(h)(i) above shall be
exercisable and legally enforceable upon at least ten (10) Business Days’ prior written notice of
exercise (which notice, once given, shall be irrevocable and fully binding on the respective
Eligible ABL Purchaser or Eligible ABL Purchasers) given to the Term Collateral Agent by an
Eligible ABL Purchaser. Neither the Term Collateral Agent nor any Term Secured Party shall have
any disclosure obligation to any Eligible Term Purchaser, the ABL Collateral Agent or any ABL
Secured Party in connection with any exercise of such purchase option.




          (iii) The right to purchase the Term Obligations as described in this Section 2.4(h) may be
exercised (by giving the irrevocable written notice described in preceding clause (ii)) during the
period that (1) begins on the date occurring three Business Days after the first to occur of (x)
the date of the acceleration of the final maturity of the loans under the Term Credit Agreement,
(y) the occurrence of the final maturity of the loans under the Term Credit Agreement or (z) the
occurrence of an Insolvency or Liquidation Proceeding with respect to the Company or any other
Grantor which constitutes an event of default under the Term Credit Agreement (in each case, so
long as the acceleration, failure to pay amounts due at final maturity or such Insolvency or
Liquidation Proceeding constituting an event of default has not been rescinded or cured within such
10 Business Day period, and so long as any unpaid amounts constituting Term Obligations remain
owing); provided that if there is any failure to meet the condition described in the
proviso of preceding clause (i) hereof, the aforementioned date shall be extended until the first
date upon which such condition is satisfied, and (2) ends on the 90th day after the start of the
period described in clause (1) above.




          (iv) The obligations of the Term Secured Parties to sell their respective Term Obligations
under this Section 2.4(h) are several and not joint and several. To the extent any Term Secured
Party breaches its obligation to sell its Term Obligations under this Section 2.4(h) (a
"Defaulting Term Secured Party”), nothing in this Section 2.4(h) shall be deemed to require
the Term Collateral Agent or any Term Secured Party to purchase such Defaulting Term Secured
Party’s Term Obligations for resale to the holders of ABL Obligations and in all cases, the Term
Collateral Agent and each Term Secured Party complying with the terms of this Section 2.4(h) shall
not be deemed to be in default of this Agreement or otherwise be deemed liable for any action or
inaction of any Defaulting Term Secured Party; provided that nothing in this clause (iv)
shall require any Eligible ABL Purchaser to purchase less than all of the Term Obligations.







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          (v) Each Grantor irrevocably consents to any assignment effected to one or more Eligible ABL
Purchasers pursuant to this Section 2.4(h) (so long as they meet all eligibility standards
contained in all relevant Term Documents, other than obtaining the consent of any Grantor to an
assignment to the extent required by such Term Documents) for purposes of all Term Documents and
hereby agrees that no further consent from such Grantor shall be required.




          2.5. Insolvency or Liquidation Proceedings.




          (a) Finance and Sale Issues.




          (i) Until the Discharge of Term Obligations has occurred, if the Company or any other Grantor
shall be subject to any Insolvency or Liquidation Proceeding and the Term Collateral Agent shall
desire to permit the use of cash collateral constituting TL Priority Collateral on which the Term
Collateral Agent or any other creditor has a Lien or to permit the Company or any other Grantor to
obtain financing, whether from the Term Secured Parties or any other entity under Section 363 or
Section 364 of the Bankruptcy Code or any similar Bankruptcy Law (each, a “DIP Financing”),
then the ABL Collateral Agent, on behalf of itself and the ABL Secured Parties and the Notes
Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that they will raise no
objection to such use of cash collateral constituting TL Priority Collateral or to the fact that
such DIP Financing may be granted Liens on the TL Priority Collateral and will not request adequate
protection or any other relief in connection therewith (except, as expressly, agreed by the Term
Collateral Agent or to the extent permitted by Section 2.5(c)) and, to the extent the Liens on the
TL Priority Collateral securing the Term Obligations are subordinated or pari passu
with the Liens on the TL Priority Collateral securing such DIP Financing, the ABL Collateral Agent
and the Notes Collateral Agent will subordinate their Liens in the TL Priority Collateral to the
Liens securing such DIP Financing (and all obligations relating thereto). The ABL Collateral
Agent, on behalf of the ABL Secured Parties, and the Notes Collateral Agent, on behalf of itself
and the Notes Secured Parties, agree that they will not raise any objection or oppose a sale or
other disposition of any TL Priority Collateral free and clear of its Liens (subject to attachment
of proceeds with respect to the Second Priority Lien on the TL Priority Collateral in favor of the
ABL Collateral Agent and the Third Priority Lien on the TL Priority Collateral in favor of the
Notes Collateral Agent in the same order and manner as otherwise set forth herein) or other claims
under Section 363 of the Bankruptcy Code if the Term Secured Parties have consented to such sale or
disposition of such assets.




          (ii) Following the Discharge of Term Obligations and until the Discharge of ABL Obligations
has occurred, if the Company or any other Grantor shall be subject to any Insolvency or Liquidation
Proceeding and the ABL Collateral Agent shall desire to permit the Company or any other Grantor to
obtain a DIP Financing, then the Notes Collateral Agent, on behalf of itself and the Notes Secured
Parties, agrees that it will raise no objection to such use of cash collateral constituting TL
Priority Collateral or to the fact that such DIP Financing may be granted Liens on the TL Priority
Collateral and will not request adequate protection or any other relief in connection therewith
(except, as expressly, agreed by the ABL Collateral Agent or to the extent permitted by Section
2.5(c)) and, to the extent the Liens on the TL Priority Collateral securing the ABL Obligations are
subordinated or pari passu with the Liens on the TL Priority Collateral securing
such DIP Financing, the Notes Collateral Agent will subordinate its Liens in the TL Priority
Collateral to the Liens securing such DIP Financing (and all obligations relating






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thereto). Following the Discharge of Term Obligations, the Notes Collateral Agent, on behalf
of the Notes Secured Parties, agrees that it will not raise any objection or oppose a sale or other
disposition of any TL Priority Collateral free and clear of its Liens (subject to attachment of
proceeds with respect to the Third Priority Lien on the TL Priority Collateral in favor of the
Notes Collateral Agent in the same order and manner as otherwise set forth herein) or other claims
under Section 363 of the Bankruptcy Code if the ABL Secured Parties have consented to such sale or
disposition of such assets.




          (b) Relief from the Automatic Stay. Until the Discharge of Term Obligations has
occurred, the ABL Collateral Agent, on behalf of itself and the ABL Secured Parties and the Notes
Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that none of them shall
seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding
in respect of the TL Priority Collateral without the prior written consent of the Term Collateral
Agent. Following the Discharge of Term Obligations, until the Discharge of ABL Obligations has
occurred, the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees
that none of them shall seek relief from the automatic stay or any other stay in any Insolvency or
Liquidation Proceeding in respect of the TL Priority Collateral without the prior written consent
of the ABL Collateral Agent.




          (c) Adequate Protection.




          (i) The ABL Collateral Agent, on behalf of itself and the ABL Secured Parties and the Notes
Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that none of them shall
contest (or support any other person contesting) (i) any request by the Term Collateral Agent or
the Term Secured Parties for adequate protection with respect to any TL Priority Collateral or (ii)
any objection by the Term Collateral Agent or the Term Secured Parties to any motion, relief,
action or proceeding based on the Term Collateral Agent or the Term Secured Parties claiming a lack
of adequate protection with respect to the TL Priority Collateral. Notwithstanding the foregoing
provisions in this Section 2.5(c), in any Insolvency or Liquidation Proceeding, (A) if the Term
Secured Parties (or any subset thereof) are granted adequate protection in the form of additional
collateral in the nature of assets constituting TL Priority Collateral in connection with any DIP
Financing, then the ABL Collateral Agent, on behalf of itself or any of the ABL Secured Parties and
the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, may seek or request
adequate protection in the form of a Lien on such additional collateral, which Lien of the ABL
Collateral Agent will be subordinated to the Liens securing the Term Obligations and such DIP
Financing (and all obligations relating thereto) on the same basis as the other Liens on TL
Priority Collateral securing the ABL Obligations are so subordinated to the Term Obligations under
this Agreement and which Lien of the Notes Collateral Agent will be subordinated to the Liens
securing the Term Obligations, such DIP Financing (and all obligations relating thereto) and the
ABL Obligations on the same basis as the other Liens on TL Priority Collateral securing the Notes
Obligations are so subordinated to the Term Obligations and ABL Obligations under this Agreement,
and (B) in the event the ABL Collateral Agent, on behalf of itself and the ABL Secured Parties or
the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, seek or request
adequate protection in respect of TL Priority Collateral securing ABL Obligations or the Notes
Obligations, as applicable, and such adequate protection is granted in the form of additional
collateral in the nature of assets constituting TL Priority Collateral, then the ABL Collateral
Agent, on behalf of itself or any of the ABL Secured Parties and






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the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that the
Term Collateral Agent shall also be granted a senior Lien on such additional collateral as security
for the Term Obligations and for any such DIP Financing provided by the Term Secured Parties and
that any Lien on such additional collateral securing the ABL Obligations and the Notes Obligations
shall be subordinated to the Liens on such collateral securing the Term Obligations and any such
DIP Financing provided by the Term Secured Parties (and all obligations relating thereto) and to
any other Liens granted to the Term Secured Parties as adequate protection on the same basis as the
other Liens on TL Priority Collateral securing the ABL Obligations and the Notes Obligations are so
subordinated to such Term Obligations under this Agreement.




          (ii) Prior to the Discharge of ABL Obligations, the Notes Collateral Agent, on behalf of
itself and the Notes Secured Parties, agrees that none of them shall contest (or support any other
person contesting) (i) any request by the ABL Collateral Agent or the ABL Secured Parties for
adequate protection with respect to any TL Priority Collateral or (ii) any objection by the ABL
Collateral Agent or the ABL Secured Parties to any motion, relief, action or proceeding based on
the ABL Collateral Agent or the ABL Secured Parties claiming a lack of adequate protection with
respect to the TL Priority Collateral. Notwithstanding the foregoing provisions in this Section
2.5(c), in any Insolvency or Liquidation Proceeding, (A) if the ABL Secured Parties (or any subset
thereof) are granted adequate protection in the form of additional collateral in the nature of
assets constituting TL Priority Collateral in connection with any DIP Financing, then the Notes
Collateral Agent, on behalf of itself and the Notes Secured Parties, may seek or request adequate
protection in the form of a Lien on such additional collateral, which Lien will be subordinated to
the Liens securing the ABL Obligations and such DIP Financing (and all obligations relating
thereto) on the same basis as the other Liens on TL Priority Collateral securing the Notes
Obligations are so subordinated to the ABL Obligations under this Agreement, and (B) in the event
the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, seek or request
adequate protection in respect of TL Priority Collateral securing the Notes Obligations, and such
adequate protection is granted in the form of additional collateral in the nature of assets
constituting TL Priority Collateral, then the Notes Collateral Agent, on behalf of itself and the
Notes Secured Parties, agree that the ABL Collateral Agent shall also be granted a senior Lien on
such additional collateral as security for the ABL Obligations and for any such DIP Financing
provided by the ABL Secured Parties and that any Lien on such additional collateral securing the
Notes Obligations shall be subordinated to the Liens on such collateral securing the ABL
Obligations and any such DIP Financing provided by the ABL Secured Parties (and all obligations
relating thereto) and to any other Liens granted to the ABL Secured Parties as adequate protection
on the same basis as the other Liens on TL Priority Collateral securing the Notes Obligations are
so subordinated to such ABL Obligations under this Agreement.




          (d) No Waiver. Subject to the proviso in clause (ii) of Section 2.2(a), nothing
contained herein shall prohibit or in any way limit the Term Collateral Agent or any Term Secured
Party from objecting in any Insolvency or Liquidation Proceeding or otherwise to any action taken
by the ABL Collateral Agent, any of the ABL Secured Parties, the Notes Collateral Agent or any of
the Notes Secured Parties in respect of the TL Priority Collateral, including the seeking by the
ABL Collateral Agent, any ABL Secured Parties, the Notes Collateral Agent or any Notes Secured
Parties of adequate protection in respect thereof or the asserting by the ABL Collateral Agent, any
ABL Secured Parties, the Notes Collateral Agent or any Notes Secured Parties of any of its rights
and remedies under the ABL Documents, the Notes Documents or






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otherwise in respect thereof. Subject to the proviso in clause (ii) of Section 2.2(b),
nothing contained herein shall prohibit or in any way limit the ABL Collateral Agent or any ABL
Secured Party from objecting in any Insolvency or Liquidation Proceeding or otherwise to any action
taken by the Notes Collateral Agent or any of the Notes Secured Parties in respect of the TL
Priority Collateral, including the seeking by the Notes Collateral Agent or any Notes Secured
Parties of adequate protection in respect thereof or the asserting by the Notes Collateral Agent or
any Notes Secured Parties of any of its rights and remedies under the Notes Documents or otherwise
in respect thereof.




          (e) Reorganization Securities. If, in any Insolvency or Liquidation Proceeding, debt
obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor
are distributed, pursuant to a plan of reorganization or similar dispositive restructuring plan, on
account of Term Obligations, on account of ABL Obligations and on account of Notes Obligations,
then, to the extent the debt obligations distributed on account of the Term Obligations, on account
of the ABL Obligations and on account of Notes Obligations are secured by Liens upon the same
property, the provisions of this Agreement will survive the distribution of such debt obligations
pursuant to such plan and will apply with like effect to the Liens securing such debt obligations.




          (f) Post-Petition Interest.




          (i) None of the ABL Collateral Agent, any ABL Secured Party, the Notes Collateral Agent or any
Notes Secured Party shall oppose or seek to challenge any claim by the Term Collateral Agent or any
Term Secured Party for allowance in any Insolvency or Liquidation Proceeding of Term Obligations
consisting of post-petition interest, fees or expenses to the extent of the value of the Term
Secured Party’s Lien on the TL Priority Collateral, without regard to the existence of the Lien of
the ABL Collateral Agent on behalf of the ABL Secured Parties on the TL Priority Collateral or the
Lien of the Notes Collateral Agent on behalf of the Notes Secured Parties on the TL Priority
Collateral. None of the Notes Collateral Agent or any Notes Secured Party shall oppose or seek to
challenge any claim by the ABL Collateral Agent or any ABL Secured Party for allowance in any
Insolvency or Liquidation Proceeding of ABL Obligations consisting of post-petition interest, fees
or expenses to the extent of the value of the ABL Secured Party’s Lien on the TL Priority
Collateral, without regard to the existence of the Lien of the Notes Collateral Agent on behalf of
the Notes Secured Parties on the TL Priority Collateral.




          (ii) Neither the Term Collateral Agent nor any other Term Secured Party shall oppose or seek
to challenge any claim by the ABL Collateral Agent, any ABL Secured Party, the Notes Collateral
Agent or any Notes Secured Party for allowance in any Insolvency or Liquidation Proceeding of ABL
Obligations or Notes Obligations consisting of post-petition interest, fees or expenses to the
extent of the value of the Lien of the ABL Collateral Agent on behalf of the ABL Secured Parties on
the TL Priority Collateral or the Lien of the Notes Collateral Agent on behalf of the Notes Secured
Parties on the TL Priority Collateral (after taking into account the Lien of the Term Secured
Parties on the TL Priority Collateral and with respect to the Lien of the Notes Collateral Agent,
after taking into account the Lien of the ABL Secured Parties on the TL Priority Collateral).
Neither the ABL Collateral Agent nor any other ABL Secured Party shall oppose or seek to challenge
any claim by the Notes Collateral Agent or any Notes Secured Party for allowance in any Insolvency
or Liquidation Proceeding of Notes Obligations consisting of






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post-petition interest, fees or expenses to the extent of the value of the Lien of the Notes
Collateral Agent on behalf of the Notes Secured Parties on the TL Priority Collateral (after taking
into account the Lien of the Term Secured Parties and the ABL Secured Parties on the TL Priority
Collateral).




          (g) Waiver. The ABL Collateral Agent, for itself and on behalf of the ABL Secured
Parties, and the Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties,
waive any claim they may hereafter have against any Term Secured Party arising out of the election
of any Term Secured Party of the application of Section 111l(b)(2) of the Bankruptcy Code, and/or
out of any cash collateral or financing arrangement or out of any grant of a security interest in
connection with the TL Priority Collateral in any Insolvency or Liquidation Proceeding.




          2.6. Reliance; Waivers; Etc.




          (a) Reliance. Other than any reliance on the terms of this Agreement, the ABL
Collateral Agent, on behalf of itself and the ABL Secured Parties, and the Notes Collateral Agent,
for itself and on behalf of the Notes Secured Parties, acknowledge that they and such ABL Secured
Parties and such Notes Secured Parties have, independently and without reliance on the Term
Collateral Agent or any Term Secured Parties, and based on documents and information deemed by them
appropriate, made their own credit analysis and decision to enter into such ABL Documents and Notes
Documents and be bound by the terms of this Agreement and they will continue to make their own
credit decision in taking or not taking any action under the ABL Credit Agreement, the Indentures
or this Agreement.




          (b) No Warranties or Liability. The ABL Collateral Agent, on behalf of itself and the
ABL Secured Parties, and the Notes Collateral Agent, for itself and on behalf of the Notes Secured
Parties, acknowledge and agree that the Term Collateral Agent and the Term Secured Parties have
made no express or implied representation or warranty, including with respect to the execution,
validity, legality, completeness, collectability or enforceability of any of the Term Documents,
the ownership of any Collateral or the perfection or priority of any Liens thereon. The Term
Secured Parties will be entitled to manage and supervise their respective loans and extensions of
credit under their respective Term Documents in accordance with law and as they may otherwise, in
their sole discretion, deem appropriate. The Term Collateral Agent and the Term Secured Parties
shall have no duty to the ABL Collateral Agent, any of the ABL Secured Parties, the Notes
Collateral Agent or any of the Notes Secured Parties to act or refrain from acting in a manner
which allows, or results in, the occurrence or continuance of an event of default or default under
any agreements with the Company or any other Grantor (including the Term Documents, the ABL
Documents and the Notes Documents), regardless of any knowledge thereof which they may have or be
charged with.




          (c) No Waiver of Lien Priorities.




          (i) No right of the Term Secured Parties, the Term Collateral Agent or any of them to enforce
any provision of this Agreement or any Term Document shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or any other Grantor or by any act
or failure to act by any Term Secured Party or the Term Collateral






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Agent, or by any noncompliance by any Person with the terms, provisions and covenants of this
Agreement, any of the Term Documents, any of the ABL Documents or any of the Notes Documents,
regardless of any knowledge thereof which the Term Collateral Agent or the Term Secured Parties, or
any of them, may have or be otherwise charged with.




          (ii) Without in any way limiting the generality of the foregoing paragraph (but subject to the
rights of the Company and the other Grantors under the Term Documents and subject to the provisions
of Section 2.4(c)), the Term Secured Parties, the Term Collateral Agent and any of them may, at any
time and from time to time in accordance with the Term Documents and/or applicable law, without the
consent of, or notice to, the ABL Collateral Agent, any ABL Secured Party, the Notes Collateral
Agent or any Notes Secured Party, without incurring any liabilities to the ABL Collateral Agent,
any ABL Secured Party, the Notes Collateral Agent or any Notes Secured Party and without impairing
or releasing the Lien priorities and other benefits provided in this Agreement (even if any right
of subrogation or other right or remedy of the ABL Collateral Agent, any ABL Secured Party, the
Notes Collateral Agent or any Notes Secured Party is affected, impaired or extinguished thereby) do
any one or more of the following:





     (1) sell, exchange, realize upon, enforce or otherwise deal with in any manner (subject
to the terms hereof) and in any order any part of the TL Priority Collateral or any
liability of the Company or any other Grantor to the Term Secured Parties or the Term
Collateral Agent, or any liability incurred directly or indirectly in respect thereof;




     (2) settle or compromise any Term Obligation or any other liability of the Company or
any other Grantor or any security therefor or any liability incurred directly or indirectly
in respect thereof; and




     (3) exercise or delay in or refrain from exercising any right or remedy against the
Company or any security or any other Grantor or any other Person, elect any remedy and
otherwise deal freely with the Company, any other Grantor or any TL Priority Collateral and
any security and any guarantor or any liability of the Company or any other Grantor to the
Term Secured Parties or any liability incurred directly or indirectly in respect thereof.



          (iii) The ABL Collateral Agent, on behalf of itself and the ABL Secured Parties and the Notes
Collateral Agent, on behalf of itself and the Notes Secured Parties, also agree that the Term
Secured Parties and the Term Collateral Agent shall have no liability to the ABL Collateral Agent,
any ABL Secured Party, the Notes Collateral Agent or any Notes Secured Party, and the ABL
Collateral Agent, on behalf of itself and the ABL Secured Parties and the Notes Collateral Agent,
on behalf of itself and the Notes Secured Parties, hereby waive any claim against any Term Secured
Party or the Term Collateral Agent, arising out of any and all actions which the Term Secured
Parties or the Term Collateral Agent may take or permit or omit to take with respect to:




          (1) the Term Documents (other than this Agreement);




          (2) the collection of the Term Obligations; or







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          (3) the foreclosure upon, or sale, liquidation or other disposition of, any TL Priority
Collateral.



The ABL Collateral Agent, on behalf of itself and the ABL Secured Parties and the Notes Collateral
Agent, on behalf of itself and the Notes Secured Parties, agree that the Term Secured Parties and
the Term Collateral Agent have no duty to the ABL Collateral Agent, the ABL Secured Parties, the
Notes Collateral Agent or the Notes Secured Parties in respect of the maintenance or preservation
of the TL Priority Collateral, the Term Obligations or otherwise.




          (iv) The Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, also
agrees that the ABL Secured Parties and the ABL Collateral Agent shall have no liability to the
Notes Collateral Agent or any Notes Secured Party, and the Notes Collateral Agent, on behalf of
itself and the Notes Secured Parties, hereby waives any claim against any ABL Secured Party or the
ABL Collateral Agent, arising out of any and all actions which the ABL Secured Parties or the ABL
Collateral Agent may take or permit or omit to take with respect to:




          (1) the ABL Documents (other than this Agreement);




          (2) the collection of the ABL Obligations; or




          (3) the foreclosure upon, or sale, liquidation or other disposition of, any TL Priority
Collateral.



The Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees that the ABL
Secured Parties and the ABL Collateral Agent have no duty to the Notes Collateral Agent or the
Notes Secured Parties in respect of the maintenance or preservation of the TL Priority Collateral,
the ABL Obligations or otherwise.




          (v) The ABL Collateral Agent, on behalf of itself and the ABL Secured Parties, and the Notes
Collateral Agent, on behalf of itself and the Notes Secured Parties agree not to assert and hereby
waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise
assert or otherwise claim the benefit of, any marshalling, appraisal, valuation or other similar
right that may otherwise be available under applicable law with respect to the TL Priority
Collateral or any other similar rights a junior secured creditor may have under applicable law.




          (vi) The Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees not
to assert and hereby waive, to the fullest extent permitted by law, any right to demand, request,
plead or otherwise assert or otherwise claim the benefit of, any marshalling, appraisal, valuation
or other similar right that may otherwise be available under applicable law with respect to the TL
Priority Collateral or any other similar rights a junior secured creditor may have under applicable
law.




          (d) Obligations Unconditional. All rights, interests, agreements and obligations of
the Term Collateral Agent and the Term Secured Parties and the ABL Collateral Agent, the ABL
Secured Parties, the Notes Collateral Agent and the Notes Secured Parties, respectively, hereunder
shall remain in full force and effect irrespective of:







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     (i) any lack of validity or enforceability of any Term Document, any ABL Document or
any Notes Document;




     (ii) except as otherwise set forth in the Agreement, any change permitted hereunder in
the time, manner or place of payment of, or in any other terms of, all or any of the Term
Obligations, the ABL Obligations or the Notes Obligations, or any amendment or waiver or
other modification permitted hereunder, whether by course of conduct or otherwise, of the
terms of any Term Document, any ABL Document or any Notes Document;




     (iii) any exchange of any security interest in any TL Priority Collateral or any
amendment, waiver or other modification permitted hereunder, whether in writing or by course
of conduct or otherwise, of all or any of the Term Obligations, the ABL Obligations or the
Notes Obligations;




     (iv) the commencement of any Insolvency or Liquidation Proceeding in respect of the
Company or any other Grantor; or




     (v) any other circumstances which otherwise might constitute a defense available to, or
a discharge of, the Company or any other Grantor in respect of the Term Obligations, or of
the ABL Collateral Agent or any ABL Secured Party, or of the Notes Collateral Agent or any
Notes Secured Party in respect of this Agreement.


Section 3. ABL Priority Collateral.




          3.1.  Lien Priorities.




          (a) Relative Priorities. Notwithstanding (i) the time, manner, order or method of
grant, creation, attachment or perfection of any Liens securing the Term Obligations or the Notes
Obligations granted on the ABL Priority Collateral or of any Liens securing the ABL Obligations
granted on the ABL Priority Collateral, (ii) the validity or enforceability of the security
interests and Liens granted in favor of any Collateral Agent or any Secured Party on the ABL
Priority Collateral, (iii) the date on which any ABL Obligations, Term Obligations or Notes
Obligations are extended, (iv) any provision of the UCC or any other applicable law, including any
rule for determining priority thereunder or under any other law or rule governing the relative
priorities of secured creditors, including with respect to real property or fixtures, (v) any
provision set forth in any ABL Document, any Term Document or any Notes Document (other than this
Agreement), (vi) the possession or control by any Collateral Agent or any Secured Party or any
bailee of all or any part of any ABL Priority Collateral as of the date hereof or otherwise, or
(vii) any other circumstance whatsoever, the Term Collateral Agent, on behalf of itself and the
Term Secured Parties, and the Notes Collateral Agent, on behalf of itself and the Notes Secured
Parties, hereby agree that:





     (i) any Lien on the ABL Priority Collateral securing any ABL Obligations now or
hereafter held by or on behalf of the ABL Collateral Agent or any ABL Secured Parties or any
agent or trustee therefor, regardless of how acquired, whether by grant, possession,
statute, operation of law, subrogation or otherwise, shall be senior in all respects and
prior to (x) any Lien on the ABL Priority Collateral securing any of the Term



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Obligations and (y) any Lien on the ABL Priority Collateral securing any of the Notes
Obligations;




     (ii) any Lien on the ABL Priority Collateral now or hereafter held by or on behalf of
the Term Collateral Agent, any Term Secured Parties, the Notes Collateral Agent, any Notes
Secured Parties or any agent or trustee therefor regardless of how acquired, whether by
grant, possession, statute, operation of law, subrogation or otherwise, shall be junior and
subordinate in all respects to all Liens on the ABL Priority Collateral securing any ABL
Obligations;




     (iii) any Lien on the ABL Priority Collateral securing any Term Obligations now or
hereafter held by or on behalf of the Term Collateral Agent or any Term Secured Parties or
any agent or trustee therefor, regardless of how acquired, whether by grant, possession,
statute, operation of law, subrogation or otherwise, shall be senior in all respects and
prior to any Lien on the ABL Priority Collateral securing any of the Notes Obligations; and




     (iv) any Lien on the ABL Priority Collateral now or hereafter held by or on behalf of
the Notes Collateral Agent, any Notes Secured Party or any agent or trustee therefor
regardless of how acquired, whether by grant, possession, statute, operation of law,
subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on
the ABL Priority Collateral securing any Term Obligations.


All Liens on the ABL Priority Collateral securing any ABL Obligations shall be and remain senior in
all respects and prior to all Liens on the ABL Priority Collateral securing (x) any Term
Obligations and (y) any Notes Obligations for all purposes, whether or not such Liens securing any
ABL Obligations are subordinated to any Lien securing any other obligation of the Company, any
other Grantor or any other Person. All Liens on the ABL Priority Collateral securing any Term
Obligations shall be and remain senior in all respects and prior to all Liens on the ABL Priority
Collateral securing any Notes Obligations for all purposes, whether or not such Liens securing any
Term Obligations are subordinated to any Lien securing any other obligation of the Company, any
other Grantor or any other Person.




          (b) Prohibition on Contesting Liens. Each of the Term Collateral Agent, for itself
and on behalf of each Term Secured Party, the ABL Collateral Agent, for itself and on behalf of
each ABL Secured Party, and the Notes Collateral Agent, for itself and on behalf of each Notes
Secured Party, agrees that it shall not (and hereby waives any right to) contest or support any
other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding),
(i) the priority, validity or enforceability of a Lien held by or on behalf of any of the ABL
Secured Parties in the ABL Priority Collateral, by or on behalf of any of the Term Secured Parties
in the ABL Priority Collateral or by or on behalf of any of the Notes Secured Parties in the ABL
Priority Collateral, as the case may be, or (ii) the validity or enforceability of any Term
Security Document (or any Term Obligations thereunder), any ABL Security Document (or any ABL
Obligations thereunder) or any Notes Security Document (or any Notes Obligations thereunder);
provided that nothing in this Agreement shall be construed to prevent or impair the rights
of any of the Collateral Agents or any Secured Party to enforce this Agreement, including the






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priority of the Liens on the ABL Priority Collateral securing the ABL Obligations, the Term
Obligations and the Notes Obligations as provided in Sections 3.1(a), 3.2(a) and 3.2(b).




          (c) No New Liens. So long as the Discharge of ABL Obligations has not occurred, the
parties hereto agree that the Company or any other Grantor shall not grant or permit any additional
Liens on any asset or property of any Grantor to secure any Term Obligation or Notes Obligation
unless it has granted or contemporaneously grants (x)(i) a First Priority Lien on such asset or
property to secure the ABL Obligations if such asset or property constitutes ABL Priority
Collateral or (ii) a Second Priority Lien on such asset or property to secure the ABL Obligations
if such asset or property constitutes TL Priority Collateral, (y)(i) a Second Priority Lien on such
asset or property to secure the Term Obligations if such asset or property constitutes ABL Priority
Collateral or (ii) a First Priority Lien on such asset or property to secure the Term Obligations
if such asset or property constitutes TL Priority Collateral and (z) a Third Priority Lien on such
asset or property to secure the Notes Obligations. To the extent that the provisions of clause
(x)(i) in the immediately preceding sentence are not complied with for any reason, without limiting
any other rights and remedies available to the ABL Collateral Agent and/or the ABL Secured Parties,
each of the Term Collateral Agent, on behalf of Term Secured Parties, and the Notes Collateral
Agent, on behalf of the Notes Secured Parties, agrees that any amounts received by or distributed
to any of them pursuant to or as a result of Liens on the ABL Priority Collateral granted in
contravention of such clause (x)(i) of this Section 3.1(c) shall be subject to Section 3.3.




          (d) Effectiveness of Lien Priorities. Each of the parties hereto acknowledges that
the Lien priorities provided for in this Agreement shall not be affected or impaired in any manner
whatsoever, including, without limitation, on account of: (i) the invalidity, irregularity or
unenforceability of all or any part of the ABL Documents, the Term Documents or the Notes
Documents; (ii) any amendment, change or modification of any ABL Documents, Term Documents or Notes
Documents; or (iii) any impairment, modification, change, exchange, release or subordination of or
limitation on, any liability of, or stay of actions or lien enforcement proceedings against, the
Company or any of its Subsidiaries party to any of the ABL Documents, the Term Documents or the
Notes Documents, its property, or its estate in bankruptcy resulting from any bankruptcy,
arrangement, readjustment, composition, liquidation, rehabilitation, similar proceeding or
otherwise involving or affecting any Secured Party.




          3.2. Exercise of Remedies.




          (a) So long as the Discharge of ABL Obligations has not occurred, whether or not any
Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other
Grantor:





     (i) none of the Term Collateral Agent, the Term Secured Parties, the Notes Collateral
Agent or the Notes Secured Parties (x) will exercise or seek to exercise any rights or
remedies (including, without limitation, setoff) with respect to any ABL Priority Collateral
(including, without limitation, the exercise of any right under any lockbox agreement,
account control agreement, landlord waiver or bailee’s letter or similar agreement or
arrangement in respect of ABL Priority Collateral to which the Term Collateral Agent, any
Term Secured Party, the Notes Collateral Agent or any Notes Secured



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Party is a party) or institute or commence or join with any Person (other than the ABL
Collateral Agent and the ABL Secured Parties) in commencing any action or proceeding with
respect to such rights or remedies (including any action of foreclosure, enforcement,
collection or execution); provided, however, that the Term Collateral Agent
may exercise any or all such rights after the passage of a period of 180 days from the date
of delivery of a notice in writing to the ABL Collateral Agent of the Term Collateral
Agent’s intention to exercise its right to take such actions (the “Term Standstill
Period”); provided, further, however, notwithstanding anything
herein to the contrary, neither the Term Collateral Agent nor any Term Secured Party will
exercise any rights or remedies with respect to any ABL Priority Collateral if,
notwithstanding the expiration of the Term Standstill Period, the ABL Collateral Agent or
ABL Secured Parties shall have commenced the exercise of any of their rights or remedies
with respect to all or any portion of the ABL Priority Collateral (prompt notice of such
exercise to be given to the Term Collateral Agent) and are pursuing the exercise thereof,
(y) will contest, protest or object to any foreclosure proceeding or action brought by the
ABL Collateral Agent or any ABL Secured Party with respect to, or any other exercise by the
ABL Collateral Agent or any ABL Secured Party of any rights and remedies relating to, the
ABL Priority Collateral under the ABL Documents or otherwise, or (z) subject to the rights
of the Term Collateral Agent under clause (i)(x) above, will object to the forbearance by
the ABL Collateral Agent or the ABL Secured Parties from bringing or pursuing any
foreclosure proceeding or action or any other exercise of any rights or remedies relating to
the ABL Priority Collateral, in each case so long as the respective interests of the Term
Secured Parties and the Notes Secured Parties attach to the proceeds thereof subject to the
relative priorities described in Section 3.1; provided, that the Notes Collateral
Agent and the Notes Secured Parties will not object to the forbearance by the Term
Collateral Agent or the Term Secured Parties from bringing or pursuing any foreclosure
proceeding or action or any other exercise of any rights or remedies relating to the ABL
Priority Collateral, in each case so long as the interests of the Notes Secured Parties
attach to the proceeds thereof subject to the relative priorities described in Section 3.1;
provided, however, that nothing in this Section 3.2(a) shall be construed to
authorize (A) the Term Collateral Agent, any Term Secured Party, the Notes Collateral Agent
or any Notes Secured Party to sell any ABL Priority Collateral free of the Lien of the ABL
Collateral Agent or any ABL Secured Party or (B) the Notes Collateral Agent or any Notes
Secured Party to sell any ABL Priority Collateral free of the Lien of the Term Collateral
Agent or any Term Secured Party; and




     (ii) the ABL Collateral Agent and the ABL Secured Parties shall have the exclusive
right to enforce rights, exercise remedies (including setoff and the right to credit bid
their debt) and make determinations regarding the disposition of, or restrictions with
respect to, the ABL Priority Collateral without any consultation with or the consent of the
Term Collateral Agent, any Term Secured Party, the Notes Collateral Agent or any Notes
Secured Party; provided, that:




     (1) the Term Collateral Agent may take any action (not adverse to the prior
Liens on the ABL Priority Collateral securing the ABL Obligations, or the rights of
any ABL Collateral Agent or the ABL Secured Parties to exercise remedies in respect
thereof) in order to preserve or protect its Lien on the ABL Priority Collateral;



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     (2) the Notes Collateral Agent may take any action (not adverse to the prior
Liens on the ABL Priority Collateral securing the ABL Obligations and the Term
Obligations, or the rights of any ABL Collateral Agent, the ABL Secured Parties, any
Term Collateral Agent or the Term Secured Parties to exercise remedies in respect
thereof) in order to preserve or protect its Lien on the ABL Priority Collateral;




     (3) the Term Secured Parties and the Notes Secured Parties shall be entitled to
file any necessary responsive or defensive pleadings in opposition to any motion,
claim, adversary proceeding or other pleading made by any person objecting to or
otherwise seeking the disallowance of the claims of the Term Secured Parties or the
Notes Secured Parties, as applicable, including without limitation any claims
secured by the ABL Priority Collateral, if any, in each case in accordance with the
terms of this Agreement;




     (4) the Term Secured Parties and the Notes Secured Parties shall be entitled to
file any pleadings, objections, motions or agreements which assert rights or
interests available to unsecured creditors of the Grantors arising under either the
Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance with the
terms of this Agreement;




     (5) the Term Secured Parties and the Notes Secured Parties shall be entitled to
vote on any plan of reorganization and file any proof of claim in an Insolvency or
Liquidation Proceeding or otherwise and other filings and make any arguments and
motions that are, in each case, in accordance with the terms of this Agreement, with
respect to the ABL Priority Collateral; and




     (6) the Term Collateral Agent or any Term Secured Party may exercise any of its
rights or remedies with respect to the ABL Priority Collateral after the termination
of the Term Standstill Period to the extent permitted by clause (i)(x) above.



          In exercising rights and remedies with respect to the ABL Priority Collateral, the ABL
Collateral Agent and the ABL Secured Parties may enforce the provisions of the ABL Documents and
exercise remedies thereunder, all in such order and in such manner as they may determine in the
exercise of their sole discretion. Such exercise and enforcement shall include the rights of an
agent appointed by them to sell or otherwise dispose of ABL Priority Collateral upon foreclosure,
to incur expenses in connection with such sale or disposition, and to exercise all the rights and
remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured
creditor under Bankruptcy Laws of any applicable jurisdiction.




          (b) Following the Discharge of ABL Obligations, so long as the Discharge of Term Obligations
has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or
against the Company or any other Grantor:




          (i) none of the Notes Collateral Agent and the Notes Secured Parties (x) will exercise
or seek to exercise any rights or remedies (including, without limitation, setoff)



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with respect to any ABL Priority Collateral (including, without limitation, the
exercise of any right under any lockbox agreement, account control agreement, landlord
waiver or bailee’s letter or similar agreement or arrangement in respect of ABL Priority
Collateral to which the Notes Collateral Agent or any Notes Secured Party is a party) or
institute or commence, or join with any Person (other than the Term Collateral Agent and the
Term Secured Parties) in commencing any action or proceeding with respect to such rights or
remedies (including any action of foreclosure), enforcement, collection or execution; (y)
will contest, protest or object to any foreclosure proceeding or action brought by the Term
Collateral Agent or any Term Secured Party with respect to, or any other exercise by the
Term Collateral Agent or any Term Secured Party of any rights and remedies relating to, the
ABL Priority Collateral under the Term Documents or otherwise, or (z) will object to the
forbearance by the Term Collateral Agent or the Term Secured Parties from bringing or
pursuing any foreclosure proceeding or action or any other exercise of any rights or
remedies relating to the ABL Priority Collateral, in each case so long as the respective
interests of the Notes Secured Parties attach to the proceeds thereof subject to the
relative priorities described in Section 3.1; and




     (ii) the Term Collateral Agent and the Term Secured Parties shall have the exclusive
right to enforce rights, exercise remedies (including setoff and the right to credit bid
their debt) and make determinations regarding the disposition of, or restrictions with
respect to, the ABL Priority Collateral without any consultation with or the consent of the
Notes Collateral Agent or any Notes Secured Party; provided, that:




     (1) the Notes Collateral Agent may take any action (not adverse to the prior
Liens on the ABL Priority Collateral securing the Term Obligations, or the rights of
any Term Collateral Agent or the Term Secured Parties to exercise remedies in
respect thereof) in order to preserve or protect its Lien on the ABL Priority
Collateral;




     (2) the Notes Secured Parties shall be entitled to file any necessary
responsive or defensive pleadings in opposition to any motion, claim, adversary
proceeding or other pleading made by any person objecting to or otherwise seeking
the disallowance of the claims of the Notes Secured Parties, including without
limitation any claims secured by the ABL Priority Collateral, if any, in each case
in accordance with the terms of this Agreement;




     (3) the Notes Secured Parties shall be entitled to file any pleadings,
objections, motions or agreements which assert rights or interests available to
unsecured creditors of the Grantors arising under either the Bankruptcy Law or
applicable non-bankruptcy law, in each case in accordance with the terms of this
Agreement; and




     (4) the Notes Secured Parties shall be entitled to vote on any plan of
reorganization and file any proof of claim in an Insolvency or Liquidation
Proceeding or otherwise and other filings and make any arguments and motions that
are, in each case, in accordance with the terms of this Agreement, with respect to
the ABL Priority Collateral.



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          In exercising rights and remedies with respect to the ABL Priority Collateral, the Term
Collateral Agent and the Term Secured Parties may enforce the provisions of the Term Documents and
exercise remedies thereunder, all in such order and in such manner as they may determine in the
exercise of their sole discretion. Such exercise and enforcement shall include the rights of an
agent appointed by them to sell or otherwise dispose of ABL Priority Collateral upon foreclosure,
to incur expenses in connection with such sale or disposition, and to exercise all the rights and
remedies of a secured creditor under the UCC of any applicable jurisdiction and of a secured
creditor under Bankruptcy Laws of any applicable jurisdiction.




          (c) Each of the Term Collateral Agent, on behalf of itself and the Term Secured Parties, and
the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees that it will
not take or receive any ABL Priority Collateral or any proceeds of ABL Priority Collateral in
connection with the exercise of any right or remedy (including setoff) with respect to any ABL
Priority Collateral unless and until the Discharge of ABL Obligations has occurred, except as
expressly provided in the proviso in clause (ii) of Section 3.2(a). Following the Discharge of ABL
Obligations, the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees
that it will not take or receive any ABL Priority Collateral or any proceeds of ABL Priority
Collateral in connection with the exercise of any right or remedy (including setoff) with respect
to any ABL Priority Collateral unless and until the Discharge of Term Obligations has occurred.
Without limiting the generality of the foregoing, (x) unless and until the Discharge of ABL
Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section
3.2(a), the sole right of the Term Collateral Agent and the Term Secured Parties with respect to
the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to the Term
Documents for the period and to the extent granted therein and to receive a share of the proceeds
thereof, if any, after the Discharge of ABL Obligations has occurred in accordance with the terms
hereof, the Term Documents and applicable law and (y) unless and until the Discharge of ABL
Obligations and the Discharge of Term Obligations have occurred, except as expressly provided in
the proviso in clause (ii) of Section 3.2(a) and the proviso in clause (ii) of Section 3.2(b), the
sole right of the Notes Collateral Agent and the Notes Secured Parties with respect to the ABL
Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to the Notes
Documents for the period and to the extent granted therein and to receive a share of the proceeds
thereof, if any, after the Discharge of ABL Obligations and the Discharge of Term Obligations have
occurred in accordance with the terms hereof, the ABL Documents, the Term Documents and applicable
law.




          (d) Subject to the proviso in clause (ii) of Section 3.2(a), the proviso in clause (ii) of
Section 3.2(b):





     (i) the Term Collateral Agent, for itself and on behalf of the Term Secured Parties,
agrees that the Term Collateral Agent and the Term Secured Parties will not take any action
that would hinder any exercise of remedies under the ABL Documents with respect to the ABL
Priority Collateral or is otherwise prohibited hereunder, including any sale, lease,
exchange, transfer or other disposition of the ABL Priority Collateral, whether by
foreclosure or otherwise;




     (ii) the Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties,
agrees that the Notes Collateral Agent and the Notes Secured Parties will not take



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any action that would hinder any exercise of remedies under the ABL Documents or the
Term Documents with respect to the ABL Priority Collateral or is otherwise prohibited
hereunder, including any sale, lease, exchange, transfer or other disposition of the ABL
Priority Collateral, whether by foreclosure or otherwise;




     (iii) the Term Collateral Agent, for itself and on behalf of the Term Secured Parties,
hereby waives any and all rights it or the Term Secured Parties may have as a junior lien
creditor with respect to the ABL Priority Collateral or otherwise to object to the manner in
which the ABL Collateral Agent or the ABL Secured Parties seek to enforce or collect the ABL
Obligations or the Liens granted in any of the ABL Priority Collateral, regardless of
whether any action or failure to act by or on behalf of the ABL Collateral Agent or ABL
Secured Parties is adverse to the interest of the Term Secured Parties; and




     (iv) the Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties,
hereby waives any and all rights it or the Notes Secured Parties may have as a junior lien
creditor with respect to the ABL Priority Collateral or otherwise to object to the manner in
which the ABL Collateral Agent, the ABL Secured Parties, the Term Collateral Agent or the
Term Secured Parties seek to enforce or collect the ABL Obligations or the Term Obligations
or the Liens granted in any of the ABL Priority Collateral, regardless of whether any action
or failure to act by or on behalf of the ABL Collateral Agent, the ABL Secured Parties, the
Term Collateral Agent or the Term Secured Parties is adverse to the interest of the Notes
Secured Parties.



          (e) The Term Collateral Agent hereby acknowledges and agrees that no covenant, agreement or
restriction contained in any Term Document (other than this Agreement) shall be deemed to restrict
in any way the rights and remedies of the ABL Collateral Agent or the ABL Secured Parties with
respect to the ABL Priority Collateral as set forth in this Agreement and the ABL Documents.




          (f) The Notes Collateral Agent hereby acknowledges and agrees that no covenant, agreement or
restriction contained in any Notes Document (other than this Agreement) shall be deemed to restrict
in any way the rights and remedies of the ABL Collateral Agent, the ABL Secured Parties, the Term
Collateral Agent or the Term Secured Parties with respect to the ABL Priority Collateral as set
forth in this Agreement, the ABL Documents and the Term Documents.




          3.3. Payments Over.




          (a) So long as the Discharge of ABL Obligations has not occurred, any ABL Priority Collateral,
cash proceeds thereof or non-cash proceeds not constituting TL Priority Collateral received by the
Term Collateral Agent, the Notes Collateral Agent, any Term Secured Parties or any Notes Secured
Parties in connection with the exercise of any right or remedy (including setoff) relating to the
ABL Priority Collateral in contravention of this Agreement shall be segregated and held in trust
and forthwith paid over to the ABL Collateral Agent for the benefit of the ABL Secured Parties in
the same form as received, with any necessary endorsements or as a court of competent jurisdiction
may otherwise direct. The ABL Collateral Agent is hereby au-






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thorized to make any such endorsements as agent for the Term Collateral Agent, any such Term
Secured Parties, the Notes Collateral Agent or any such Notes Secured Parties. This authorization
is coupled with an interest and is irrevocable until such time as this Agreement is terminated in
accordance with its terms.




          (b) Following the Discharge of ABL Obligations, so long as the Discharge of Term Obligations
has not occurred, any ABL Priority Collateral, cash proceeds thereof or non-cash proceeds received
by the Notes Collateral Agent or any Notes Secured Parties in connection with the exercise of any
right or remedy (including setoff) relating to the ABL Priority Collateral in contravention of this
Agreement shall be segregated and held in trust and forthwith paid over to the Term Collateral
Agent for the benefit of the Term Secured Parties in the same form as received, with any necessary
endorsements or as a court of competent jurisdiction may otherwise direct. The Term Collateral
Agent is hereby authorized to make any such endorsements as agent for the Notes Collateral Agent or
any such Notes Secured Parties. This authorization is coupled with an interest and is irrevocable
until such time as this Agreement is terminated in accordance with its terms.




          3.4. Other Agreements.




          (a) Releases by ABL Collateral Agent.




          (i) If, in connection with:





     (1) the exercise of any ABL Collateral Agent’s remedies in respect of the ABL Priority
Collateral provided for in Section 3.2(a), including any sale, lease, exchange, transfer or
other disposition of any such ABL Priority Collateral; or




     (2) any sale, lease, exchange, transfer or other disposition of any ABL Priority
Collateral permitted under the terms of the ABL Documents, the Term Documents and the Notes
Documents (whether or not an event of default thereunder, and as defined therein, has
occurred and is continuing),


the ABL Collateral Agent, for itself or on behalf of any of the ABL Secured Parties, releases any
of its Liens on any part of the ABL Priority Collateral other than, in the case of clause (2)
above, (A) in connection with the Discharge of ABL Obligations and (B) after the occurrence and
during the continuance of any event of default under the Term Credit Agreement or the Indentures,
then the Liens, if any, of the Term Collateral Agent, for itself or for the benefit of the Term
Secured Parties, and of the Notes Collateral Agent, for itself or for the benefit of the Notes
Secured Parties, on such ABL Priority Collateral (but not the Proceeds thereof, which shall be
subject to the priorities set forth in this Agreement) shall be automatically, unconditionally and
simultaneously released and the Term Collateral Agent, for itself or on behalf of any such Term
Secured Parties, and the Notes Collateral Agent, for itself or on behalf of any such Notes Secured
Parties, promptly shall execute and deliver to the ABL Collateral Agent or such Grantor such
termination statements, releases and other documents as the ABL Collateral Agent or such Grantor
may request to effectively confirm such release; provided that in the case of clause (a)(i)
above, any Proceeds of such disposition shall be applied in accordance with this Agreement.







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          (ii) Until the Discharge of ABL Obligations occurs, the Term Collateral Agent, for itself and
on behalf of the Term Secured Parties, and the Notes Collateral Agent, for itself and an on behalf
of the Notes Secured Parties, hereby irrevocably constitute and appoint the ABL Collateral Agent
and any officer or agent of the ABL Collateral Agent, with full power of substitution, as its true
and lawful attorney in fact with full irrevocable power and authority in the place and stead of the
Term Collateral Agent, the Notes Collateral Agent or such holder or in the ABL Collateral Agent’s
own name, from time to time in the ABL Collateral Agent’s discretion, for the purpose of carrying
out the terms of this Section 3.4(a) with respect to ABL Priority Collateral, to take any and all
appropriate action and to execute any and all documents and instruments which may be necessary to
accomplish the purposes of this Section 3.4(a) with respect to ABL Priority Collateral, including
any endorsements or other instruments of transfer or release.




          (iii) Until the Discharge of ABL Obligations occurs, to the extent that the ABL Secured
Parties (a) have released any Lien on ABL Priority Collateral and any such Lien is later reinstated
or (b) obtain any new First Priority Liens on assets constituting ABL Priority Collateral from
Grantors, then the Term Secured Parties shall be granted a Second Priority Lien on any such ABL
Priority Collateral and the Notes Secured Parties shall be grated a Third Priority Lien on any such
ABL Priority Collateral.




          (iv) If, prior to the Discharge of ABL Obligations, a subordination of the ABL Collateral
Agent’s Lien on any ABL Priority Collateral is permitted (or in good faith believed by the ABL
Collateral Agent to be permitted) under the ABL Credit Agreement and the Term Credit Agreement to
another Lien permitted under the ABL Credit Agreement, the Term Credit Agreement and the Indentures
(an “ABL Collateral Priority Lien”), then the ABL Collateral Agent is authorized to execute
and deliver a subordination agreement with respect thereto in form and substance satisfactory to
it, and the Term Collateral Agent, for itself and on behalf of the Term Secured Parties, and the
Notes Collateral Agent for itself and on behalf of the Notes Secured Parties, shall promptly
execute and deliver to the ABL Collateral Agent an identical subordination agreement subordinating
(x) the Liens of the Term Collateral Agent for the benefit of (and on behalf of) the Term Secured
Parties to such ABL Collateral Priority Lien and (y) the Liens of the Notes Collateral Agent for
the benefit of (and on behalf of) the Notes Secured Parties to such ABL Collateral Priority Lien.




          (b) Releases by Term Collateral Agent.




          (i) Following the Discharge of ABL Obligations, but prior to the Discharge of Term
Obligations, if, in connection with:





     (1) the exercise of any Term Collateral Agent’s remedies in respect of the ABL Priority
Collateral provided for in Section 3.2(b), including any sale, lease, exchange, transfer or
other disposition of any such ABL Priority Collateral; or




     (2) any sale, lease, exchange, transfer or other disposition of any ABL Priority
Collateral permitted under the terms of the Term Documents and the Notes Documents (whether
or not an event of default thereunder, and as defined therein, has occurred and is
continuing),



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the Term Collateral Agent, for itself or on behalf of any of the Term Secured Parties, releases any
of its Liens on any part of the ABL Priority Collateral other than, in the case of clause (2)
above, (A) in connection with the Discharge of Term Obligations and (B) after the occurrence and
during the continuance of any event of default under the Indentures, then the Liens, if any, of the
Notes Collateral Agent, for itself or for the benefit of the Notes Secured Parties, on such ABL
Priority Collateral (but not the Proceeds thereof, which shall be subject to the priorities set
forth in this Agreement) shall be automatically, unconditionally and simultaneously released and
the Notes Collateral Agent, for itself or on behalf of any such Notes Secured Parties, promptly
shall execute and deliver to the Term Collateral Agent or such Grantor such termination statements,
releases and other documents as the Term Collateral Agent or such Grantor may request to
effectively confirm such release; provided that in the case of clause (b)(i) above, any
Proceeds of such disposition shall be applied in accordance with this Agreement.




          (ii) Following the Discharge of ABL Obligations and until the Discharge of Term Obligations
occurs, the Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties, hereby
irrevocably constitutes and appoints the Term Collateral Agent and any officer or agent of the Term
Collateral Agent, with full power of substitution, as its true and lawful attorney in fact with
full irrevocable power and authority in the place and stead of the Notes Collateral Agent or such
holder or in the Term Collateral Agent’s own name, from time to time in the Term Collateral Agent’s
discretion, for the purpose of carrying out the terms of this Section 3.4(b) with respect to ABL
Priority Collateral, to take any and all appropriate action and to execute any and all documents
and instruments which may be necessary to accomplish the purposes of this Section 3.4(b) with
respect to ABL Priority Collateral, including any endorsements or other instruments of transfer or
release.




          (iii) Following the Discharge of ABL Obligations and until the Discharge of Term Obligations
occurs, to the extent that the Term Secured Parties (a) have released any Lien on ABL Priority
Collateral and any such Lien is later reinstated or (b) obtain any new Second Priority Liens on
assets constituting ABL Priority Collateral from Grantors, then the Notes Secured Parties shall be
granted a Third Priority Lien on any such ABL Priority Collateral.




          (iv) If, prior to the Discharge of Term Obligations, a subordination of the Term Collateral
Agent’s Lien on any ABL Priority Collateral is permitted (or in good faith believed by the Term
Collateral Agent to be permitted) under the Term Credit Agreement to another Lien permitted under
the Term Credit Agreement and the Indentures (a “Subsequent ABL Collateral Priority Lien”),
then the Term Collateral Agent is authorized to execute and deliver a subordination agreement with
respect thereto in form and substance satisfactory to it, and the Notes Collateral Agent, for
itself and on behalf of the Notes Secured Parties, shall promptly execute and deliver to the Term
Collateral Agent an identical subordination agreement subordinating the Liens of the Notes
Collateral Agent for the benefit of (and on behalf of) the Notes Secured Parties to such Subsequent
Term Collateral Priority Lien.




          (c) Insurance. Unless and until the Discharge of ABL Obligations has occurred, the
ABL Collateral Agent and the ABL Secured Parties shall have the sole and exclusive right, subject
to the rights of the Grantors under the ABL Documents, to adjust settlement for any insurance
policy covering the ABL Priority Collateral in the event of any loss thereunder and to approve any
award granted in any condemnation or similar proceeding (or any deed in lieu of






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condemnation) in respect of the ABL Priority Collateral. Following the Discharge of ABL
Obligations, unless and until the Discharge of Term Obligations has occurred, the Term Collateral
Agent and the Term Secured Parties shall have the sole and exclusive right, subject to the rights
of the Grantors under the Term Documents, to adjust settlement for any insurance policy covering
the ABL Priority Collateral in the event of any loss thereunder and to approve any award granted in
any condemnation or similar proceeding (or any deed in lieu of condemnation) in respect of the ABL
Priority Collateral.




          (d) Amendments to Term Security Documents or Notes Security Documents.




          (i) Without the prior written consent of the ABL Collateral Agent, no Term Security Document
or Notes Security Document may be amended, supplemented or otherwise modified or entered into to
the extent such amendment, supplement or modification, or the terms of any new Term Document or new
Notes Document, would contravene the provisions of this Agreement. Grantors agree that each Term
Security Document and Notes Security Document (other than (x) any mortgage, deed of trust or
similar security document relating to real property and fixtures thereon and (y) any Term Security
Document and Notes Security Document where the party or parties granting security interests
thereunder are not parties hereto, as contemplated by Section 6.19) shall include the following
language (with any necessary modifications to give effect to applicable definitions) (or language
to similar effect approved by the ABL Collateral Agent):





“Notwithstanding anything herein to the contrary, the liens and security interests
granted to [the Term Collateral Agent] [the Notes Collateral Agent] pursuant to this
Agreement in any ABL Priority Collateral and the exercise of any right or remedy by
[the Term Collateral Agent] [the Notes Collateral Agent] with respect to any ABL
Priority Collateral hereunder are subject to the provisions of the Intercreditor
Agreement, dated as of [April 12, 2006] [March 18, 2009] (as amended, restated,
supplemented or otherwise modified from time to time, the “Intercreditor
Agreement”), among DHM HOLDING COMPANY, INC., a Delaware corporation, DOLE
HOLDING COMPANY, LLC, a Delaware limited liability company, DOLE FOOD COMPANY, INC.,
a Delaware corporation (the “Company”), the other GRANTORS from time to time
party thereto, DEUTSCHE BANK AG NEW YORK BRANCH, as ABL Collateral Agent, DBAG, as
Term Collateral Agent, [U.S. BANK NATIONAL ASSOCIATION, as Notes Collateral Agent],
and certain other persons party or that may become party thereto from time to time.
In the event of any conflict between the terms of the Intercreditor Agreement and
this Agreement, the terms of the Intercreditor Agreement shall govern and control.”



          (ii) In the event any ABL Collateral Agent or the ABL Secured Parties and the relevant Grantor
enter into any amendment, waiver or consent in respect of any of the ABL Security Documents for the
purpose of adding to, or deleting from, or waiving or consenting to any departures from any
provisions of, any ABL Security Document or changing in any manner the rights of the ABL Collateral
Agent, such ABL Secured Parties, the Company or any other Grantor thereunder, in each case with
respect to or relating to the ABL Priority Collateral, then such amendment, waiver or consent shall
apply automatically to any comparable provision of (x) the






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Comparable Term Security Document without the consent of the Term Collateral Agent or the Term
Secured Parties and without any action by the Term Collateral Agent, the Company or any other
Grantor and (y) the Comparable Notes Security Document without the consent of the Notes Collateral
Agent or the Notes Secured Parties and without any action by the Notes Collateral Agent, the
Company or any other Grantor, provided that (A) no such amendment, waiver or consent shall
have the effect of (i) removing assets that constitute ABL Priority Collateral subject to the Lien
of the Term Security Documents or the Notes Security Documents, except to the extent that a release
of such Lien is permitted or required by Section 3.4(a) and provided that there is a
corresponding release of such Lien securing the ABL Obligations, (ii) imposing duties on the Term
Collateral Agent or the Notes Collateral Agent without its consent or (iii) permitting other liens
on the ABL Priority Collateral not permitted under the terms of the Term Documents, the Notes
Documents or Section 3.5 and (B) notice of such amendment, waiver or consent shall have been given
to the Term Collateral Agent and the Notes Collateral Agent within ten (10) Business Days after the
effective date of such amendment, waiver or consent.




          (iii) Following the Discharge of ABL Obligations, in the event any Term Collateral Agent or
the Term Secured Parties and the relevant Grantor enter into any amendment, waiver or consent in
respect of any of the Term Security Documents for the purpose of adding to, or deleting from, or
waiving or consenting to any departures from any provisions of, any Term Security Document or
changing in any manner the rights of the Term Collateral Agent, such Term Secured Parties, the
Company or any other Grantor thereunder, in each case with respect to or relating to the ABL
Priority Collateral, then such amendment, waiver or consent shall apply automatically to any
comparable provision of the Comparable Notes Security Document without the consent of the Notes
Collateral Agent or the Notes Secured Parties and without any action by the Notes Collateral Agent,
the Company or any other Grantor, provided that (A) no such amendment, waiver or consent
shall have the effect of (i) removing assets that constitute ABL Priority Collateral subject to the
Lien of the Notes Security Documents, except to the extent that a release of such Lien is permitted
or required by Section 3.4(b) and provided that there is a corresponding release of such
Lien securing the Term Obligations, (ii) imposing duties on the Notes Collateral Agent without its
consent or (iii) permitting other liens on the ABL Priority Collateral not permitted under the
terms of the Notes Documents or Section 2.5 and (B) notice of such amendment, waiver or consent
shall have been given to the Notes Collateral Agent within ten (10) Business Days after the
effective date of such amendment, waiver or consent.




          (e) Rights As Unsecured Creditors. Except as otherwise set forth in Section 3.1 and
the Notes Documents, the Term Collateral Agent, the Term Secured Parties, the Notes Collateral
Agent and the Notes Secured Parties may exercise rights and remedies as unsecured creditors against
the Company or any other Grantor that has guaranteed the Term Obligations or the Notes Obligations
in accordance with the terms of the Term Documents, the Notes Documents and applicable law. Except
as otherwise set forth in Section 3.1, nothing in this Agreement shall prohibit the receipt by the
Term Collateral Agent, any Term Secured Parties, the Notes Collateral Agent or any Notes Secured
Parties of the required payments of interest, principal and other amounts in respect of the Term
Obligations and Notes Obligations, as applicable, so long as such receipt is not the direct or
indirect result of the exercise by the Term Collateral Agent, any Term Secured Parties, the Notes
Collateral Agent or any Notes Secured Parties of rights or remedies as a secured creditor
(including setoff) in respect of the ABL Priority Collateral or enforcement in contravention of
this Agreement of any Lien held by any of them.







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          (f) Bailee for Perfection.




          (i) The ABL Collateral Agent agrees to hold that part of the ABL Priority Collateral that is
in its possession or control (or in the possession or control of its agents or bailees) to the
extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such
ABL Priority Collateral being the “Pledged ABL Priority Collateral”) as collateral agent
for the ABL Secured Parties and as bailee for and, with respect to any collateral that cannot be
perfected in such manner, as agent for, the Term Collateral Agent (on behalf of the Term Secured
Parties) and the Notes Collateral Agent (on behalf of the Notes Secured Parties) and any assignee
thereof and act as such agent under all control agreements relating to the Pledged ABL Priority
Collateral, in each case solely for the purpose of perfecting the security interest granted under
the ABL Credit Documents, the Term Documents and the Notes Documents, as applicable, subject to the
terms and conditions of this Section 3.4(f). Following the Discharge of ABL Obligations, the Term
Collateral Agent agrees to hold the Pledged ABL Priority Collateral as collateral agent for the
Term Secured Parties and as bailee for and, with respect to any collateral that cannot be perfected
in such manner, as agent for, the Notes Collateral Agent (on behalf of the Notes Secured Parties)
and any assignee thereof solely for the purpose of perfecting the security interest granted under
the Term Documents and the Notes Documents, as applicable, subject to the terms and conditions of
this Section 3.4(f). As security for the payment and performance in full of all the Notes
Obligations and Term Obligations each Grantor hereby grants to the ABL Collateral Agent for the
benefit of the Notes Secured Parties and the Term Secured Parties a lien on and security interest
in all of the right, title and interest of such Grantor, in and to and under the Pledged ABL
Priority Collateral wherever located and whether now existing or hereafter arising or acquired from
time to time. As security for the payment and performance in full of all the Notes Obligations,
each Grantor hereby grants to the Term Collateral Agent for the benefit of the Notes Secured
Parties a lien on and security interest in all of the right, title and interest of such Grantor, in
and to and under the Pledged ABL Priority Collateral wherever located and whether now existing or
hereafter arising or acquired from time to time.




          (ii) Subject to the terms of this Agreement, (x) until the Discharge of ABL Obligations has
occurred, the ABL Collateral Agent shall be entitled to deal with the Pledged ABL Priority
Collateral in accordance with the terms of the ABL Documents as if the Liens of the Term Collateral
Agent under the Term Security Documents and the Liens of the Notes Collateral Agent under the Notes
Security Documents did not exist and (y) following the Discharge of ABL Obligations and until the
Discharge of Term Obligations has occurred, the Term Collateral Agent shall be entitled to deal
with the Pledged ABL Priority Collateral in accordance with the terms of the Term Documents as if
the Liens of the Notes Collateral Agent under the Notes Security Documents did not exist. The
rights of the Term Collateral Agent and the Notes Collateral Agent shall at all times be subject to
the terms of this Agreement and to the ABL Collateral Agent’s rights under the ABL Documents.




          (iii) The ABL Collateral Agent shall have no obligation whatsoever to any ABL Secured Party,
the Term Collateral Agent, any Term Secured Party, the Notes Collateral Agent or any Notes Secured
Party to ensure that the Pledged ABL Priority Collateral is genuine or owned by any of the Grantors
or to preserve rights or benefits of any Person except as expressly set forth in this Section
3.4(f). The duties or responsibilities of the ABL Collateral Agent under this Section 3.4(f) shall
be limited solely to holding the Pledged ABL Priority Collateral as






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bailee or agent in accordance with this Section 3.4(f). The Term Collateral Agent shall have
no obligation whatsoever to any Term Secured Party, the Notes Collateral Agent or any Notes Secured
Party to ensure that the Pledged ABL Priority Collateral is genuine or owned by any of the Grantors
or to preserve rights or benefits of any Person except as expressly set forth in this Section
3.4(f). The duties or responsibilities of the Term Collateral Agent under this Section 3.4(f)
shall be limited solely to holding the Pledged ABL Priority Collateral as bailee or agent in
accordance with this Section 3.4(f).




          (iv) The ABL Collateral Agent acting pursuant to this Section 3.4(f) shall not have by reason
of the ABL Security Documents, the Term Security Documents, the Notes Security Documents, this
Agreement or any other document a fiduciary relationship in respect of any ABL Secured Party, the
Term Collateral Agent, any Term Secured Party, the Notes Collateral Agent or any Notes Secured
Party. The Term Collateral Agent acting pursuant to this Section 3.4(f) shall not have by reason
of the Term Security Documents, the Notes Security Documents, this Agreement or any other document
a fiduciary relationship in respect of any Term Secured Party, the Notes Collateral Agent or any
Notes Secured Party.




          (v) Upon the Discharge of ABL Obligations under the ABL Documents to which the ABL Collateral
Agent is a party, the ABL Collateral Agent shall deliver or cause to be delivered the remaining
Pledged ABL Priority Collateral (if any) in its possession or in the possession of its agents or
bailees, together with any necessary endorsements, first, to the Term Collateral Agent to the
extent Term Obligations remain outstanding, second, to the Notes Collateral Agent to the extent
Notes Obligations remain outstanding, and third, to the applicable Grantor to the extent no ABL
Obligations, Term Obligations or Notes Obligations remain outstanding (in each case, so as to allow
such Person to obtain control of such Pledged ABL Priority Collateral) and will cooperate with the
Term Collateral Agent or Notes Collateral Agent, as applicable, in assigning (without recourse to
or warranty by the ABL Collateral Agent or any ABL Secured Party or agent or bailee thereof)
control over any other Pledged ABL Priority Collateral under its control. The ABL Collateral Agent
further agrees to take all other action reasonably requested by such Person in connection with such
Person obtaining a first priority interest in the Pledged ABL Priority Collateral or as a court of
competent jurisdiction may otherwise direct. Following the Discharge of ABL Obligations and upon
the Discharge of Term Obligations under the Term Documents to which the Term Collateral Agent is a
party, the Term Collateral Agent shall deliver or cause to be delivered the remaining Pledged ABL
Priority Collateral (if any) in its possession or in the possession of its agents or bailees,
together with any necessary endorsements, first, to the Notes Collateral Agent to the extent Notes
Obligations remain outstanding, and second, to the applicable Grantor to the extent no Term
Obligations or Notes Obligations remain outstanding (in each case, so as to allow such Person to
obtain control of such Pledged ABL Priority Collateral) and will cooperate with the Notes
Collateral Agent in assigning (without recourse to or warranty by the Term Collateral Agent or any
Term Secured Party or agent or bailee thereof) control over any other Pledged ABL Priority
Collateral under its control. The Term Collateral Agent further agrees to take all other action
reasonably requested by such Person in connection with such Person obtaining a first priority
interest in the Pledged ABL Priority Collateral or as a court of competent jurisdiction may
otherwise direct.




          (vi) Notwithstanding anything to the contrary herein, if, for any reason, any Term Obligations
remain outstanding upon the Discharge of ABL Obligations, all rights of the






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ABL Collateral Agent hereunder and under the Term Security Documents, the ABL Security
Documents or the Notes Security Documents (1) with respect to the delivery and control of any part
of the ABL Priority Collateral, and (2) to direct, instruct, vote upon or otherwise influence the
maintenance or disposition of such ABL Priority Collateral, shall immediately, and (to the extent
permitted by law) without further action on the part of either of the Term Collateral Agent, the
ABL Collateral Agent or the Notes Collateral Agent, pass to the Term Collateral Agent, who shall
thereafter hold such rights for the benefit of the Term Secured Parties and as bailee for and, with
respect to any collateral that cannot be perfected in such manner, as agent for, the Notes Secured
Parties. Each of the ABL Collateral Agent and the Grantors agrees that it will, if any Term
Obligations or Notes Obligations remain outstanding upon the Discharge of ABL Obligations, take any
other action required by any law or reasonably requested by the Term Collateral Agent or the Notes
Collateral Agent, in connection with the Term Collateral Agent’s establishment and perfection of a
First Priority security interest in the ABL Priority Collateral and the Notes Collateral Agent’s
establishment and perfection of a Second Priority security interest in the ABL Priority Collateral.




          (vii) Notwithstanding anything to the contrary contained herein, if for any reason, prior to
the Discharge of Term Obligations, the ABL Collateral Agent or the Notes Collateral Agent acquires
possession of any Pledged Term Priority Collateral, the ABL Collateral Agent or the Notes
Collateral Agent shall hold same as bailee and/or agent to the same extent as is provided in
preceding clause (i) with respect to Pledged ABL Priority Collateral, provided that as soon
as is practicable the ABL Collateral Agent or the Notes Collateral Agent shall deliver or cause to
be delivered such Pledged Term Priority Collateral to the Term Collateral Agent in a manner
otherwise consistent with the requirements of the preceding clause (v).




          (g) When Discharge of ABL Obligations Deemed to Not Have Occurred. Notwithstanding
anything to the contrary herein, if at any time after the Discharge of ABL Obligations has occurred
(or concurrently therewith) the Company or any other Grantor immediately thereafter (or
concurrently therewith) enters into any Permitted Refinancing of any ABL Obligations, then such
Discharge of ABL Obligations shall automatically be deemed not to have occurred for all purposes of
this Agreement (other than with respect to any actions taken prior to the date of such designation
as a result of the occurrence of such first Discharge of ABL Obligations), and the obligations
under the Permitted Refinancing shall automatically be treated as ABL Obligations (together with
Secured Cash Management Agreements on the basis provided in the definition of “ABL Documents”
contained herein) for all purposes of this Agreement, including for purposes of the Lien priorities
and rights in respect of Collateral set forth herein, the term “ABL Credit Agreement” shall be
deemed appropriately modified to refer to such Permitted Refinancing and the ABL Collateral Agent
under such ABL Documents shall be an ABL Collateral Agent for all purposes hereof and the new
secured parties under such ABL Documents (together with Secured Cash Management Banks as provided
herein) shall automatically be treated as ABL Secured Parties for all purposes of this Agreement.
Upon receipt of a notice stating that the Company or any other Grantor has entered into a new ABL
Document in respect of a Permitted Refinancing of ABL Obligations (which notice shall include the
identity of the new collateral agent, such agent, the “New ABL Agent”), and delivery by the
New ABL Agent of an Intercreditor Agreement Joinder, the Term Collateral Agent and the Notes
Collateral Agent shall promptly (i) enter into such documents and agreements (including amendments
or supplements to this Agreement) as the Company or such New ABL Agent shall reasonably request in
order to pro-






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vide to the New ABL Agent the rights contemplated hereby, in each case consistent in all
material respects with the terms of this Agreement and (ii) deliver to the New ABL Agent any
Pledged ABL Priority Collateral held by the Term Collateral Agent or the Notes Collateral Agent
together with any necessary endorsements (or otherwise allow the New ABL Agent to obtain control of
such Pledged ABL Priority Collateral). The New ABL Agent shall agree to be bound by the terms of
this Agreement. If the new ABL Obligations under the new ABL Documents are secured by assets of
the Grantors of the type constituting ABL Priority Collateral that do not also secure the Term
Obligations and the Notes Obligations, then the Term Obligations shall be secured at such time by a
Second Priority Lien on such assets to the same extent provided in the Term Security Documents with
respect to the other ABL Priority Collateral and the Notes Obligations shall be secured at such
time by a Third Priority Lien on such assets to the same extent provided in the Notes Security
Documents with respect to the other ABL Priority Collateral. If the new ABL Obligations under the
new ABL Documents are secured by assets of the Grantors of the type constituting TL Priority
Collateral that do not also secure the Term Obligations and the Notes Obligations, then the Term
Obligations shall be secured at such time by a First Priority Lien on such assets to the same
extent provided in the Term Security Documents with respect to the other TL Priority Collateral and
the Notes Obligations shall be secured at such time by a Third Priority Lien on such assets to the
same extent provided in the Notes Security Documents with respect to the other TL Priority
Collateral.




          (h) Option to Purchase ABL Obligations.




          (i) Without prejudice to the enforcement of remedies by the ABL Collateral Agent and the ABL
Secured Parties, any Person or Persons (in each case who must meet all eligibility standards
contained in all relevant ABL Documents) at any time or from time to time designated by the holders
of more than 50% in aggregate outstanding principal amount of the Term Obligations under the Term
Credit Agreement as being entitled to exercise all default purchase options as to the Term
Obligations then outstanding (an “Eligible Term Purchaser”) shall have the right to
purchase by way of assignment (and shall thereby also assume all commitments and duties of the Term
Secured Parties), at any time during the exercise period described in clause (iii) below of this
Section 3.4(h), all, but not less than all, of the ABL Obligations (other than the ABL Obligations
of a Defaulting ABL Secured Party (as defined below)), including all principal of and accrued and
unpaid interest and fees on and all prepayment or acceleration penalties and premiums in respect of
all ABL Obligations outstanding at the time of purchase; provided, that at the time of (and
as a condition to) any purchase pursuant to this Section 3.4(h), all commitments pursuant to any
then outstanding ABL Credit Agreement shall have terminated in accordance with their terms. Any
purchase pursuant to this Section 3.4(h)(i) shall be made as follows:




     (1) for (x) a purchase price equal to the sum of (A) in the case of all loans, advances
or other similar extensions of credit that constitute ABL Obligations (including
unreimbursed amounts drawn in respect of letters of credit, but excluding the undrawn amount
of then outstanding letters of credit), 100% of the principal amount thereof and all accrued
and unpaid interest thereon through the date of purchase (without regard, however, to any
acceleration or other prepayment penalties or premiums other than customary breakage costs)
plus (B) all accrued and unpaid fees, expenses, indemnities and other amounts through the
date of purchase; and (y) an obligation on the part of the re-



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spective Eligible Term Purchasers (which shall be expressly provided in the assignment
documentation described below) to reimburse each issuing lender and bank guaranty issuer (or
any ABL Secured Party required to pay same) for all amounts thereafter drawn with respect to
any letters of credit and any bank guaranties constituting ABL Obligations which remain
outstanding after the date of any purchase pursuant to this Section 3.4, together with all
facing fees and other amounts which may at any future time be owing to the respective
issuing lender or bank guaranty issues with respect to such letters of credit and bank
guaranties;



     (2) with the purchase price described in the preceding clause (i)(1)(x) payable in cash
on the date of purchase against transfer to the respective Eligible Term Purchaser or
Eligible Term Purchasers (without recourse and without any representation or warranty
whatsoever, whether as to the enforceability of any ABL Obligation or the validity,
enforceability, perfection, priority or sufficiency of any Lien securing, or guarantee or
other supporting obligation for, any ABL Obligation or as to any other matter whatsoever,
except the representation and warranty that the transferor owns free and clear of all Liens
and encumbrances (other than participation interests not prohibited by the ABL Credit
Agreement, in which case the purchase price described in preceding clause (i)(1)(x) shall be
appropriately adjusted so that the Eligible Term Purchaser or Eligible Term Purchasers do
not pay amounts represented by any participation interest which remains in effect), and has
the right to convey, whatever claims and interests it may have in respect of the ABL
Obligations); provided that the purchase price in respect of any outstanding letter
of credit that remains undrawn on the date of purchase shall be payable in cash as and when
such letter of credit is drawn upon (i) first, from the cash collateral account described in
clause (a)(3) below, until the amounts contained therein have been exhausted, and (ii)
thereafter, directly by the respective Eligible Term Purchaser or Eligible Term Purchasers;




     (3) with such purchase accompanied by a deposit of cash collateral under the sole
dominion and control of the ABL Collateral Agent or its designee in an amount equal to 110%
of the sum of the aggregate undrawn amount of all then outstanding letters of credit and
bank guaranties pursuant to the ABL Documents and the aggregate facing and similar fees
which will accrue thereon through the stated maturity of the letters of credit and bank
guaranties (assuming no drawings thereon before stated maturity), as security for the
respective Eligible Term Purchaser’s or Eligible Term Purchasers’ obligation to pay amounts
as provided in preceding clause (i)(l)(y), it being understood and agreed that (x) at the
time any facing or similar fees are owing to an issuer with respect to any letter of credit,
the ABL Collateral Agent may apply amounts deposited with it as described above to pay same
and (y) upon any drawing under any letter of credit, the ABL Collateral Agent shall apply
amounts deposited with it as described above to repay the respective unpaid drawing. After
giving effect to any payment made as described above in this clause (3), those amounts (if
any) then on deposit with the ABL Collateral Agent as described in this clause (3) which
exceed 110% of the sum of the aggregate undrawn amount of all then outstanding letters of
credit and bank guaranties and the aggregate facing and similar fees (to the respective
issuers) which will accrue thereon through the stated maturity of the then outstanding
letters of credit and bank guaranties (assuming no drawings thereon before stated maturity),
shall be returned to the respective Eligible



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Term Purchaser or Eligible Term Purchasers (as their interests appear). Furthermore,
at such time as all letters of credit and bank guaranties have been cancelled, expired or
been fully drawn, as the case may be, and after all applications described above have been
made, any excess cash collateral deposited as described above in this clause (3) (and not
previously applied or released as provided above) shall be returned to the respective
Eligible Term Purchaser or Eligible Term Purchasers, as their interests appear;




     (4) with the purchase price described in preceding clause (i)(1)(x) accompanied by a
waiver by the Term Collateral Agent (on behalf of itself and the other Term Secured Parties)
of all claims arising out of this Agreement and the transactions contemplated hereby as a
result of exercising the purchase option contemplated by this Section 3.4(h);




     (5) with all amounts payable to the various ABL Secured Parties in respect of the
assignments described above to be distributed to them by the ABL Collateral Agent in
accordance with their respective holdings of the various ABL Obligations; and




     (6) with such purchase to be made pursuant to assignment documentation in form and
substance reasonably satisfactory to, and prepared by counsel for, the ABL Collateral Agent
(with the cost of such counsel to be paid by the Grantors or, if the Grantors do not make
such payment, by the respective Eligible Term Purchaser or Eligible Term Purchasers, who
shall have the right to obtain reimbursement of same from the Grantors); it being understood
and agreed that the ABL Collateral Agent and each other ABL Secured Party shall retain all
rights to indemnification as provided in the relevant ABL Documents for all periods prior to
any assignment by them pursuant to the provisions of this Section 3.4(h). The relevant
assignment documentation shall also provide that, if for any reason (other than the gross
negligence or willful misconduct of the ABL Collateral Agent (as determined by a court of
competent jurisdiction in a final and non-appealable judgment)), the amount of cash
collateral held by the ABL Collateral Agent or its designee pursuant to preceding clause
(a)(3) is at any time less than the full amounts owing with respect to any letter of credit
described above (including facing and similar fees) then the respective Eligible Term
Purchaser or Eligible Term Purchasers shall promptly reimburse the ABL Collateral Agent (who
shall pay the respective issuing bank) the amount of deficiency.



          (ii) The right to exercise the purchase option described in Section 3.4(h)(i) above shall be
exercisable and legally enforceable upon at least ten (10) Business Days’ prior written notice of
exercise (which notice, once given, shall be irrevocable and fully binding on the respective
Eligible Term Purchaser or Eligible Term Purchasers) given to the ABL Collateral Agent by an
Eligible Term Purchaser. Neither the ABL Collateral Agent nor any ABL Secured Party shall have any
disclosure obligation to any Eligible Term Purchaser, the Term Collateral Agent or any Term Secured
Party in connection with any exercise of such purchase option.




          (iii) The right to purchase the ABL Obligations as described in this Section 3.4(h) may be
exercised (by giving the irrevocable written notice described in preceding clause (ii)) during the
period that (1) begins on the date occurring three Business Days after the first to occur of (x)
the date of the acceleration of the final maturity of the loans under the ABL Credit






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Agreement, (y) the occurrence of the final maturity of the loans under the ABL Credit
Agreement or (z) the occurrence of an Insolvency or Liquidation Proceeding with respect to the
Company or any other Grantor which constitutes an event of default under the ABL Credit Agreement
(in each case, so long as the acceleration, failure to pay amounts due at final maturity or such
Insolvency or Liquidation Proceeding constituting an event of default has not been rescinded or
cured within such 10 Business Day period, and so long as any unpaid amounts constituting ABL
Obligations remain owing); provided that if there is any failure to meet the condition
described in the proviso of preceding clause (i) hereof, the aforementioned date shall be extended
until the first date upon which such condition is satisfied, and (2) ends on the 90th day after the
start of the period described in clause (1) above.




          (iv) The obligations of the ABL Secured Parties to sell their respective ABL Obligations under
this Section 3.4(h) are several and not joint and several. To the extent any ABL Secured Party
breaches its obligation to sell its ABL Obligations under this Section 3.4(h) (a “Defaulting
ABL Secured Party”), nothing in this Section 3.4(h) shall be deemed to require the ABL
Collateral Agent or any other ABL Secured Party to purchase such Defaulting ABL Secured Party’s ABL
Obligations for resale to the holders of Term Obligations and in all cases, the ABL Collateral
Agent and each ABL Secured Party complying with the terms of this Section 3.4(h) shall not be
deemed to be in default of this Agreement or otherwise be deemed liable for any action or inaction
of any Defaulting ABL Secured Party; provided that nothing in this clause (iv) shall
require any Eligible Term Purchaser to purchase less than all of the ABL Obligations.




          (v) Each Grantor irrevocably consents to any assignment effected to one or more Eligible Term
Purchasers pursuant to this Section 3.4(h) (so long as they meet all eligibility standards
contained in all relevant Term Documents, other than obtaining the consent of any Grantor to an
assignment to the extent required by such ABL Documents) for purposes of all Term Documents and
hereby agrees that no further consent from such Grantor shall be required.




          3.5. Insolvency or Liquidation Proceedings.




          (a) Finance and Sale Issues.




          (i) Until the Discharge of ABL Obligations has occurred, if the Company or any other Grantor
shall be subject to any Insolvency or Liquidation Proceeding and the ABL Collateral Agent shall
desire to permit the use of cash collateral constituting ABL Priority Collateral on which the ABL
Collateral Agent or any other creditor has a Lien or to permit the Company or any other Grantor to
obtain a DIP Financing, then the Term Collateral Agent, on behalf of itself and the Term Secured
Parties, and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agree
that they will raise no objection to such use of cash collateral constituting ABL Priority
Collateral or to the fact that such DIP Financing may be granted Liens on the ABL Priority
Collateral and will not request adequate protection or any other relief in connection therewith
(except, as expressly agreed by the ABL Collateral Agent or to the extent permitted by Section
3.5(c)) and, to the extent the Liens on the ABL Priority Collateral securing the ABL Obligations
are subordinated or pari passu with the Liens on the ABL Priority Collateral
securing such DIP Financing, the Term Collateral Agent and the Notes Collateral Agent will
subordinate their Liens in the ABL Priority Collateral to the Liens securing such DIP Financing
(and all obligations relating thereto). The Term Collateral Agent, on behalf of the Term Secured






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Parties, and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties,
agree that it will not raise any objection or oppose a sale or other disposition of any ABL
Priority Collateral free and clear of its Liens (subject to attachment of proceeds with respect to
the Second Priority Lien on the ABL Priority Collateral in favor of the Term Collateral Agent and
the Third Priority Lien on the ABL Priority Collateral in favor of the Notes Collateral Agent in
the same order and manner as otherwise set forth herein) or other claims under Section 363 of the
Bankruptcy Code if the ABL Secured Parties have consented to such sale or disposition of such
assets.




          (ii) Following the Discharge of ABL Obligations and until the Discharge of Term Obligations
has occurred, if the Company or any other Grantor shall be subject to any Insolvency or Liquidation
Proceeding and the Term Collateral Agent shall desire to permit the Company or any other Grantor to
obtain a DIP Financing, then the Notes Collateral Agent, on behalf of itself and the Notes Secured
Parties, agrees that it will raise no objection to such use of cash collateral constituting ABL
Priority Collateral or to the fact that such DIP Financing may be granted Liens on the ABL Priority
Collateral and will not request adequate protection or any other relief in connection therewith
(except, as expressly, agreed by the Term Collateral Agent or to the extent permitted by Section
3.5(c)) and, to the extent the Liens on the ABL Priority Collateral securing the Term Obligations
are subordinated or pari passu with the Liens on the ABL Priority Collateral
securing such DIP Financing, the Notes Collateral Agent will subordinate its Liens in the ABL
Priority Collateral to the Liens securing such DIP Financing (and all obligations relating
thereto). Following the Discharge of ABL Obligations, the Notes Collateral Agent, on behalf of the
Notes Secured Parties, agrees that it will not raise any objection or oppose a sale or other
disposition of any ABL Priority Collateral free and clear of its Liens (subject to attachment of
proceeds with respect to the Third Priority Lien on the ABL Priority Collateral in favor of the
Notes Collateral Agent in the same order and manner as otherwise set forth herein) or other claims
under Section 363 of the Bankruptcy Code if the Term Secured Parties have consented to such sale or
disposition of such assets.




          (b) Relief from the Automatic Stay. Until the Discharge of ABL Obligations has
occurred, the Term Collateral Agent, on behalf of itself and the Term Secured Parties, and the
Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that none of them
shall seek relief from the automatic stay or any other stay in any Insolvency or Liquidation
Proceeding in respect of the ABL Priority Collateral, without the prior written consent of the ABL
Collateral Agent. Following the Discharge of ABL Obligations, until the Discharge of Term
Obligations has occurred, the Notes Collateral Agent, on behalf of itself and the Notes Secured
Parties, agrees that none of them shall seek relief from the automatic stay or any other stay in
any Insolvency or Liquidation Proceeding in respect of the ABL Priority Collateral without the
prior written consent of the Term Collateral Agent.




          (c) Adequate Protection.




          (i) The Term Collateral Agent, on behalf of itself and the Term Secured Parties, and the Notes
Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that none of them shall
contest (or support any other person contesting) (i) any request by the ABL Collateral Agent or the
ABL Secured Parties for adequate protection with respect to any ABL Priority Collateral or (ii) any
objection by the ABL Collateral Agent or the ABL Secured Parties to any motion, relief, action or
proceeding based on the ABL Collateral Agent or the ABL Se-






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cured Parties claiming a lack of adequate protection with respect to the ABL Priority
Collateral. Notwithstanding the foregoing provisions in this Section 3.5(c), in any Insolvency or
Liquidation Proceeding, (A) if the ABL Secured Parties (or any subset thereof) are granted adequate
protection in the form of additional collateral in the nature of assets constituting ABL Priority
Collateral in connection with any DIP Financing, then the Term Collateral Agent, on behalf of
itself or any of the Term Secured Parties, and the Notes Collateral Agent, on behalf of itself and
the Notes Secured Parties, may seek or request adequate protection in the form of a Lien on such
additional collateral, which Lien of the Term Collateral Agent will be subordinated to the Liens
securing the ABL Obligations and such DIP Financing (and all obligations relating thereto) on the
same basis as the other Liens on ABL Priority Collateral securing the Term Obligations are so
subordinated to the ABL Obligations under this Agreement and which Lien of the Notes Collateral
Agent will be subordinated to the Liens securing the ABL Obligations, such DIP Financing (and all
obligations relating thereto) and the Term Obligations on the same basis as the other Liens on ABL
Priority Collateral securing the Notes Obligations are so subordinated to the ABL Obligations and
Term Obligations under this Agreement, and (B) in the event the Term Collateral Agent, on behalf of
itself and the Term Secured Parties, or the Notes Collateral Agent, on behalf of itself and the
Notes Secured Parties, seeks or requests adequate protection in respect of ABL Priority Collateral
securing Term Obligations or the Notes Obligations, as applicable, and such adequate protection is
granted in the form of additional collateral in the nature of assets constituting ABL Priority
Collateral, then the Term Collateral Agent, on behalf of itself or any of the Term Secured Parties,
and the Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that the
ABL Collateral Agent shall also be granted a senior Lien on such additional collateral as security
for the ABL Obligations and for any such DIP Financing provided by the ABL Secured Parties and that
any Lien on such additional collateral securing the Term Obligations and the Notes Obligations
shall be subordinated to the Liens on such collateral securing the ABL Obligations and any such DIP
Financing provided by the ABL Secured Parties (and all obligations relating thereto) and to any
other Liens granted to the ABL Secured Parties as adequate protection on the same basis as the
other Liens on ABL Priority Collateral securing the Term Obligations and Notes Obligations are so
subordinated to such ABL Obligations under this Agreement.




          (ii) Prior to the Discharge of Term Obligations, the Notes Collateral Agent, on behalf of
itself and the Notes Secured Parties, agrees that none of them shall contest (or support any other
person contesting) (i) any request by the Term Collateral Agent or the Term Secured Parties for
adequate protection with respect to any ABL Priority Collateral or (ii) any objection by the Term
Collateral Agent or the Term Secured Parties to any motion, relief, action or proceeding based on
the Term Collateral Agent or the Term Secured Parties claiming a lack of adequate protection with
respect to the ABL Priority Collateral. Notwithstanding the foregoing provisions in this Section
3.5(c), in any Insolvency or Liquidation Proceeding, (A) if the Term Secured Parties (or any subset
thereof) are granted adequate protection in the form of additional collateral in the nature of
assets constituting ABL Priority Collateral in connection with any DIP Financing, then the Notes
Collateral Agent, on behalf of itself and the Notes Secured Parties, may seek or request adequate
protection in the form of a Lien on such additional collateral, which Lien will be subordinated to
the Liens securing the Term Obligations and such DIP Financing (and all obligations relating
thereto) on the same basis as the other Liens on ABL Priority Collateral securing the Notes
Obligations are so subordinated to the Term Obligations under this Agreement, and (B) in the event
the Notes Collateral Agent, on behalf of itself and the Notes






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Secured Parties, seeks or requests adequate protection in respect of ABL Priority Collateral
securing the Notes Obligations, and such adequate protection is granted in the form of additional
collateral in the nature of assets constituting ABL Priority Collateral, then the Notes Collateral
Agent, on behalf of itself and the Notes Secured Parties, agrees that the Term Collateral Agent
shall also be granted a senior Lien on such additional collateral as security for the Term
Obligations and for any such DIP Financing provided by the Term Secured Parties and that any Lien
on such additional collateral securing the Notes Obligations shall be subordinated to the Liens on
such collateral securing the Term Obligations and any such DIP Financing provided by the Term
Secured Parties (and all obligations relating thereto) and to any other Liens granted to the Term
Secured Parties as adequate protection on the same basis as the other Liens on ABL Priority
Collateral securing the Notes Obligations are so subordinated to such Term Obligations under this
Agreement.




          (d) No Waiver. Subject to the proviso in clause (ii) of Section 3.2(a), nothing
contained herein shall prohibit or in any way limit the ABL Collateral Agent or any ABL Secured
Party from objecting in any Insolvency or Liquidation Proceeding or otherwise to any action taken
by the Term Collateral Agent, any of the Term Secured Parties, the Notes Collateral Agent or any of
the Notes Secured Parties in respect of the ABL Priority Collateral, including the seeking by the
Term Collateral Agent, any Term Secured Parties, the Notes Collateral Agent or any Notes Secured
Parties of adequate protection in respect thereof or the asserting by the Term Collateral Agent,
any Term Secured Parties, the Notes Collateral Agent or any Notes Secured Parties of any of its
rights and remedies under the Term Documents, the Notes Documents or otherwise in respect thereof.
Subject to the proviso in clause (ii) of Section 3.2(b), nothing contained herein shall prohibit or
in any way limit the Term Collateral Agent or any Term Secured Party from objecting in any
Insolvency or Liquidation Proceeding or otherwise to any action taken by the Notes Collateral Agent
or any of the Notes Secured Parties in respect of the ABL Priority Collateral, including the
seeking by the Notes Collateral Agent or any Notes Secured Parties of adequate protection in
respect thereof or the asserting by the Notes Collateral Agent or any Notes Secured Parties of any
of its rights and remedies under the Notes Documents or otherwise in respect thereof.




          (e) Reorganization Securities. If, in any Insolvency or Liquidation Proceeding, debt
obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor
are distributed, pursuant to a plan of reorganization or similar dispositive restructuring plan, on
account of ABL Obligations, on account of Term Obligations and on account of the Notes Obligations,
then, to the extent the debt obligations distributed on account of the ABL Obligations, on account
of the Term Obligations and on account of the Notes Obligations are secured by Liens upon the same
property, the provisions of this Agreement will survive the distribution of such debt obligations
pursuant to such plan and will apply with like effect to the Liens securing such debt obligations.




          (f) Post-Petition Interest.




          (i) None of the Term Collateral Agent, any Term Secured Party, the Notes Collateral Agent or
any Notes Secured Party shall oppose or seek to challenge any claim by the ABL Collateral Agent or
any ABL Secured Party for allowance in any Insolvency or Liquidation Proceeding of ABL Obligations
consisting of post-petition interest, fees or expenses to the extent






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of the value of the ABL Secured Party’s Lien on the ABL Priority Collateral, without regard to
the existence of the Lien of the Term Collateral Agent on behalf of the Term Secured Parties on the
ABL Priority Collateral or the Lien of the Notes Collateral Agent on behalf of the Notes Secured
Parties on the ABL Priority Collateral. None of the Notes Collateral Agent or any Notes Secured
Party shall oppose or seek to challenge any claim by the Term Collateral Agent or any Term Secured
Party for allowance in any Insolvency or Liquidation Proceeding of Term Obligations consisting of
post-petition interest, fees or expenses to the extent of the value of the Term Secured Party’s
Lien on the ABL Priority Collateral, without regard to the existence of the Lien of the Notes
Collateral Agent on behalf of the Notes Secured Parties on the ABL Priority Collateral.




          (ii) Neither the ABL Collateral Agent nor any other ABL Secured Party shall oppose or seek to
challenge any claim by the Term Collateral Agent, any Term Secured Party, the Notes Collateral
Agent or any Notes Secured Party for allowance in any Insolvency or Liquidation Proceeding of Term
Obligations or Notes Obligations consisting of post-petition interest, fees or expenses to the
extent of the value of the Lien of the Term Collateral Agent on behalf of the Term Secured Parties
on the ABL Priority Collateral or the Lien of the Notes Collateral Agent on behalf of the Notes
Secured Parties on the ABL Priority Collateral (after taking into account the Lien of the ABL
Secured Parties on the ABL Priority Collateral and with respect to the Lien of the Notes Collateral
Agent, after taking into account the Lien of the Term Secured Parties on the ABL Priority
Collateral). Neither the Term Collateral Agent nor any other Term Secured Party shall oppose or
seek to challenge any claim by the Notes Collateral Agent or any Notes Secured Party for allowance
in any Insolvency or Liquidation Proceeding of Notes Obligations consisting of post-petition
interest, fees or expenses to the extent of the value of the Lien of the Notes Collateral Agent on
behalf of the Notes Secured Parties on the ABL Priority Collateral (after taking into account the
Lien of the ABL Secured Parties and the Term Secured Parties on the ABL Priority Collateral).




          (g) Waiver. The Term Collateral Agent, for itself and on behalf of the Term Secured
Parties, and the Notes Collateral Agent, for itself and on behalf of the Notes Secured Parties,
waive any claim they may hereafter have against any ABL Secured Party arising out of the election
of any ABL Secured Party of the application of Section 1111(b)(2) of the Bankruptcy Code, and/or
out of any cash collateral or financing arrangement or out of any grant of a security interest in
connection with the ABL Priority Collateral in any Insolvency or Liquidation Proceeding.




          3.6. Reliance; Waivers; Etc.




          (a) Reliance. Other than any reliance on the terms of this Agreement, the Term
Collateral Agent, on behalf of itself and the Term Secured Parties, and the Notes Collateral Agent,
for itself and on behalf of the Notes Secured Parties, acknowledge that they and such Term Secured
Parties and Notes Secured Parties have, independently and without reliance on the ABL Collateral
Agent or any ABL Secured Parties, and based on documents and information deemed by them
appropriate, made their own credit analysis and decision to enter into such Term Documents and
Notes Documents and be bound by the terms of this Agreement and they will continue to make their
own credit decision in taking or not taking any action under the Term Credit Agreement, the
Indentures or this Agreement.







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          (b) No Warranties or Liability. The Term Collateral Agent, on behalf of itself and
the Term Obligations, and the Notes Collateral Agent, for itself and on behalf of the Notes Secured
Parties, acknowledge and agree that the ABL Collateral Agent and the ABL Secured Parties have made
no express or implied representation or warranty, including with respect to the execution,
validity, legality, completeness, collectability or enforceability of any of the ABL Documents, the
ownership of any Collateral or the perfection or priority of any Liens thereon. The ABL Secured
Parties will be entitled to manage and supervise their respective loans and extensions of credit
under their respective ABL Documents in accordance with law and as they may otherwise, in their
sole discretion, deem appropriate. The ABL Collateral Agent and the ABL Secured Parties shall have
no duty to the Term Collateral Agent, or any of the Term Secured Parties, the Notes Collateral
Agent or any of the Notes Secured Parties to act or refrain from acting in a manner which allows,
or results in, the occurrence or continuance of an event of default or default under any agreements
with the Company or any other Grantor (including the ABL Documents, the Term Documents and the
Notes Documents), regardless of any knowledge thereof which they may have or be charged with.




          (c) No Waiver of Lien Priorities.




          (i) No right of the ABL Secured Parties, the ABL Collateral Agent or any of them to enforce
any provision of this Agreement or any ABL Document shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or any other Grantor or by any act
or failure to act by any ABL Secured Party or the ABL Collateral Agent, or by any noncompliance by
any Person with the terms, provisions and covenants of this Agreement, any of the ABL Documents,
any of the Term Documents or any of the Notes Documents, regardless of any knowledge thereof which
the ABL Collateral Agent or the ABL Secured Parties, or any of them, may have or be otherwise
charged with.




          (ii) Without in any way limiting the generality of the foregoing paragraph (but subject to the
rights of the Company and the other Grantors under the ABL Documents and subject to the provisions
of Section 3.4(c)), the ABL Secured Parties, the ABL Collateral Agent and any of them may, at any
time and from time to time in accordance with the ABL Documents and/or applicable law, without the
consent of, or notice to, the Term Collateral Agent, any Term Secured Party, the Notes Collateral
Agent or any Notes Secured Party without incurring any liabilities to the Term Collateral Agent,
any Term Secured Parties, the Notes Collateral Agent or any Notes Secured Party and without
impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if
any right of subrogation or other right or remedy of the Term Collateral Agent, any Term Secured
Party, the Notes Collateral Agent or any Notes Secured Party is affected, impaired or extinguished
thereby) do any one or more of the following:





     (1) sell, exchange, realize upon, enforce or otherwise deal with in any manner (subject
to the terms hereof) and in any order any part of the ABL Priority Collateral or any
liability of the Company or any other Grantor to the ABL Secured Parties or the ABL
Collateral Agent, or any liability incurred directly or indirectly in respect thereof;




     (2) settle or compromise any ABL Obligation or any other liability of the Company or
any other Grantor or any security therefor or any liability incurred directly or indirectly
in respect thereof; and



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     (3) exercise or delay in or refrain from exercising any right or remedy against the
Company or any security or any other Grantor or any other Person, elect any remedy and
otherwise deal freely with the Company, any other Grantor or any ABL Priority Collateral and
any security and any guarantor or any liability of the Company or any other Grantor to the
ABL Secured Parties or any liability incurred directly or indirectly in respect thereof.



          (iii) The Term Collateral Agent, on behalf of itself and the Term Secured Parties, and the
Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, also agree that the ABL
Secured Parties and the ABL Collateral Agent shall have no liability to the Term Collateral Agent,
any Term Secured Party, the Notes Collateral Agent or any Notes Secured Party, and the Term
Collateral Agent, on behalf of itself and the Term Secured Parties, and the Notes Collateral Agent,
on behalf of itself and the Notes Secured Parties, hereby waive any claim against any ABL Secured
Party or the ABL Collateral Agent, arising out of any and all actions which the ABL Secured Parties
or the ABL Collateral Agent may take or permit or omit to take with respect to:





     (1) the ABL Documents (other than this Agreement);




     (2) the collection of the ABL Obligations; or




     (3) the foreclosure upon, or sale, liquidation or other disposition of, any ABL
Priority Collateral.



          The Term Collateral Agent, on behalf of itself and the Term Secured Parties, and the Notes
Collateral Agent, on behalf of itself and the Notes Secured Parties, agree that the ABL Secured
Parties and the ABL Collateral Agent have no duty to the Term Collateral Agent, the Term Secured
Parties, the Notes Collateral Agent or the Notes Secured Parties in respect of the maintenance or
preservation of the ABL Priority Collateral, the ABL Obligations or otherwise.




          (iv) The Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, also
agrees that the Term Secured Parties and the Term Collateral Agent shall have no liability to the
Notes Collateral Agent or any Notes Secured Party, and the Notes Collateral Agent, on behalf of
itself and the Notes Secured Parties, hereby waives any claim against any Term Secured Party or the
Term Collateral Agent, arising out of any and all actions which the Term Secured Parties or the
Term Collateral Agent may take or permit or omit to take with respect to:





     (1) the Term Documents (other than this Agreement);




     (2) the collection of the Term Obligations; or




     (3) the foreclosure upon, or sale, liquidation or other disposition of, any ABL
Priority Collateral.



          The Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees that the
Term Secured Parties and the Term Collateral Agent have no duty to the Notes Collateral Agent or
the Notes Secured Parties in respect of the maintenance or preservation of the ABL Priority
Collateral, the Term Obligations or otherwise.







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          (v) The Term Collateral Agent, on behalf of itself and the Term Secured Parties, and the Notes
Collateral Agent, on behalf of itself and the Notes Secured Parties, agree not to assert and hereby
waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise
assert or otherwise claim the benefit of, any marshalling, appraisal, valuation or other similar
right that may otherwise be available under applicable law with respect to the ABL Priority
Collateral or any other similar rights a junior secured creditor may have under applicable law.




          (vi) The Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, agrees not
to assert and hereby waive, to the fullest extent permitted by law, any right to demand, request,
plead or otherwise assert or otherwise claim the benefit of, any marshalling, appraisal, valuation
or other similar right that may otherwise be available under applicable law with respect to the ABL
Priority Collateral or any other similar rights a junior secured creditor may have under applicable
law.




          (d) Obligations Unconditional. All rights, interests, agreements and obligations of
the ABL Collateral Agent and the ABL Secured Parties and the Term Collateral Agent, the Term
Secured Parties, the Notes Collateral Agent and the Notes Secured Parties, respectively, hereunder
shall remain in full force and effect irrespective of:





     (i) any lack of validity or enforceability of any ABL Document, any Term Document or
any Notes Document;




     (ii) except as otherwise set forth in the Agreement, any change permitted hereunder in
the time, manner or place of payment of, or in any other terms of, all or any of the ABL
Obligations, Term Obligations or Notes Document, or any amendment or waiver or other
modification permitted hereunder, whether by course of conduct or otherwise, of the terms of
any ABL Document, any Term Document or any Notes Document;




     (iii) any exchange of any security interest in any ABL Priority Collateral or any
amendment, waiver or other modification permitted hereunder, whether in writing or by course
of conduct or otherwise, of all or any of the ABL Obligations, Term Obligations or Notes
Obligations;




     (iv) the commencement of any Insolvency or Liquidation Proceeding in respect of the
Company or any other Grantor; or




     (v) any other circumstances which otherwise might constitute a defense available to, or
a discharge of, the Company or any other Grantor in respect of the ABL Obligations, or of
the Term Collateral Agent or any Term Secured Party, or of the Notes Collateral Agent or any
Notes Secured Party in respect of this Agreement.


Section 4. Cooperation With Respect To ABL Priority Collateral.




          4.1. Consent to License to Use Intellectual Property. The Term Collateral Agent and
the Notes Collateral Agent (and any purchaser, assignee or transferee of assets as provided in
Section 4.3) (a) consent (without any representation, warranty or obligation whatsoever)






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to the grant by any Grantor to the ABL Collateral Agent of a non-exclusive royalty-free
license to use for a period not to exceed 180 days (commencing with the initiation of any
enforcement of Liens by any of the Term Collateral Agent (provided that the ABL Collateral
Agent and the Notes Collateral Agent have received notice thereof), the ABL Collateral Agent or the
Notes Collateral Agent) any Patent, Trademark or proprietary information of such Grantor that is
subject to a Lien held by the Term Collateral Agent or the Notes Collateral Agent (or any Patent,
Trademark or proprietary information acquired by such purchaser, assignee or transferee from any
Grantor, as the case may be) and (b) grant, in its capacity as a secured party (or as a purchaser,
assignee or transferee, as the case may be), to the ABL Collateral Agent a non-exclusive
royalty-free license to use for a period not to exceed 180 days (commencing with (x) the initiation
of any enforcement of Liens by the Term Collateral Agent (provided that the ABL Collateral
Agent and the Notes Collateral Agent have received notice thereof) or the ABL Collateral Agent or
(y) the purchase, assignment or transfer of, as the case may be, any Patent, Trademark or
proprietary information that is subject to a Lien held by the Term Collateral Agent or Notes
Collateral Agent (or subject to such purchase, assignment or transfer, as the case may be), in each
case in connection with the enforcement of any Lien held by the ABL Collateral Agent upon any
Inventory or other ABL Priority Collateral of any Grantor and to the extent the use of such Patent,
Trademark or proprietary information is necessary or appropriate, in the good faith opinion of the
ABL Collateral Agent, to process, ship, produce, store, complete, supply, lease, sell or otherwise
dispose of any such inventory in any lawful manner.




          4.2. Access to Information. If the Term Collateral Agent or the Notes Collateral
Agent takes actual possession of any documentation of a Grantor (whether such documentation is in
the form of a writing or is stored in any data equipment or data record in the physical possession
of the Term Collateral Agent or the Notes Collateral Agent), then upon request of the ABL
Collateral Agent and reasonable advance notice, the Term Collateral Agent or the Notes Collateral
Agent, as applicable, will permit the ABL Collateral Agent or its representative to inspect and
copy such documentation if and to the extent the ABL Collateral Agent certifies to the Term
Collateral Agent or the Notes Collateral Agent, as applicable, that:





     (a) such documentation contains or may contain information necessary or appropriate, in
the good faith opinion of the ABL Collateral Agent, to the enforcement of the ABL Collateral
Agent’s Liens upon any ABL Priority Collateral; and




     (b) the ABL Collateral Agent and the ABL Secured Parties are entitled to receive and
use such information under applicable law and, in doing so, will comply with all obligations
imposed by law or contract in respect of the disclosure or use of such information.



          4.3. Access to Property to Process and Sell Inventory.




          (a) (i) If the ABL Collateral Agent commences any action or proceeding with respect to any of
its rights or remedies (including, but not limited to, any action of foreclosure), enforcement,
collection or execution with respect to the ABL Priority Collateral (“ABL Priority Collateral
Enforcement Actions”) or if the Term Collateral Agent commences any action or proceeding with
respect to any of its rights or remedies (including any action of foreclosure), enforcement,
collection or execution with respect to the TL Priority Collateral and the Term Col-






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lateral Agent (or a purchaser at a foreclosure sale conducted in foreclosure of any Term
Collateral Agent’s Liens) takes actual or constructive possession of TL Priority Collateral of any
Grantor (“TL Priority Collateral Enforcement Actions”), then the Term Secured Parties and
the Term Collateral Agent shall (subject to, in the case of any TL Priority Collateral Enforcement
Action, a prior written request by the ABL Collateral Agent to the Term Collateral Agent (the
"TL Priority Collateral Enforcement Action Notice”)) (x) cooperate with the ABL Collateral
Agent (and with its officers, employees, representatives and agents) in its efforts to conduct ABL
Priority Collateral Enforcement Actions in the ABL Priority Collateral and to finish any
work-in-process and process, ship, produce, store, complete, supply, lease, sell or otherwise
handle, deal with, assemble or dispose of, in any lawful manner, the ABL Priority Collateral, (y)
not hinder or restrict in any respect the ABL Collateral Agent from conducting ABL Priority
Collateral Enforcement Actions in the ABL Priority Collateral or from finishing any work-in-process
or processing, shipping, producing, storing, completing, supplying, leasing, selling or otherwise
handling, dealing with, assembling or disposing of, in any lawful manner, the ABL Priority
Collateral, and (z) permit the ABL Collateral Agent, its employees, agents, advisers and
representatives, at the cost and expense of the ABL Secured Parties (but with the Grantors’
reimbursement and indemnity obligation with respect thereto, which shall not be limited), to enter
upon and use the TL Priority Collateral (including, without limitation, equipment, processors,
computers and other machinery related to the storage or processing of records, documents or files
and intellectual property), for a period commencing on (I) the date of the initial ABL Priority
Collateral Enforcement Action or the date of delivery of the TL Priority Collateral Enforcement
Action Notice, as the case may be, and (II) ending on the earlier of the date occurring 180 days
thereafter and the date on which all ABL Priority Collateral (other than ABL Priority Collateral
abandoned by the ABL Collateral Agent in writing) has been removed from the TL Priority Collateral
(such period, the “ABL Priority Collateral Processing and Sale Period”), for purposes of:





     (A) assembling and storing the ABL Priority Collateral and completing the processing of
and turning into finished goods any ABL Priority Collateral consisting of work-in-process;




     (B) selling any or all of the ABL Priority Collateral located in or on such TL Priority
Collateral, whether in bulk, in lots or to customers in the ordinary course of business or
otherwise;




     (C) removing and transporting any or all of the ABL Priority Collateral located in or
on such TL Priority Collateral;




     (D) otherwise processing, shipping, producing, storing, completing, supplying, leasing,
selling or otherwise handling, dealing with, assembling or disposing of, in any lawful
manner, the ABL Priority Collateral; and/or




     (E) taking reasonable actions to protect, secure, and otherwise enforce the rights or
remedies of the ABL Secured Parties and/or the ABL Collateral Agent (including with respect
to any ABL Priority Collateral Enforcement Actions) in and to the ABL Priority Collateral;



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provided, however, that nothing contained in this Agreement shall restrict the
rights of the Term Collateral Agent from selling, assigning or otherwise transferring any TL
Priority Collateral prior to the expiration of such ABL Priority Collateral Processing and Sale
Period if the purchaser, assignee or transferee thereof agrees in writing (for the benefit of the
ABL Collateral Agent and the ABL Secured Parties) to be bound by the provisions of this Section 4.3
and Section 4.1. If any stay or other order prohibiting the exercise of remedies with respect to
the ABL Priority Collateral has been entered by a court of competent jurisdiction, such ABL
Priority Collateral Processing and Sale Period shall be tolled during the pendency of any such stay
or other order.




          (ii) During the period of actual occupation, use and/or control by the ABL Secured Parties
and/or the ABL Collateral Agent (or their respective employees, agents, advisers and
representatives) of any TL Priority Collateral, the ABL Secured Parties and the ABL Collateral
Agent shall be obligated to repair at their expense any physical damage to such TL Priority
Collateral resulting from such occupancy, use or control, and to leave such TL Priority Collateral
in substantially the same condition as it was at the commencement of such occupancy, use or
control, ordinary wear and tear excepted. Notwithstanding the foregoing, in no event shall the ABL
Secured Parties or the ABL Collateral Agent have any liability to the Term Secured Parties and/or
to the Term Collateral Agent pursuant to this Section 4.3(a) as a result of any condition
(including any environmental condition, claim or liability) on or with respect to the TL Priority
Collateral existing prior to the date of the exercise by the ABL Secured Parties (or the ABL
Collateral Agent, as the case may be) of their rights under this Section 4.3(a) and the ABL Secured
Parties shall have no duty or liability to maintain the TL Priority Collateral in a condition or
manner better than that in which it was maintained prior to the use thereof by the ABL Secured
Parties, or for any diminution in the value of the TL Priority Collateral that results from
ordinary wear and tear resulting from the use of the TL Priority Collateral by the ABL Secured
Parties in the manner and for the time periods specified under this Section 4.3(a). Without
limiting the rights granted in this Section 4.3(a), the ABL Secured Parties and the ABL Collateral
Agent shall cooperate with the Term Secured Parties and/or the Term Collateral Agent in connection
with any efforts made by the Term Secured Parties and/or the Term Collateral Agent to sell the TL
Priority Collateral.




          (b) the Term Collateral Agent shall be entitled, as a condition of permitting such access and
use, to demand and receive assurances reasonably satisfactory to it that the access or use
requested and all activities incidental thereto:





     (i) will be permitted, lawful and enforceable under applicable law and will be
conducted in accordance with prudent manufacturing practices; and




     (ii) will be adequately insured for damage to property and liability to persons,
including property and liability insurance for the benefit of the Term Collateral Agent and
the holders of the Term Obligations, at no cost to the Term Collateral Agent or such
holders.


The Term Collateral Agent (x) shall provide reasonable cooperation to the ABL Collateral Agent in
connection with the manufacture, production, completion, handling, removal and sale of any ABL
Priority Collateral by the ABL Collateral Agent as provided above and (y) shall be entitled






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to receive, from the ABL Collateral Agent, fair compensation and reimbursement for their reasonable
costs and expenses incurred in connection with such cooperation, support and assistance to the ABL
Collateral Agent. The Term Collateral Agent and/or any such purchaser (or its transferee or
successor) shall not otherwise be required to manufacture, produce, complete, remove, insure,
protect, store, safeguard, sell or deliver any inventory subject to any First Priority Lien held by
the ABL Collateral Agent or to provide any support, assistance or cooperation to the ABL Collateral
Agent in respect thereof.




          4.4. Term Collateral Agent Assurances. The Term Collateral Agent may condition its
performance of any obligation set forth in this Article 4 upon its prior receipt (without cost to
it) of:





     (a) such assurances as it may reasonably request to confirm that the performance of
such obligation and all activities of the ABL Collateral Agent or its officers, employees
and agents in connection therewith or incidental thereto:




     (i) will be permitted, lawful and enforceable under applicable law; and




     (ii) will not impose upon the Term Collateral Agent (or any Term Secured Party)
any legal duty, legal liability or risk of uninsured loss; and




     (b) such indemnity or insurance as the Term Collateral Agent may reasonably request in
connection therewith.



          4.5. Grantor Consent. The Company and the other Grantors consent to the performance
by the Term Collateral Agent of the obligations set forth in this Article 4 and acknowledge and
agree that neither the Term Collateral Agent (nor any holder of Term Obligations) shall ever be
accountable or liable for any action taken or omitted by the ABL Collateral Agent or any ABL
Secured Party or its or any of their officers, employees, agents successors or assigns in
connection therewith or incidental thereto or in consequence thereof, including any improper use or
disclosure of any proprietary information or other intellectual property by the ABL Collateral
Agent or any ABL Secured Party or its or any of their officers, employees, agents, successors or
assigns or any other damage to or misuse or loss of any property of the Grantors as a result of any
action taken or omitted by the ABL Collateral Agent or its officers, employees, agents, successors
or assigns.



Section 5. Application of Proceeds.




          5.1. Application of Proceeds in Distributions by the Term Collateral Agent.




          (a) The Term Collateral Agent will apply the proceeds of any collection, sale, foreclosure or
other realization upon any TL Priority Collateral and, after the Discharge of ABL Obligations, the
proceeds of any collection, sale, foreclosure or other realization of any ABL Priority Collateral
by Term Collateral Agent as expressly permitted hereunder, and, in each case the proceeds of any
title insurance policy required under any Term Document, ABL Document or Notes Document, in the
following order of application:







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     First, to the payment of all amounts payable under the Term Documents on account of the
Term Collateral Agent’s fees and any reasonable legal fees, costs and expenses or other
liabilities of any kind incurred by the Term Collateral Agent or any co-trustee or agent of
the Term Collateral Agent in connection with any Term Document;




     Second, to the Term Administrative Agent for application to the payment of all
outstanding Term Obligations (including, without limitation, Bermuda Guaranteed Obligations)
that are then due and payable in such order as may be provided in the Term Documents in an
amount sufficient to pay in full in cash all outstanding Term Obligations that are then due
and payable (including all interest accrued thereon after the commencement of any Insolvency
or Liquidation Proceeding at the rate, and including any applicable post-default rate,
specified in the Term Documents, even if such interest is not enforceable, allowable or
allowed as a claim in such proceeding and including the discharge or cash collateralization
(at 110% of the aggregate undrawn amount (as determined by the Term Administrative Agent))
of all outstanding letters of credit and bank guaranties, if any, constituting Term
Obligations);




     Third, to the payment of all amounts payable under the ABL Documents on account of the
ABL Collateral Agent’s fees and any reasonable legal fees, costs and expenses or other
liabilities of any kind incurred by the ABL Collateral Agent or any co-Notes Collateral
Agent or agent of the ABL Collateral Agent in connection with any ABL Document;




     Fourth, to the ABL Administrative Agent for application to the payment of all
outstanding ABL Obligations that are then due and payable in such order as may be provided
in the ABL Documents in an amount sufficient to pay in full in cash all outstanding ABL
Obligations that are then due and payable (including all interest accrued thereon after the
commencement of any Insolvency or Liquidation Proceeding at the rate, including any
applicable post-default rate, specified in the ABL Documents, even if such interest is not
enforceable, allowable or allowed as a claim in such proceeding, and including the discharge
or cash collateralization (at 110% of the aggregate undrawn amount) of all outstanding
letters of credit and bank guaranties, if any, constituting ABL Obligations);




     Fifth, to the payment of all amounts payable under the Notes Documents on account of
the Notes Collateral Agent’s fees and any reasonable legal fees, costs and expenses or other
liabilities of any kind incurred by the Notes Collateral Agent or any co-trustee or agent of
the Notes Collateral Agent in connection with any Notes Document;




     Sixth, to the Notes Collateral Agent for application to the payment of all outstanding
Notes Obligations that are then due and payable in such order as may be provided in the
Notes Documents in an amount sufficient to pay in full in cash all outstanding Notes
Obligations that are then due and payable (including all interest accrued thereon after the
commencement of any Insolvency or Liquidation Proceeding at the rate, including any
applicable post-default rate, specified in the Notes Documents, even if such interest is not
enforceable, allowable or allowed as a claim in such proceeding); and



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     Seventh, any surplus remaining after the payment in full in cash of the amounts
described in the preceding clauses will be paid to the Company or the applicable Grantor, as
the case may be, its successors or assigns, or as a court of competent jurisdiction may
direct.



          (b) In connection with the application of proceeds pursuant to Section 5.1(a), except as
otherwise directed by the Required Lenders under (and as defined in) the Term Documents, the Term
Collateral Agent may sell any non-cash proceeds for cash prior to the application of the proceeds
thereof.




          (c) If the Term Collateral Agent or any Term Secured Party collects or receives any proceeds
of such foreclosure, collection or other enforcement that should have been applied to the payment
of the ABL Obligations or Notes Obligations in accordance with Section 5.2(a) below, whether after
the commencement of an Insolvency or Liquidation Proceeding or otherwise, such Term Secured Party
will forthwith deliver the same to the ABL Collateral Agent, for the account of the holders of the
ABL Obligations, or to the Notes Collateral Agent, for the account of the holders of the Notes
Obligations, as applicable, to be applied in accordance with Section 5.2(a). Until so delivered,
such proceeds will be held by that Term Secured Party for the benefit of the holders of the ABL
Obligations and Notes Obligations.




          5.2. Application of Proceeds in Distributions by the ABL Collateral Agent.




          (a) The ABL Collateral Agent will apply the proceeds of any collection, sale, foreclosure or
other realization upon any ABL Priority Collateral and, after the Discharge of Term Obligations,
the proceeds of any collection, sale, foreclosure or other realization of any TL Priority
Collateral by the ABL Collateral Agent as expressly permitted hereunder, and the proceeds of any
title insurance policy required under any Term Document, ABL Document or Notes Document permitted
to be received by it, in the following order of application:




     First, to the payment of all amounts payable under the ABL Documents on account of the
ABL Collateral Agent’s fees and any reasonable legal fees, costs and expenses or other
liabilities of any kind incurred by the ABL Collateral Agent or any co-trustee or agent of
the ABL Collateral Agent in connection with any ABL Document;




     Second, to the ABL Administrative Agent for application to the payment of all
outstanding ABL Obligations that are then due and payable in such order as may be provided
in the ABL Documents in an amount sufficient to pay in full in cash all outstanding ABL
Obligations that are then due and payable (including all interest accrued thereon after the
commencement of any Insolvency or Liquidation Proceeding at the rate, and including any
applicable post-default rate, specified in the ABL Documents, even if such interest is not
enforceable, allowable or allowed as a claim in such proceeding and including the discharge
or cash collateralization (at 110% of the aggregate undrawn amount) of all outstanding
letters of credit and bank guaranties, if any, constituting ABL Obligations);




     Third, to the payment of all amounts payable under the Term Documents on account of the
Term Collateral Agent’s fees and any reasonable legal fees, costs and ex-




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penses or other liabilities of any kind incurred by the Term Collateral Agent or any
co-trustee or agent of the Term Collateral Agent in connection with any Term Document;




     Fourth, to the Term Administrative Agent for application to the payment of all
outstanding Term Obligations (including, without limitation, Bermuda Guaranteed Obligations)
that are then due and payable in such order as may be provided in the Term Documents in an
amount sufficient to pay in full in cash all outstanding Term Obligations that are then due
and payable (including all interest accrued thereon after the commencement of any Insolvency
or Liquidation Proceeding at the rate, and including any applicable post-default rate,
specified in the Term Documents, even if such interest is not enforceable, allowable or
allowed as a claim in such proceeding and including the discharge or cash collateralization
(at 110% of the aggregate undrawn amount (as determined by the Term Administrative Agent))
of all outstanding letters of credit and bank guaranties, if any, constituting Term
Obligations);




     Fifth, to the payment of all amounts payable under the Notes Documents on account of
the Notes Collateral Agent’s fees and any reasonable legal fees, costs and expenses or other
liabilities of any kind incurred by the Notes Collateral Agent or any co-trustee or agent of
the Notes Collateral Agent in connection with any Notes Document;




     Sixth, to the Notes Collateral Agent for application to the payment of all outstanding
Notes Obligations that are then due and payable in such order as may be provided in the
Notes Documents in an amount sufficient to pay in full in cash all outstanding Notes
Obligations that are then due and payable (including all interest accrued thereon after the
commencement of any Insolvency or Liquidation Proceeding at the rate, including any
applicable post-default rate, specified in the Notes Documents, even if such interest is not
enforceable, allowable or allowed as a claim in such proceeding; and




     Seventh, any surplus remaining after the payment in full in cash of the amounts
described in the preceding clauses will be paid to the Company or the other applicable
Grantor, as the case may be, its successors or assigns, or as a court of competent
jurisdiction may direct.



          (b) In connection with the application of proceeds pursuant to Section 5.2(a), except as
otherwise directed by the Required Lenders under (and as defined in) the ABL Documents, the ABL
Collateral Agent may sell any non-cash proceeds for cash prior to the application of the proceeds
thereof.




          (c) If the ABL Collateral Agent or any ABL Secured Party collects or receives any proceeds of
such foreclosure, collection or other enforcement that should have been applied to the payment of
the Term Obligations or Notes Obligations in accordance with Section 5.1(a) above, whether after
the commencement of an Insolvency or Liquidation Proceeding or otherwise, such ABL Secured Party
will forthwith deliver the same to the Term Collateral Agent, for the account of the holders of the
Term Obligations, or to the Notes Collateral Agent, for the account of the holders of Notes
Obligations, as applicable, to be applied in accordance with Section 5.1(a). Until so delivered,
such proceeds will be held by that ABL Secured Party for the benefit of the holders of the Term
Obligations and Notes Obligations.







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Section 6. Miscellaneous.




          6.1. Conflicts. In the event of any conflict between the provisions of this Agreement
and the provisions of the Term Documents, the ABL Documents or the Notes Documents, the provisions
of this Agreement shall govern and control. Each Secured Party acknowledges and agrees that the
terms and provisions of this Agreement do not violate any term or provisions of its respective Term
Document, ABL Document or Notes Document.


          6.2. Effectiveness; Continuing Nature of This Agreement; Severability.




          (a) This Agreement shall become effective when executed and delivered by the parties hereto.
The terms of this Agreement shall survive, and shall continue in full force and effect, in any
Insolvency or Liquidation Proceeding. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. All references to the Company or any other
Grantor shall include the Company or such Grantor as debtor and debtor in possession and any
receiver or trustee for the Company or any other Grantor (as the case may be) in any Insolvency or
Liquidation Proceeding.




          (b) This Agreement shall terminate and be of no further force and effect:




          (i) with respect to the ABL Collateral Agent, the ABL Secured Parties and the ABL
Obligations, upon the Discharge of ABL Obligations, subject to the rights of the ABL Secured
Parties under Section 6.17;




          (ii) with respect to the Term Collateral Agent, the Term Secured Parties and the Term
Obligations, upon the Discharge of Term Obligations, subject to the rights of the Term
Secured Parties under Section 6.17; and




          (iii) with respect to the Notes Collateral Agent, the Notes Secured Parties and the
Notes Obligations, upon a satisfaction and discharge, legal defeasance or covenant
defeasance of the Indentures and each Additional Junior Lien Agreement in accordance with
the terms thereof.




          6.3. Amendments; Waivers. No amendment, modification or waiver of any of the
provisions of this Agreement by the Term Collateral Agent, the ABL Collateral Agent or the Notes
Collateral Agent shall be deemed to be made unless the same shall be in writing signed on behalf of
each party hereto or its authorized agent and each waiver, if any, shall be a waiver only with
respect to the specific instance involved and shall in no way impair the rights of the parties
making such waiver or the obligations of the other parties to such party in any other respect or at
any other time. Notwithstanding the foregoing, the Company or any other Grantor shall not have any
right to consent to or approve any amendment, modification or waiver of any provision of this
Agreement except to the extent its rights are directly affected (which includes any amendment to
the Grantors’ ability to cause additional obligations to constitute Term Obligations, ABL
Obligations or Notes Obligations as the Company and/or any other Grantor may designate).








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          6.4. Information Concerning Financial Condition of the Company and Its Subsidiaries.
The Term Collateral Agent and the Term Secured Parties, the ABL Collateral Agent and the ABL
Secured Parties and the Notes Collateral Agent and the Notes Secured Parties, shall each be
responsible for keeping themselves informed of (a) the financial condition of the Company and its
Subsidiaries and all endorsers and/or guarantors of the Term Obligations, the ABL Obligations or
the Notes Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the
ABL Obligations, the Term Obligations or the Notes Obligations. The Term Collateral Agent and Term
Secured Parties shall have no duty to advise the ABL Collateral Agent, any ABL Secured Parties, the
Notes Collateral Agent or any Notes Secured Parties of information known to it or them regarding
such condition or any such circumstances or otherwise. The ABL Collateral Agent and ABL Secured
Parties shall have no duty to advise the Term Collateral Agent, any Term Secured Parties, the Notes
Collateral Agent or any Notes Secured Parties of information known to it or them regarding such
condition or any such circumstances or otherwise. The Notes Collateral Agent and Notes Secured
Parties shall have no duty to advise the Term Collateral Agent, any Term Secured Parties, the ABL
Collateral Agent or any ABL Secured Parties of information known to it or them regarding such
condition or any such circumstances or otherwise. In the event that any of the Term Collateral
Agent, any of the Term Secured Parties, the ABL Collateral Agent, any of the ABL Secured Parties,
the Notes Collateral Agent or any Notes Secured Parties, in its or their sole discretion,
undertakes at any time or from time to time to provide any such information to any other party
hereto, it or they shall be under no obligation (w) to make, and such informing party shall not
make, any express or implied representation or warranty, including with respect to the accuracy,
completeness, truthfulness or validity of any such information so provided, (x) to provide any
additional information or to provide any such information on any subsequent occasion, (y) to
undertake any investigation or (z) to disclose any information which, pursuant to accepted or
reasonable commercial finance practices, such party wishes to maintain confidential or is otherwise
required to maintain confidential.




          6.5. Submission to Jurisdiction; Waivers.




          (a) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF
NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY, FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, IRREVOCABLY (a) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS; (b) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (c) AGREES
THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN
ACCORDANCE WITH SECTION 6.6; AND (d) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (c) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE PARTY IN ANY SUCH PROCEEDING IN ANY
SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT.







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          (b) EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER. THE SCOPE OF THIS WAIVER IS INTENDED
TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO
THE SUBJECT MATTER HEREOF, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A
MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS
WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS
RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED
THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY
REFERRING TO THIS SECTION 6.5(b) AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.




          6.6. Notices. All notices to the ABL Secured Parties, the Term Secured Parties and
the Notes Secured Parties permitted or required under this Agreement shall also be sent to the ABL
Collateral Agent, the Term Collateral Agent and the Notes Collateral Agent, respectively. Unless
otherwise specifically provided herein, any notice hereunder shall be in writing and may be
personally served, telexed or sent by telefacsimile or United States mail or courier service and
shall be deemed to have been given when delivered in person or by courier service and signed for
against receipt thereof, upon receipt of telefacsimile or telex, or three Business Days after
depositing it in the United States mail with postage prepaid and properly addressed. For the
purposes hereof, the addresses of the parties hereto shall be as set forth below each party’s name
on the signature pages hereto, or, as to each party, at such other address as may be designated by
such party in a written notice to all of the other parties.




          6.7. Further Assurances. The Term Collateral Agent, on behalf of itself and the Term
Secured Parties, the ABL Collateral Agent, on behalf of itself and the ABL Secured Parties, the
Notes Collateral Agent, on behalf of itself and the Notes Secured Parties, and each Grantor, agrees
that each of them shall take such further action and shall execute (without recourse or warranty)
and deliver such additional documents and instruments (in recordable form, if requested) as the
Term Collateral Agent, the ABL Collateral Agent or the Notes Collateral Agent may reasonably
request to effectuate the terms of and the lien priorities contemplated by this Agreement. The
parties hereto agree, subject to the other provisions of this Agreement:





     (a) upon request by the Term Collateral Agent, the ABL Collateral Agent or the Notes
Collateral Agent, to cooperate in good faith (and to direct their counsel to cooperate in
good faith) from time to time in order to determine the specific items included in the TL
Priority Collateral and the ABL Priority Collateral and the steps taken to per-



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fect their respective Liens thereon and the identity of the respective parties
obligated under the Term Documents, the ABL Documents and the Notes Documents; and




     (b) that the Term Security Documents, the ABL Security Documents and the Notes Security
Documents creating Liens on the TL Priority Collateral and the ABL Priority Collateral shall
be in all material respects the same forms of documents other than with respect to the First
Priority, the Second Priority and Third Priority nature of the Liens created thereunder in
such Collateral.



          6.8. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAW PROVISIONS (OTHER THAN SECTION 5-1401
AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATION LAWS).




          6.9. Binding on Successors and Assigns. This Agreement shall be binding upon the
parties hereto, the Term Secured Parties, the ABL Secured Parties, the Notes Secured Parties and
their respective successors and assigns.




          6.10. Specific Performance. Each of the Term Collateral Agent, the ABL Collateral
Agent and the Notes Collateral Agent may demand specific performance of this Agreement. The Term
Collateral Agent, on behalf of itself and the Term Secured Parties, the ABL Collateral Agent, on
behalf of itself and the ABL Secured Parties, and the Notes Collateral Agent, on behalf of itself
and the Notes Secured Parties, hereby irrevocably waives any defense based on the adequacy of a
remedy at law and any other defense which might be asserted to bar the remedy of specific
performance in any action which may be brought by the Term Collateral Agent, the ABL Collateral
Agent or the Notes Collateral Agent, as the case may be.




          6.11. Headings. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement for any other
purpose or be given any substantive effect.




          6.12. Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto in different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. Delivery of an executed counterpart
of a signature page of this Agreement or any document or instrument delivered in connection
herewith by telecopy shall be effective as delivery of a manually executed counterpart of this
Agreement or such other document or instrument, as applicable.




          6.13. Authorization; No Conflict. Each of the parties represents and warrants to all
other parties hereto that the execution, delivery and performance by or on behalf of such party to
this Agreement has been duly authorized by all necessary action, corporate or otherwise, does not
violate any provision of law, governmental regulation, or any agreement or instrument by which such
party is bound, and requires no governmental or other consent that has not been obtained and is not
in full force and effect.








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          6.14. No Third Party Beneficiaries. This Agreement and the rights and benefits hereof
shall inure to the benefit of the Term Secured Parties, the ABL Secured Parties, the Notes Secured
Parties and each of their respective successors and assigns. No other Person shall have or be
entitled to assert rights or benefits hereunder.




          6.15. Provisions Solely to Define Relative Rights.




          (a) The provisions of this Agreement are and are intended solely for the purpose of defining
the relative rights of the Term Secured Parties, the ABL Secured Parties and the Notes Secured
Parties. None of the Company, any other Grantor or any other creditor thereof shall have any
rights hereunder. Nothing in this Agreement is intended to or shall impair the obligations of the
Company or any other Grantor, which are absolute and unconditional, to pay the Term Obligations,
the ABL Obligations and the Notes Obligations as and when the same shall become due and payable in
accordance with their terms.




          (b) Nothing in this Agreement shall relieve the Company or any Grantor from the performance of
any term, covenant, condition or agreement on the Company’s or such Grantor’s part to be performed
or observed under or in respect of any of the Collateral pledged by it or from any liability to any
Person under or in respect of any of such Collateral or impose any obligation on any Collateral
Agent to perform or observe any such term, covenant, condition or agreement on the Company’s or
such Grantor’s part to be so performed or observed or impose any liability on any Collateral Agent
for any act or omission on the part of the Company’s or such any Grantor relative thereto or for
any breach of any representation or warranty on the part of the Company or such Grantor contained
in this Agreement or any ABL Document or any Term Document or any Notes Document, or in respect of
the Collateral pledged by it. The obligations of the Company and each Grantor contained in this
paragraph shall survive the termination of this Agreement and the discharge of the Company’s or
such Grantor’s other obligations hereunder.




          (c) Each of the Collateral Agents and the Administrative Agents acknowledge and agree that
neither has made any representation or warranty with respect to the execution, validity, legality,
completeness, collectability or enforceability of any other ABL Document, any Term Document or any
Notes Document. Except as otherwise provided in this Agreement, each of the Collateral Agents and
the Administrative Agents will be entitled to manage and supervise their respective extensions of
credit to the Company or any of its Subsidiaries in accordance with law and their usual practices,
modified from time to time as they deem appropriate.




          6.16. Additional Grantors. The Company will cause each Person that becomes a Grantor
or is a Domestic Subsidiary required by any Term Document, ABL Document or Notes Document to become
a party to this Agreement to become a party to this Agreement, for all purposes of this Agreement,
by causing such Person to execute and deliver to the parties hereto an Intercreditor Agreement
Joinder, whereupon such Person will be bound by the terms hereof to the same extent as if it had
executed and delivered this Agreement as of the date hereof. The Company shall promptly provide
each Collateral Agent and the Notes Collateral Agent with a copy of each Intercreditor Agreement
Joinder executed and delivered pursuant to this Section 6.16.








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          6.17. Avoidance Issues. If any ABL Secured Party, Term Secured Party or Notes Secured
Party is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or
otherwise pay to the estate of the Company or any other Grantor any amount (a “Recovery”),
then such ABL Secured Party, Term Secured Party or Notes Secured Party, as applicable, shall be
entitled to a reinstatement of ABL Obligations, Term Obligations or Notes Obligations, as
applicable, with respect to all such recovered amounts. If this Agreement shall have been
terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and
such prior termination shall not diminish, release, discharge, impair or otherwise affect the
obligations of the parties hereto from such date of reinstatement.




          6.18. Intercreditor Agreement. This Agreement is the Intercreditor Agreement referred
to in the ABL Credit Agreement, the Term Credit Agreement and the Indentures. Nothing in this
Agreement shall be deemed to subordinate the right of any ABL Secured Party to receive payment to
the right of any Term Secured Party to receive payment or of any Term Secured Party to receive
payment to the right of any ABL Secured Party to receive payment or the right of any Notes Secured
Party to receive payment to the right of any Term Secured Party or ABL Secured Party to receive
payment (whether before or after the occurrence of an Insolvency or Liquidation Proceeding), it
being the intent of the parties that this Agreement shall effectuate a subordination of Liens but
not a subordination of Indebtedness.




          6.19. Foreign Collateral. For avoidance of doubt, it is understood and agreed that the
Bermuda Term Borrower and various Foreign Subsidiaries of the Company and/or the Bermuda Term
Borrower have granted security interests in certain of their property, securing their Term
Obligations, and that as of the date of this Agreement, no such security interests have been
provided by the Bermuda Term Borrower or any other Foreign Subsidiary to secure any ABL Obligations
or Notes Obligations. It is understood and agreed by all parties hereto that this Agreement does
not apply to any security interests granted by the Bermuda Term Borrower or any other Foreign
Subsidiary, and that any assets or property pledged by the Bermuda Term Borrower or any other
Foreign Subsidiary to secure (or which are subject to a Lien to secure) any Term Obligations or ABL
Obligations or Notes Obligations shall not be subject to the terms or provisions of this Agreement.
Neither the Bermuda Term Borrower nor any Foreign Subsidiary shall constitute a Grantor hereunder
or be bound by the provisions hereof.




          6.20. Cash Collateral (Term Credit Agreement). The parties hereto acknowledge and
agree that, all cash and Cash Equivalents (as defined in the Term Credit Agreement as in effect on
the date hereof, after giving effect to the Restatement Effective Date as defined therein) actually
delivered to the Term Administrative Agent or Term Collateral Agent pursuant to Sections 2B.07
and/or 4.02(a) of the Term Credit Agreement, but in each case only to the extent of the aggregate
stated amounts and/or face amounts of letters of credit and bank guaranties (calculated in
accordance with the Term Credit Agreement) exceed the sum of (x) the relevant commitments
thereunder plus (y) any required cushion or over-collateralization thereof, then such cash and Cash
Equivalents may be held as collateral as provided in the Term Credit Agreement and shall constitute
TL Priority Collateral rather than ABL Priority Collateral.




          6.21. Credit-Linked Deposits. The parties hereto acknowledge and agree that,
notwithstanding anything to the contrary contained herein, the Credit-Linked Deposits (as defined
in the Term Credit Agreement) shall remain property of the respective Term Lenders as






-89-









 







provided in the Term Credit Agreement and shall not constitute Collateral hereunder;
provided, that, without limiting the foregoing, if, notwithstanding the foregoing, such
Credit Linked Deposits (or any portion thereof) are deemed to be Collateral (whether as a matter of
applicable law or otherwise) then such Credit-Linked Deposits or the applicable portion thereof, as
the case may be, shall be deemed to constitute TL Priority Collateral, rather than ABL Priority
Collateral, for all purposes hereunder.




* * *




-90-









 





          IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor Agreement to be executed
by their respective officers or representatives as of the day and year first above written.




	 	 	 
	Each assignor’s address is as listed
on Annex A attached hereto

	 	DOLE FOOD COMPANY, INC.
	 

	 	CALAZO CORPORATION
	 

	 	AG 1970, INC.
	 

	 	AG 1971, INC.
	 

	 	AG 1972, INC.
	 

	 	ALYSSUM CORPORATION
	 

	 	BARCLAY HOLLANDER CORPORATION
	 

	 	BUD ANTLE, INC.
	 

	 	CALICAHOMES, INC.
	 

	 	CALIFORNIA POLARIS, INC.
	 

	 	CB NORTH, LLC
	 

	 	CB SOUTH, LLC
	 

	 	DOLE ABPIK, INC.
	 

	 	DOLE ARIZONA DRIED FRUIT AND NUT COMPANY
	 

	 	DOLE CARROT COMPANY
	 

	 	DOLE CITRUS
	 

	 	DOLE DF&N, INC.
	 

	 	DOLE DRIED FRUIT AND NUT COMPANY, A
	 

	 	CALIFORNIA GENERAL PARTNERSHIP
	 

	 	DOLE FARMING, INC.
	 

	 	DOLE FRESH VEGETABLES, INC.
	 

	 	DOLE ORLAND, INC.
	 

	 	DOLE PACKAGED FOODS, LLC
	 

	 	E.T. WALL COMPANY
	 

	 	EARLIBEST ORANGE ASSOCIATION, INC.
	 

	 	FALLBROOKE CITRUS COMPANY, INC.
	 

	 	LINDERO HEADQUARTERS COMPANY, INC.
	 

	 	LINDERO PROPERTY, INC.
	 

	 	MILAGRO RANCH, LLC
	 

	 	OCEANVIEW PRODUCE COMPANY
	 

	 	PRAIRIE VISTA, INC.
	 

	 	RANCHO MANANA, LLC
	 

	 	ROYAL PACKING CO.
	 

	 	VELTMAN TERMINAL CO.
	 

	 	BANANERA ANTILLANA (COLOMBIA), INC.






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 
	 

	 	CLOVIS CITRUS ASSOCIATION
	 

	 	DELPHINIUM CORPORATION
	 

	 	DOLE BERRY COMPANY, LLC
	 

	 	DOLE EUROPE COMPANY
	 

	 	DOLE FOODS FLIGHT OPERATIONS, INC.
	 

	 	DOLE NORTHWEST, INC.
	 

	 	DOLE SUNFRESH EXPRESS, INC.
	 

	 	STANDARD FRUIT AND STEAMSHIP COMPANY
	 

	 	STANDARD FRUIT COMPANY
	 

	 	SUN COUNTRY PRODUCE, INC.
	 

	 	WEST FOODS, INC.
	 

	 	COOL ADVANTAGE, INC.
	 

	 	COOL CARE, INC.
	 

	 	SAW GRASS TRANSPORT, INC.
	 

	 	BLUE ANTHURUIM, INC.
	 

	 	CERULEAN, INC.
	 

	 	DOLE DIVERSIFIED, INC.
	 

	 	DOLE LAND COMPANY, INC.
	 

	 	DOLE PACKAGED FOODS CORPORATION
	 

	 	LA PETITE D’AGEN, INC.
	 

	 	M K DEVELOPMENT, INC.
	 

	 	MALAGA COMPANY, INC.
	 

	 	MUSCAT, INC.
	 

	 	OAHU TRANSPORT COMPANY, LIMITED
	 

	 	WAHIAWA WATER COMPANY, INC.
	 

	 	ZANTE CURRANT, INC.
	 

	 	DIVERSIFIED IMPORTS CO.
	 

	 	DOLE ASSETS, INC.
	 

	 	DOLE FRESH FRUIT COMPANY
	 

	 	DOLE HOLDINGS, INC.
	 

	 	DOLE LOGISTICS SERVICES, INC.
	 

	 	DOLE OCEAN CARGO EXPRESS, INC.
	 

	 	DOLE OCEAN LINER EXPRESS, INC.
	 

	 	RENAISSANCE CAPITAL CORPORATION
	 

	 	SUN GIANT, INC.
	 

	 	DNW SERVICES COMPANY
	 

	 	PACIFIC COAST TRUCK COMPANY
	 

	 	PAN-ALASKA FISHERIES, INC.






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



-2-









 






	 	 	 	 	 



	 	 	 
	Address:
	 	DEUTSCHE BANK AG NEW YORK BRANCH,
	 
	 	as Term Collateral Agent
	60 Wall Street
	 	 
	New York, NY 10005
	 	 
	Attention: Scottye Lindsey
	 	 
	Telecopier: (646) 736-7095
	 	 






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



-3-









 






	 	 	 	 	 



	 	 	 
	Address:
	 	DEUTSCHE BANK AG NEW YORK BRANCH,
	 
	 	as ABL Collateral Agent
	60 Wall Street
	 	 
	New York, NY 10005
	 	 
	Attention: Scottye Lindsey
	 	 
	Telecopier: (646) 736-7095
	 	 






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



-4-









 






	 	 	 	 	 



	 	 	 
	Address:

	 	U.S. BANK NATIONAL ASSOCIATION,
	 

	 	as Notes Collateral Agent
	EP-MN-WS3C
	 	 
	60 Livingston Avenue
	 	 
	St. Paul, MN 55107
	 	 
	Attention: Corporate Trust Services
	 	 
	Telecopier: (651) 495-8097
	 	 






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



-5-









 





FORM OF

INTERCREDITOR AGREEMENT JOINDER





          The undersigned, ___, a ___, hereby agrees to become party as [a
Grantor] [a ABL Collateral Agent] [a Term Collateral Agent] [a Notes Collateral Agent] under the
Second Amended and Restated Intercreditor Agreement dated as of March [  ], 2010 (the
“Intercreditor Agreement”) among DOLE FOOD COMPANY, INC., a Delaware corporation (the
“Company”), the other GRANTORS from time to time party thereto, DEUTSCHE BANK AG NEW YORK
BRANCH (“DBAG”), as ABL Collateral Agent, DBAG, as Term Collateral Agent, and U.S. BANK
NATIONAL ASSOCIATION, as Notes Collateral Agent as amended, supplemented, amended and restated or
otherwise modified and in effect from time to time, for all purposes thereof on the terms set forth
therein, and to be bound by the terms of the Intercreditor Agreement as fully as if the undersigned
had executed and delivered the Intercreditor Agreement as of the date thereof.



          The provisions of Article 6 of the Intercreditor Agreement will apply with like effect to this
Intercreditor Agreement Joinder.




          IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor Agreement Joinder to be
executed by their respective officers or representatives as of ___, 20___.




[________________________]




	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 











 





ANNEX A




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Type of Organization	 	 	 	 	 	 	 	 	 	 
	 	 	(or, if the Assignor is	 	Registered Or	 	 	 	Assignor’s Location	 	Assignor’s Organization	 	Transmitting
	Exact Legal Name of	 	an Individual, so	 	ganization?	 	Jurisdiction of	 	(for purposes of NY	 	Identification Number (or,	 	Utility?
	Assignor	 	indicate)	 	(Yes/No)	 	Organization	 	UCC § 9-307)	 	if it has none, so indicate)	 	(Yes/No)
	Calazo Corporation

	 	Corporation
	 	Y
	 	Arizona
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	02020698	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	AG 1970, Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C1597059	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	AG 1971, Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C1597063	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	AG 1972, Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C1597062	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Alyssum Corporation

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C1815356	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Barclay Hollander Corporation

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C0564697	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bud Antle, Inc.

	 	Corporation
	 	Y
	 	California
	 	639 S. Sanborn Road


Salinas, CA 93902
	 	 	C0777840	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Calicahomes, Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C0474028	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	California Polaris, Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C0915447	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	CB North, LLC

	 	LLC
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	200226310119	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	CB South, LLC

	 	LLC
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	200226310118	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole ABPIK, Inc.

	 	Corporation
	 	Y
	 	California
	 	7170 N. Financial Drive
Fresno, CA 93710
	 	 	C1629807	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Arizona Dried Fruit and
Nut Company

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C1822834	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Carrot Company

	 	Corporation
	 	Y
	 	California
	 	639 S. Sanborn Road


Salinas, CA 93902
	 	 	C1179103	 	 	N






 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Type of Organization	 	 	 	 	 	 	 	 	 	 
	 	 	(or, if the Assignor is	 	Registered Or	 	 	 	Assignor’s Location	 	Assignor’s Organization	 	Transmitting
	Exact Legal Name of	 	an Individual, so	 	ganization?	 	Jurisdiction of	 	(for purposes of NY	 	Identification Number (or,	 	Utility?
	Assignor	 	indicate)	 	(Yes/No)	 	Organization	 	UCC § 9-307)	 	if it has none, so indicate)	 	(Yes/No)
	Dole Citrus

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C0940152	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole DF&N, Inc.

	 	Corporation
	 	Y
	 	California
	 	3366 Muscat Avenue

Fresno, CA 93725
	 	 	C1629808	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Dried Fruit and Nut
Company, a California General
Partnership

	 	General Partnership
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	 	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Farming, Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C0454623	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Fresh Vegetables, Inc.

	 	Corporation
	 	Y
	 	California
	 	639 S. Sanborn Road


Salinas, CA 93902
	 	 	C1177297	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Orland, Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C0767252	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Packaged Foods, LLC

	 	LLC
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	200600910228	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	E. T. Wall Company

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C0759411	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Earlibest Orange Association,
Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C0460741	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fallbrook Citrus Company, Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C1237504	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Lindero Headquarters Company,
Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C2070249	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Lindero Property, Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C1698635	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Milagro Ranch, LLC

	 	LLC
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	200421910230	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Oceanview Produce Company

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C1463723	 	 	N






-2-









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Type of Organization	 	 	 	 	 	 	 	 	 	 
	 	 	(or, if the Assignor is	 	Registered Or	 	 	 	Assignor’s Location	 	Assignor’s Organization	 	Transmitting
	Exact Legal Name of	 	an Individual, so	 	ganization?	 	Jurisdiction of	 	(for purposes of NY	 	Identification Number (or,	 	Utility?
	Assignor	 	indicate)	 	(Yes/No)	 	Organization	 	UCC § 9-307)	 	if it has none, so indicate)	 	(Yes/No)
	Prairie Vista, Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C0280565	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Rancho Manana, LLC

	 	LLC
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	200422210034	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Royal Packing Co.

	 	Corporation
	 	Y
	 	California
	 	639 S. Sanborn Road


Salinas, CA 93901
	 	 	C1658935	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Veltman Terminal Co.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C0308794	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bananera Antillana
(Colombia), Inc.

	 	Corporation
	 	Y
	 	Delaware
	 	100 W. 10th Street


Wilmington, DE 19801
	 	 	845992	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Clovis Citrus Association

	 	Corporation
	 	Y
	 	Delaware
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	0805383	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Delphinium Corporation

	 	Corporation
	 	Y
	 	Delaware
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	0839429	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Berry Company, LLC

	 	LLC
	 	Y
	 	Delaware
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	2753691	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Europe Company

	 	Corporation
	 	Y
	 	Delaware
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	0486011	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Food Company, Inc.

	 	Corporation
	 	Y
	 	Delaware
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	3376670	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Foods Flight Operations,
Inc.

	 	Corporation
	 	Y
	 	Delaware
	 	3366 Muscat Avenue

Fresno, CA 93725
	 	 	2133517	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Northwest, Inc.

	 	Corporation
	 	Y
	 	Delaware
	 	80 McNeil Canyon Road

Chelan, WA 98816
	 	 	0227108	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Sunfresh Express, Inc.

	 	Corporation
	 	Y
	 	Delaware
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	2091327	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Standard Fruit and Steamship
Company

	 	Corporation
	 	Y
	 	Delaware
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	0669719	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Standard Fruit Company

	 	Corporation
	 	Y
	 	Delaware
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	0485718	 	 	N






-3-









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Type of Organization	 	 	 	 	 	 	 	 	 	 
	 	 	(or, if the Assignor is	 	Registered Or	 	 	 	Assignor’s Location	 	Assignor’s Organization	 	Transmitting
	Exact Legal Name of	 	an Individual, so	 	ganization?	 	Jurisdiction of	 	(for purposes of NY	 	Identification Number (or,	 	Utility?
	Assignor	 	indicate)	 	(Yes/No)	 	Organization	 	UCC § 9-307)	 	if it has none, so indicate)	 	(Yes/No)
	Sun Country Produce, Inc.

	 	Corporation
	 	Y
	 	Delaware
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	939918	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	West Foods, Inc.

	 	Corporation
	 	Y
	 	Delaware
	 	639 S. Sanborn Road


Salinas, CA 93901
	 	 	0789683	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cool Advantage, Inc.

	 	Corporation
	 	Y
	 	Florida
	 	One Dole Drive

Westlake Village, CA 91362
	 	P	98000104868	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cool Care, Inc.

	 	Corporation
	 	Y
	 	Florida
	 	601 NW 12th Avenue

Deerfield Beach, FL 33442
	 	 	J34542	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Saw Grass Transport, Inc.

	 	Corporation
	 	Y
	 	Florida
	 	10055 NW 12th Street

Miami, FL 33172
	 	P	99000058957	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Blue Anthurium, Inc.

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue

Wahiawa, HI 96786
	 	 	D1 87978	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cerulean, Inc.

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue

Wahiawa, HI 96786
	 	 	D1 97231	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Diversified, Inc.

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue

Wahiawa, HI 96786
	 	 	D1 78742	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Land Company, Inc.

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue

Wahiawa, HI 96786
	 	 	D1 4	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Packaged Foods 

Corporation

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue

Wahiawa, HI 96786
	 	 	D1 79181	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	La Petite d’Agen, Inc.

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue

Wahiawa, HI 96786
	 	 	D1 9421	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	M K Development, Inc.

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue

Wahiawa, HI 96786
	 	HI-70337 D1
	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Malaga Company, Inc.

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue

Wahiawa, HI 96786
	 	 	D1 79501	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Muscat, Inc.

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue

Wahiawa, HI 96786
	 	 	D1 14633	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Oahu Transport Company, 

Limited

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue

Wahiawa, HI 96786
	 	 	D1 3728	 	 	N






-4-









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Type of Organization	 	 	 	 	 	 	 	 	 	 
	 	 	(or, if the Assignor is	 	Registered Or	 	 	 	Assignor’s Location	 	Assignor’s Organization	 	Transmitting
	Exact Legal Name of	 	an Individual, so	 	ganization?	 	Jurisdiction of	 	(for purposes of NY	 	Identification Number (or,	 	Utility?
	Assignor	 	indicate)	 	(Yes/No)	 	Organization	 	UCC § 9-307)	 	if it has none, so indicate)	 	(Yes/No)
	Wahiawa Water Company, Inc.

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue

Wahiawa, HI 96786
	 	 	D1 29035	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Zante Currant, Inc.

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue

Wahiawa, HI 96786
	 	 	D1 19015	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Diversified Imports Co.

	 	Corporation
	 	Y
	 	Nevada
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C9076-1987	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Assets, Inc.

	 	Corporation
	 	Y
	 	Nevada
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C19261-1997	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Fresh Fruit Company

	 	Corporation
	 	Y
	 	Nevada
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C6123-1985	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Holdings, Inc.

	 	Corporation
	 	Y
	 	Nevada
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C7119-1983	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Logistics Services, Inc.

	 	Corporation
	 	Y
	 	Nevada
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C1173-1993	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Ocean Cargo Express, Inc.

	 	Corporation
	 	Y
	 	Nevada
	 	9485 Regency Square Blvd., Suite 425-420,
Jacksonville, FL 32225
	 	 	C17227-1999	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Ocean Liner Express, Inc.

	 	Corporation
	 	Y
	 	Nevada
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C6529-1993	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renaissance Capital 

Corporation

	 	Corporation
	 	Y
	 	Nevada
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C12741-1995	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Sun Giant, Inc.

	 	Corporation
	 	Y
	 	Nevada
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	C9306-1987	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DNW Services Company

	 	Corporation
	 	Y
	 	Washington
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	601-881-469	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pacific Coast Truck Company

	 	Corporation
	 	Y
	 	Washington
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	601-640-771	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pan-Alaska Fisheries, Inc.

	 	Corporation
	 	Y
	 	Washington
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	578-035-177	 	 	N







-5-











 





SCHEDULE I




LENDER COMMITMENTS




	 	 	 	 	 
	Lender	 	Commitment
	Deutsche Bank AG New York Branch

	 	$	33,000,000	 
	Wells Fargo Capital Finance, LLC

	 	$	33,000,000	 
	Bank of America, N.A.

	 	$	33,000,000	 
	The Bank of Nova Scotia

	 	$	21,000,000	 
	CoBank, ACB

	 	$	28,000,000	 
	PNC Bank, National Association

	 	$	15,000,000	 
	Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. “Rabobank
International” New York Branch

	 	$	21,000,000	 
	HSBC Bank USA, National Association

	 	$	21,000,000	 
	Siemens Financial Services, Inc.

	 	$	21,000,000	 
	Union Bank, N.A.

	 	$	10,000,000	 
	U.S. Bank National Association

	 	$	21,000,000	 
	Natixis

	 	$	15,000,000	 
	RZB Finance LLC

	 	$	21,000,000	 
	Capital One Leverage Finance Corp

	 	$	15,000,000	 
	JPMorgan Chase Bank, N.A.

	 	$	21,000,000	 
	SunTrust Bank

	 	$	21,000,000	 






 









 






SCHEDULE II




LENDER ADDRESSES




	 	 	 
	Lender	 	Address
	Deutsche Bank AG New York Branch

	 	60 Wall Street

New York, NY 10005

Attention: Scottye D. Lindsey

Tel.: 212-250-6115

Fax: 212-797-4655
	 
	 	 
	Wells Fargo Capital Finance, LLC

	 	2459 Colorado Ave

Suite 3000 West

Santa Monica, CA 90404

Attention: Kurt Duerfeldt

Tel: 310-453-7324
	 
	 	 
	Bank of America, N.A.

	 	One Bryant Park

New York, New York 10036

Attention: Steven Sharp

Tel: 626-584-4511
	 
	 	 
	The Bank of Nova Scotia

	 	580 California Street

Suite 2100

San Francisco, CA 91404

Attention: Maarty Van Otterloo

Tel: 415-986-1100
	 
	 	 
	CoBank, ACB

	 	5500 South Quebec Street

Greenwood, CO 80111

Attention: Hal Nelson

Tel:303-740-4312
	 
	 	 
	PNC Bank, National Association

	 	2 N Lake Ave Suite 440

Pasadena, CA 91101

Attention: Steve Roberts

Tel: 626-432-6128
	 
	 	 
	Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A.
“Rabobank International” New York
Branch

	 	245 Park Avenue

New York, NY 10167-0062

Attention: Janet Lee
	 
	 	 
	HSBC Bank USA, National Association

	 	660 South Figueroa Street

Suite 800

Los Angeles, CA 90017

Attention: Steven Brennan

Tel: 213-553-8000
	 
	 	 
	Siemens Financial Services, Inc.

	 	170 Wood Avenue South

Iselin, NJ 08830

Attention: David Kantes

Tel:732-590-6629






 









 






	 	 	 
	Lender	 	Address
	Union Bank, N.A.

	 	445 South Figueroroa Street, 10th fl

Los Angeles, CA 90017

Attention: Peter Thompson

Tel: 213-236-6911
	 
	 	 
	U.S. Bank National Association

	 	1 U.S. Bank Plaza

St. Louis, MO 63101

Attention: Jeffrey Patton

Tel: 314-418-3995
	 
	 	 
	Natixis, New York Branch

	 	9 West 57th Street, 35th Floor

New York, NY 10019

Attention: Pieter van Tulder

Tel: 212-872-5117
	 
	 	 
	RZB Finance LLC

	 	24 Grassy Plain Street

Bethel, CT 06801

Attention: John Valiska

Tel: 203-207-7722
	 
	 	 
	Capital One Leverage Finance Corp

	 	265 Broadhollow Road

Melville, NY 11747

Attention: Michael Burns

Tel: 631-531-2775
	 
	 	 
	JPMorgan Chase Bank, N.A.

	 	270 Park Avenue

New York, NY 10017

Attention: Maureen Reilly

Tel: 415-615-5635

	 
	 	 
	SunTrust Bank

	 	303 Peachtree Street NE 23rd Floor

Atlanta, GA 30080

Attention: Jamie Hurley

Tel: 404-813-6733






 









 






SCHEDULE III




ACCOUNTS



The schedule of Accounts separately furnished to the Administrative Agent is incorporated herein by
reference.







 









 








SCHEDULE IV




EXISTING INDEBTEDNESS



The schedule of Existing Indebtedness separately furnished to the Administrative Agent is
incorporated herein by reference.






 









 








SCHEDULE V




REAL PROPERTY



See attached. Not more than 90 days after the Amendment No. 3 Effective Date, or such later date
as is acceptable to the Administrative Agent, the Borrower shall provide to the Administrative
Agent revised information to be added to this Schedule V to complete such Schedule V.







 









 








SCHEDULE VI




PENSION PLANS




	 	 	 
	Plan Number	 	Plan Name
	029

	 	Consolidated Retirement Plan for Employees of Dole Food Company, Inc.
	 
	 	 
	001

	 	Western Conference of Teamsters Pension Plan*
	 
	 	 
	98

	 	Supplemental Executive Retirement Plan
	 
	 	 
	60

	 	401(k) Plan for Salaried Employees of Dole Food Company, Inc. and Participating Divisions and Subsidiaries
	 
	 	 
	68

	 	401(k) Plan for Hourly Employees of Dole Food Company, Inc. and Participating Divisions and Subsidiaries








 




			
	*	 	Multiemployer plan




 









 










	 	 	 
	SCHEDULE VII
	CAPITALIZATION





None.








 









 








SCHEDULE VIII




SUBSIDIARIES




	 	 	 	 	 	 	 
	 	 	% Effective	 	Jurisdiction of
	Company Name	 	Ownership	 	Organization
	STANDARD FRUIT, S.A. (ARGENTINA)
	 	 	100.0000	 	 	Argentina
	DOLE AUSTRALIA PTY, LTD
	 	 	100.0000	 	 	Australia
	TRANSTRADING OVERSEAS, LTD
	 	 	100.0000	 	 	Bahamas
	DOLE EXPORT COMPANY, LTD.
	 	 	100.0000	 	 	Barbados
	DOLE ANTWERP
	 	 	100.0000	 	 	Belgium
	AGOURA LIMITED
	 	 	100.0000	 	 	Bermuda
	BALTIME LIMITED.
	 	 	100.0000	 	 	Bermuda
	CAMARILLO LIMITED
	 	 	100.0000	 	 	Bermuda
	COOKSTOWN FINANCIAL, LTD
	 	 	35.0000	 	 	Bermuda
	DOLE FOREIGN HOLDINGS, LTD
	 	 	100.0000	 	 	Bermuda
	DOLE FOREIGN HOLDINGS II, LTD
	 	 	100.0000	 	 	Bermuda
	DOLE FRESH FRUIT INTERNATIONAL LIMITED
	 	 	100.0000	 	 	Bermuda
	DOLE INTERNATIONAL, LTD.
	 	 	100.0000	 	 	Bermuda
	DOLE PACKAGED FOODS ASIA
	 	 	100.0000	 	 	Bermuda
	INTERFRUIT COMPANY, LIMITED
	 	 	100.0000	 	 	Bermuda
	MAHELE, LIMITED
	 	 	100.0000	 	 	Bermuda
	DOLE FOREIGN HOLDINGS II, LTD.
	 	 	100.0000	 	 	Bermuda
	MENDOCINO LIMITED
	 	 	100.0000	 	 	Bermuda
	REEFERSHIP MARINE SERVICES, LTD
	 	 	100.0000	 	 	Bermuda
	SOLAMERICA, LTD.
	 	 	100.0000	 	 	Bermuda
	SOLVEST, LTD.
	 	 	100.0000	 	 	Bermuda
	STANDARD FRUIT CO. (BERMUDA) LTD
	 	 	100.0000	 	 	Bermuda
	VENTURA TRADING LTD.
	 	 	100.0000	 	 	Bermuda
	DOLE BRASIL, LTDA
	 	 	100.0000	 	 	Brazil
	BANAPLUS, INCORPORATED
	 	 	100.0000	 	 	British Virgin Islands
	DOLE FOODS OF CANADA, LTD
	 	 	100.0000	 	 	Canada
	AGRICOLA CALIFORNIA, LTDA.
	 	 	100.0000	 	 	Chile
	AGRICOLA PENCAHUE LTDA.
	 	 	100.0000	 	 	Chile
	AGRICOLA PUNITAQUI LTDA.
	 	 	100.0000	 	 	Chile
	AGRICOLA RAUQUEN LTDA.
	 	 	100.0000	 	 	Chile
	DOLE CHILE S.A.
	 	 	100.0000	 	 	Chile
	DOLE THOMSEN S.A.
	 	 	51.0000	 	 	Chile
	EMBALAJES STANDARD, S.A.
	 	 	100.0000	 	 	Chile






 









 






	 	 	 	 	 	 	 
	 	 	% Effective	 	Jurisdiction of
	Company Name	 	Ownership	 	Organization
	INVERSIONES DEL PACIFICO S.A.
	 	 	100.0000	 	 	Chile
	SHANGHAI DOLE FOOD CO. LTD.
	 	 	100.0000	 	 	China
	INVERSIONES DOBAN S.A.S.
	 	 	100.0000	 	 	Columbia
	AEROFUMIGACION CENTROAMERICANA, S.A.
	 	 	100.0000	 	 	Costa Rica
	AGROINDUSTRIAL PINAS DEL BOSQUE, S.A.
	 	 	100.0000	 	 	Costa Rica
	ALMACENES ATALANTA S.A.
	 	 	100.0000	 	 	Costa Rica
	ALPPHA SIDERAL, S.A.
	 	 	100.0000	 	 	Costa Rica
	BANANERA EL PORVENIR, S.A.
	 	 	100.0000	 	 	Costa Rica
	BANANERA LA PAZ, S.A.
	 	 	100.0000	 	 	Costa Rica
	CIA. BANANERA DEBA, S.A.
	 	 	100.0000	 	 	Costa Rica
	CIA. BANANERA EL ENCANTO, S.A.
	 	 	100.0000	 	 	Costa Rica
	CIA. FRUTOS DE LA TIERRA, S.A.
	 	 	100.0000	 	 	Costa Rica
	COMERCIALIZADORA E IMPORTADORA VINA DEL MAR S.A.
	 	 	100.0000	 	 	Costa Rica
	COMPANIA MUSA CERO NUEVE SOCIEDAD ANINIMA, S.A.
	 	 	100.0000	 	 	Costa Rica
	DESARROLLO BANANERO LA ESPERANZA, S.A.
	 	 	100.0000	 	 	Costa Rica
	DIVERSIFICADOS DE COSTA RICA DICORI, S.A.
	 	 	100.0000	 	 	Costa Rica
	DOLE SHARED SERVICES, LIMITED
	 	 	100.0000	 	 	Costa Rica
	ECO PINAS DEL ARENAL, S.A.
	 	 	100.0000	 	 	Costa Rica
	ESTIBADORA CARIBE, S.A.
	 	 	50.0000	 	 	Costa Rica
	ESTIBADORES DEL TROPICO, S.A.
	 	 	50.0000	 	 	Costa Rica
	ESTIBADORES GOLFITENOS
	 	 	100.0000	 	 	Costa Rica
	HACIENDA LA ROSALIA, S.A.
	 	 	100.0000	 	 	Costa Rica
	ROXANA FARMS, S.A.
	 	 	100.0000	 	 	Costa Rica
	STANDARD FRUIT DE COSTA RICA S.A.
	 	 	100.0000	 	 	Costa Rica
	DOLE EAST S.R.O.
	 	 	100.0000	 	 	Czech Republic
	ACTIVIDADES AGRICOLAS, S.A.
	 	 	100.0000	 	 	Ecuador
	AGROVERDE S.A.
	 	 	100.0000	 	 	Ecuador
	BANANAPUERTO PUERTO BANANERO S.A.
	 	 	35.0000	 	 	Ecuador
	BANCUBER, S.A.
	 	 	100.0000	 	 	Ecuador
	BRUNETTI S.A.
	 	 	100.0000	 	 	Ecuador
	CIA. NAVIERA AGMARESA, S.A.
	 	 	100.0000	 	 	Ecuador
	COMERCIAL INDUSTRIAL ECUATORIANA, S.A.
	 	 	85.5100	 	 	Ecuador
	FRIOCONT, S.A.
	 	 	100.0000	 	 	Ecuador
	FRUTBAN, S.A.
	 	 	100.0000	 	 	Ecuador
	GRANELCONT, S.A.
	 	 	100.0000	 	 	Ecuador
	GUAYAMI, S.A.
	 	 	100.0000	 	 	Ecuador






 









 






	 	 	 	 	 	 	 
	 	 	% Effective	 	Jurisdiction of
	Company Name	 	Ownership	 	Organization
	INDUSTRIAL Y COMERCIAL TRILEX, S.A.
	 	 	40.0000	 	 	Ecuador
	MEGABANANA, S.A.
	 	 	100.0000	 	 	Ecuador
	NAPORTEC, S.A.
	 	 	100.0000	 	 	Ecuador
	PESCASEROLI S.A.
	 	 	100.0000	 	 	Ecuador
	PRODUCTORA CARTONERA, S.A.
	 	 	99.9700	 	 	Ecuador
	PRODUCTOS DEL LITORAL, S.A.
	 	 	100.0000	 	 	Ecuador
	PROPOLISA, S.A.
	 	 	99.9700	 	 	Ecuador
	REDAMAWAL, S.A.
	 	 	100.0000	 	 	Ecuador
	SIEMBRANUEVA, S.A.
	 	 	100.0000	 	 	Ecuador
	SOCIEDAD AGROPECUARIA PIMOCHA C.A.
	 	 	100.0000	 	 	Ecuador
	TALLERES Y LLANTAS, S.A.
	 	 	100.0000	 	 	Ecuador
	TECNICOS Y ELECTRICISTAS, S.A.
	 	 	100.0000	 	 	Ecuador
	TRANSPORTES POR MAR, S.A.
	 	 	100.0000	 	 	Ecuador
	UNION DE BANANEROS ECUATORIANOS, S.A.
	 	 	100.0000	 	 	Ecuador
	ZANPOTI, S.A.
	 	 	100.0000	 	 	Ecuador
	ENERO S.A.
	 	 	80.3726	 	 	El Salvador
	COMPAGNIE FINANCIERE DE PARTICIPATION
	 	 	40.0000	 	 	France
	COMPAGNIE FRUITIERE IMPORT S.A.
	 	 	100.0000	 	 	France
	DOLE EUROPE S.A.S
	 	 	100.0000	 	 	France
	DOLE FRANCE, S.A. (FKA DOLE MARSEILLE)
	 	 	100.0000	 	 	France
	DOLE FRESH FRUIT SOUTH SAS
	 	 	100.0000	 	 	France
	DOLE PACKAGED FOODS EUROPE (fka DOLE FRANCE SERVICES,
S.A.)
	 	 	100.0000	 	 	France
	SOLEIL HOLDING FRANCE S.A.
	 	 	100.0000	 	 	France
	DOLE DEUTSCHLAND BETEILIGUNGSGESELLSCHAFT MBH
	 	 	100.0000	 	 	Germany
	DOLE GERMANY OHG
	 	PARTNERSHIP	 	Germany
	DOLE SHARED SERVICES DEUTSCHLAND GMBH
	 	 	100.0000	 	 	Germany
	EUFRUCHT FRUCHTIMPORT GMBH
	 	 	33.0000	 	 	Germany
	FRUCHTHOF ROSTOCK GmbH
	 	 	36.0000	 	 	Germany
	FRUCHTVERTRIEB SCHWERIN GmbH
	 	 	44.0000	 	 	Germany
	HAFRU HANDELSGESELLCHAFT FRUCHTRING mbH & CO. KG
	 	 	30.0000	 	 	Germany
	PAUL KEMPOWSKI GmbH & Co. KG (Limited Partnership)
	 	 	100.0000	 	 	Germany
	DOLE FRESH FRUIT HELLAS
	 	 	100.0000	 	 	Greece
	ENERGUA S.A. MATRIZ GUATEMALA
	 	 	100.0000	 	 	Guatemala
	AGRICOLA SANTA INES, S.A.
	 	 	100.0000	 	 	Honduras
	AGROINDUSTRIA DEL CARIBE, S.A.
	 	 	100.0000	 	 	Honduras






 









 






	 	 	 	 	 	 	 
	 	 	% Effective	 	Jurisdiction of
	Company Name	 	Ownership	 	Organization
	AGROINDUSTRIAL ALMA VERDE, S.A.
	 	 	100.0000	 	 	Honduras
	BANANERA RIO MAME, SA
	 	 	100.0000	 	 	Honduras
	BIENES Y SERVICIOS S de R L de CV
	 	 	97.1000	 	 	Honduras
	BIENES Y VALORES, S.A.
	 	 	97.1000	 	 	Honduras
	CIA. AGRICOLA EL PROGRESO, S.A.
	 	 	100.0000	 	 	Honduras
	CIA. AGRICOLA MAZAPAN, S.A.
	 	 	100.0000	 	 	Honduras
	CIA. AGROPECUARIA EL PORVENIR, S.A.
	 	 	100.0000	 	 	Honduras
	CLINICAS MEDICAS DEL AGUAN, S.A.
	 	 	99.8731	 	 	Honduras
	DISTRIBUIDORA DE PRODUCTOS DIVERSOS, S.A.
	 	 	100.0000	 	 	Honduras
	ENERGUA S.A. SUCURSALl HONDURAS
	 	 	100.0000	 	 	Honduras
	EQUIPO PESADO S.A.
	 	 	99.8246	 	 	Honduras
	HOSPITAL COYOLES, S.A.
	 	 	99.8731	 	 	Honduras
	CIA.INVERSIONES MEDICAS NACIONALE SA
	 	 	99.8731	 	 	Honduras
	INVERSIONES Y VALORES DE MONTECRISTO,SA
	 	 	100.0000	 	 	Honduras
	LABORATORIOS Y SERVICIOS DE MERISTEMOS, S.A.
	 	 	100.0000	 	 	Honduras
	MANUFACTURAS DE CARTON, S.A.
	 	 	97.5715	 	 	Honduras
	MULTISERVICIOS, S.A.
	 	 	99.8264	 	 	Honduras
	PINA ANTILLANA, S.A.
	 	 	100.0000	 	 	Honduras
	PLASTICOS, S.A.
	 	 	99.7572	 	 	Honduras
	PRODUCTORA AGRICOLA DE ATLANTIDA, S.A.
	 	 	100.0000	 	 	Honduras
	SERVICIOS E INVESTIGACIONES AEREAS, SA
	 	 	100.0000	 	 	Honduras
	SOGAS, S.A.
	 	 	100.0000	 	 	Honduras
	STANDARD FRUIT DE HONDURAS
	 	 	100.0000	 	 	Honduras
	VIGILANCIA Y SEGURIDAD, S.A.
	 	 	100.0000	 	 	Honduras
	CASTLE & COOKE WORLDWIDE, LTD
	 	 	100.0000	 	 	Hong Kong
	DOLE CHINA LIMITED
	 	 	100.0000	 	 	Hong Kong
	DOLE HONG KONG LTD.
	 	 	100.0000	 	 	Hong Kong
	DOLE ITIALIA S.P.A.
	 	 	100.0000	 	 	Italy
	DOLE TERM S.R.L.
	 	 	51.0000	 	 	Italy
	LA FIORITA
	 	 	91.0000	 	 	Italy
	TROPICAL SHIPPING, ITALIANA, S.P.A.
	 	 	100.0000	 	 	Italy
	DOLE JAPAN, LTD.
	 	 	100.0000	 	 	Japan
	FRESH SYSTEMS, LTD.
	 	 	40.0000	 	 	Japan
	K. I. FRESH ACCESS, LTD
	 	 	20.0000	 	 	Japan
	DFC FOODS, INC.
	 	 	100.0000	 	 	Korea
	DLC INC
	 	 	100.0000	 	 	Korea
	DOLE KOREA, LTD (fka: TSC KOREA, LTD.)
	 	 	100.0000	 	 	Korea






 









 






	 	 	 	 	 	 	 
	 	 	% Effective	 	Jurisdiction of
	Company Name	 	Ownership	 	Organization
	DOLE LUXEMBOURG S.A.R.L.
	 	 	100.0000	 	 	Luxembourg
	DOLE LUXEMBOURG II S.A.R.L.
	 	 	100.0000	 	 	Luxembourg
	DOLE MACAU LIMITED
	 	 	100.0000	 	 	Macau
	DOLE FOOD MALAYSIA
	 	 	100.0000	 	 	Malaysia
	TROPICAL NAVIGATION (MALTA) LIMITED
	 	 	100.0000	 	 	Malta
	DOLE SHANGHAI CO. LTD. (aka SHANGHAI DOLE FOOD CO,
LTD.)
	 	 	100.0000	 	 	Mauritius
	QINGDAO DOLE FOOD CO., LTD.
	 	 	100.0000	 	 	Mauritius
	FLORES LUCITANIA S. DE R.L.
	 	 	100.0000	 	 	Mexico
	DOLE MEXICO (fka: MEXICOTEC)
	 	 	100.0000	 	 	Mexico
	DOLE EUROPE B.V.
	 	 	100.0000	 	 	Netherlands
	DOLE NEW ZEALAND LTD.
	 	 	100.0000	 	 	New Zealand
	NZ RIPENERS LIMITED
	 	 	24.9000	 	 	New Zealand
	STANDARD FRUIT DE NICARAGUA S.A.
	 	 	100.0000	 	 	Nicaragua
	BENVUE INTERNATIONAL, INC.
	 	 	100.0000	 	 	Panama
	DOLE AVIATION
	 	 	100.0000	 	 	Panama
	DOLE FRESH FRUIT INTERNATIONAL, INC.
	 	 	100.0000	 	 	Panama
	OPERACIONES TROPICALES, S.A.
	 	 	100.0000	 	 	Panama
	STANDARD FRUIT DE PANAMA, S.A.
	 	 	100.0000	 	 	Panama
	COPDEBAN S.A.C.
	 	 	100.0000	 	 	Peru
	DA SYSTEM SOLUTIONS INC (fka DAVAO TECHNO AGRO)
	 	 	32.0000	 	 	Philippines
	DIAMOND FARMS, INC.
	 	 	63.5746	 	 	Philippines
	DOLE PHILIPPINES, INC.
	 	 	99.6154	 	 	Philippines
	PACIFIC INTERNATIONAL TERMINAL SERVICES, INC.
	 	 	74.3868	 	 	Philippines
	SARANGANI RESOURCES CORPORATION
	 	 	49.4100	 	 	Philippines
	DOLE POLAND SP ZOO
	 	 	100.0000	 	 	Poland
	MIRADERO FISHING CO., INC.
	 	 	100.0000	 	 	Puerto Rico
	DOLE AFRICA (PTY)
	 	 	100.0000	 	 	South Africa
	DOLE SOUTH AFRICA PTY
	 	 	100.0000	 	 	South Africa
	FRUIT CARE SERVICES
	 	 	100.0000	 	 	South Africa
	DOLE FOOD ESPANA, S.A.
	 	 	100.0000	 	 	Spain
	AB Banan-Kompaniet
	 	 	60.0000	 	 	Sweden
	S Attehogen Ostra 3 KB
	 	 	60.0000	 	 	Sweden
	Saba Blommor AB
	 	 	60.0000	 	 	Sweden
	SABA FRESH CUTS SA fka: Färskvarucentralen i Malmö AB
	 	 	60.0000	 	 	Sweden
	Saba Frükt & Grönt AB
	 	 	60.0000	 	 	Sweden
	Saba Trading AB
	 	 	60.0000	 	 	Sweden






 









 






	 	 	 	 	 	 	 
	 	 	% Effective	 	Jurisdiction of
	Company Name	 	Ownership	 	Organization
	Saba Trading Holding AB
	 	 	100.0000	 	 	Sweden
	DOLE NORDIC AB
	 	 	60.0000	 	 	Sweden
	DOLE THAILAND, LTD
	 	 	64.3300	 	 	Thailand
	KHAO ANG KAEW CO,. LTD
	 	 	56.8351	 	 	Thailand
	T.A.I.C. LIMITED
	 	 	49.0000	 	 	Thailand
	THAI AMERICAN FOOD CO., LTD.
	 	 	99.9900	 	 	Thailand
	DOLE FRESH FRUIT MED.
	 	 	100.0000	 	 	Turkey
	AG 1970, INC.
	 	 	100.0000	 	 	U.S.
	AG 1971, INC.
	 	 	100.0000	 	 	U.S.
	AG 1972, INC.
	 	 	100.0000	 	 	U.S.
	ALYSSUM CORPORATION
	 	 	100.0000	 	 	U.S.
	APACHE GROVE LAND, 1972 LIMITED
	 	PARTNERSHIP	 	U.S.
	BANANA PRODUCTS CORP.
	 	 	15.4000	 	 	U.S.
	BANANERA ANTILLANA (COLOMBIA), INC.
	 	 	100.0000	 	 	U.S.
	BARCLAY HOLLANDER CORPORATION
	 	 	100.0000	 	 	U.S.
	BLUE ANTHURIUM, INC.
	 	 	100.0000	 	 	U.S.
	BUD ANTLE, INC.
	 	 	100.0000	 	 	U.S.
	CALAZO CORPORATION
	 	 	100.0000	 	 	U.S.
	CALICAHOMES, INC.
	 	 	100.0000	 	 	U.S.
	CALIFORNIA POLARIS, INC.
	 	 	100.0000	 	 	U.S.
	CB NORTH, LLC
	 	 	100.0000	 	 	U.S.
	CB SOUTH, LLC
	 	 	100.0000	 	 	U.S.
	CERULEAN, INC.
	 	 	100.0000	 	 	U.S.
	CLOVIS CITRUS ASSOCIATION
	 	 	100.0000	 	 	U.S.
	COOL ADVANTAGE, INC.
	 	 	100.0000	 	 	U.S.
	COOL CARE, INC.
	 	 	100.0000	 	 	U.S.
	COUNTY LINE MUTUAL WATER COMPANY
	 	 	100.0000	 	 	U.S.
	DELPHINIUM CORPORATION
	 	 	100.0000	 	 	U.S.
	DIVERSIFIED IMPORTS CO.
	 	 	100.0000	 	 	U.S.
	DNW SERVICES COMPANY
	 	 	100.0000	 	 	U.S.
	DOLE ABPIK, INC.
	 	 	100.0000	 	 	U.S.
	DOLE ARIZONA DRIED FRUIT & NUT COMPANY
	 	 	100.0000	 	 	U.S.
	DOLE ASSETS, INC.
	 	 	100.0000	 	 	U.S.
	DOLE BERRY COMPANY, LLC
	 	 	100.0000	 	 	U.S.
	DOLE CARROT COMPANY
	 	 	100.0000	 	 	U.S.
	DOLE CITRUS
	 	 	100.0000	 	 	U.S.
	DOLE DF&N, INC.
	 	 	100.0000	 	 	U.S.






 









 






	 	 	 	 	 	 	 
	 	 	% Effective	 	Jurisdiction of
	Company Name	 	Ownership	 	Organization
	DOLE DIVERSIFIED, INC.
	 	 	100.0000	 	 	U.S.
	DOLE DRIED FRUIT AND NUT COMPANY, A CALIFORNIA
GENERAL PARTNERSHIP
	 	 	100.0000	 	 	U.S.
	DOLE EUROPE COMPANY
	 	 	100.0000	 	 	U.S.
	DOLE FARMING INC.
	 	 	100.0000	 	 	U.S.
	DOLE FOODS FLIGHT OPERATIONS, INC.
	 	 	100.0000	 	 	U.S.
	DOLE FRESH FRUIT COMPANY
	 	 	100.0000	 	 	U.S.
	DOLE FRESH VEGETABLES, INC.
	 	 	100.0000	 	 	U.S.
	DOLE HOLDINGS, INC.
	 	 	100.0000	 	 	U.S.
	DOLE LAND COMPANY, INC.
	 	 	100.0000	 	 	U.S.
	DOLE LOGISTICS SERVICES, INC.
	 	 	100.0000	 	 	U.S.
	DOLE NORTHWEST, INC.
	 	 	100.0000	 	 	U.S.
	DOLE OCEAN CARGO EXPRESS, INC.
	 	 	100.0000	 	 	U.S.
	DOLE OCEAN LINER EXPRESS, INC.
	 	 	100.0000	 	 	U.S.
	DOLE ORLAND, INC.
	 	 	100.0000	 	 	U.S.
	DOLE PACKAGED FOODS CORPORATION
	 	 	100.0000	 	 	U.S.
	DOLE PACKAGED FOODS, LLC
	 	 	100.0000	 	 	U.S.
	DOLE SUNFRESH EXPRESS, INC.
	 	 	100.0000	 	 	U.S.
	E. T. WALL COMPANY
	 	 	100.0000	 	 	U.S.
	EARLIBEST ORANGE ASSOCIATION, INC.
	 	 	100.0000	 	 	U.S.
	FALLBROOK CITRUS COMPANY, INC.
	 	 	100.0000	 	 	U.S.
	LA PETITE D’AGEN, INC.
	 	 	100.0000	 	 	U.S.
	LINDERO HEADQUARTERS COMPANY, INC.
	 	 	100.0000	 	 	U.S.
	LINDERO PROPERTY, INC.
	 	 	100.0000	 	 	U.S.
	M K DEVELOPMENT, INC.
	 	 	100.0000	 	 	U.S.
	MALAGA COMPANY, INC.
	 	 	100.0000	 	 	U.S.
	MILAGRO RANCH, LLC
	 	 	100.0000	 	 	U.S.
	MUSCAT, INC.
	 	 	100.0000	 	 	U.S.
	OAHU TRANSPORT COMPANY, LIMITED
	 	 	100.0000	 	 	U.S.
	OCEANVIEW PRODUCE COMPANY
	 	 	100.0000	 	 	U.S.
	PACIFIC COAST TRUCK COMPANY
	 	 	100.0000	 	 	U.S.
	PAN-ALASKA FISHERIES, INC.
	 	 	100.0000	 	 	U.S.
	PRAIRIE VISTA, INC.
	 	 	100.0000	 	 	U.S.
	RANCHO MANANA, LLC
	 	 	100.0000	 	 	U.S.
	RENAISSANCE CAPITAL CORPORATION
	 	 	100.0000	 	 	U.S.
	ROYAL PACKING CO.
	 	 	100.0000	 	 	U.S.
	SAW GRASS TRANSPORT, INC.
	 	 	100.0000	 	 	U.S.






 









 






	 	 	 	 	 	 	 
	 	 	% Effective	 	Jurisdiction of
	Company Name	 	Ownership	 	Organization
	STANDARD FRUIT AND STEAMSHIP COMPANY
	 	 	100.0000	 	 	U.S.
	STANDARD FRUIT COMPANY
	 	 	100.0000	 	 	U.S.
	SUN COUNTRY PRODUCE, INC.
	 	 	100.0000	 	 	U.S.
	SUN GIANT, INC.
	 	 	100.0000	 	 	U.S.
	VELTMAN TERMINAL CO.
	 	 	100.0000	 	 	U.S.
	WAHIAWA WATER COMPANY
	 	 	100.0000	 	 	U.S.
	WEST FOODS, INC.
	 	 	100.0000	 	 	U.S.
	ZANTE CURRANT, INC.
	 	 	100.0000	 	 	U.S.
	DOLE U.K. LIMITED
	 	 	100.0000	 	 	United Kingdom
	JP FRESH, LTD
	 	 	100.0000	 	 	United Kingdom
	DOLE DE VENEZUELA, S.A.
	 	 	100.0000	 	 	Venezuela
	INVERSIONES AGRICA, S.A.
	 	 	100.0000	 	 	Venezuela
	INVERSIONES DEL AGRO, C.A.
	 	 	100.0000	 	 	Venezuela
	DOLE VIETNAM, LLC
	 	 	100.0000	 	 	Vietnam






 









 






SCHEDULE IX




EXISTING INVESTMENTS



The schedule of Existing Investments separately furnished to the Administrative Agent is
incorporated herein by reference.








 









 








SCHEDULE X




TAX MATTERS



The schedule of Tax Matters separately furnished to the Administrative Agent is incorporated herein
by reference.







 









 








SCHEDULE XI




INSURANCE



The schedule of Insurance separately furnished to the Administrative Agent is incorporated herein
by reference.










 









 








SCHEDULE XIII




NON-GUARANTOR SUBSIDIARIES;

EXCLUDED FOREIGN SUBSIDIARIES



Part A — Non-Guarantor Subsidiaries:



County Line Mutual Water Company



All Subsidiaries of the U.S. Borrower organized under the laws of any jurisdiction other than the
United States.








 









 








SCHEDULE XVI




TRANSACTIONS WITH AFFILIATES



The schedule of Transactions with Affiliates separately furnished to the Administrative Agent is
incorporated herein by reference.






 









 








SCHEDULE XVII




PRINCIPAL PROPERTIES




	 	 	 	 	 	 	 	 	 
	Real Property	 	Property Owner	 	Property Location	 	Parcel/Assessment No.
	Soledad Facility

	 	Bud Antle, Inc.
	 	Soledad, CA
	 	 	257-081-038-000	 
	 
	 	 	 	 	 	 	 	 
	Springfield Value 

Added Processing 

Plant

	 	Dole Dried Fruit
and Nut Company, a
California General
Partnership
	 	Springfield, OH
	 	 	33-07-0004-000-064	 
	 
	 	 	 	 	 	 	 	 
	Atwater Processing
Plant — Frozen
Foods

	 	Dole Packaged

Foods, LLC
	 	Atwater, CA
	 	 	150-030-035

150-030-038	 
	 
	 	 	 	 	 	 	 	 
	Bessemer City Plant

	 	Bud Antle, Inc.
	 	Bessemer City, NC
	 	 	209208	 






 









 








SCHEDULE XVIII




EXISTING LIENS




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	Calazo Corporation

	 	AZ Secretary of State
	 	DBNY
	 	4/3/03

Continuation

12/21/07
	 	 	200312557823	 	 	All assets
	 

	 	 	 	DBNY
	 	04/20/06
	 	 	200614172486	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	03/19/09
	 	 	200915718575	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	AG 1970, Inc.

	 	CA Secretary of State
	 	DBNY
	 	4/3/03

Continuation

12/20/07
	 	0309760064

Continuation

0771411238
	 	All assets
	 

	 	 	 	DBNY
	 	09/25/06
	 	 	067086107338	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	03/18/09
	 	 	097190939744	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	AG 1971, Inc.

	 	CA Secretary of State
	 	DBNY
	 	4/3/03

Continuation

12/20/07
	 	0309760004

Continuation

0771411244
	 	All assets
	 

	 	 	 	DBNY
	 	04/20/06
	 	 	067067202898	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	03/18/09
	 	 	097190939865	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	AG 1972, Inc.

	 	CA Secretary of State
	 	DBNY
	 	4/3/03

Continuation

12/20/07
	 	0309760001

Continuation

0771411245
	 	All assets
	 

	 	 	 	DBNY
	 	04/20/06
	 	 	067067203041	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	03/18/09
	 	 	097190939986	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Alyssum Corporation

	 	CA Secretary of State
	 	DBNY
	 	4/3/03

Continuation

12/20/07
	 	0309760002

Continuation

0771411248
	 	All assets
	 

	 	 	 	DBNY
	 	04/20/06
	 	 	067067203162	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	03/18/2009
	 	 	097190940039	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Barclay Hollander Corporation

	 	CA Secretary of State
	 	DBNY
	 	4/3/03

Continuation
	 	0309460660
Continuation
	 	All assets






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	 

	 	 	 	 	 	12/20/07
	 	 	0771411250	 	 	 
	 

	 	 	 	DBNY
	 	04/20/06
	 	 	067067203304	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	03/18/09
	 	 	097190940150	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Bud Antle, Inc.

	 	CA Secretary of State
	 	DBNY
	 	4/3/03

Continuation

12/20/07
	 	0309460685

Continuation

0771411276
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067203425	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190940271	 	 	All assets
	 

	 	CA Ventura County
	 	DBNY
	 	4/16/06
	 	 	20060419-0084017	 	 	Deed of Trust, Security Agt.,
Asgnt. of Leases, Rents and
Profits, Financing Statement and
Fixture Filing
	 

	 	 	 	DBNY
	 	4/16/06
	 	 	20060419-0084018	 	 	Security Agt., Asgnt. of Leases,
Rents and Profits, Financing
Statement and Fixture Filing
	 

	 	 	 	DBNY
	 	3/20/09
	 	 	20090320-00043413-0	 	 	Security Agt., Asgnt. of Leases,
Rents and Profits, Financing
Statement and Fixture Filing
	 

	 	 	 	US Bank National

Association
	 	3/20/09
	 	 	20090320-00043416-0	 	 	Third Lien Deed of Trust,
Security Agt., Asgnt. of Leases,
Rents and Profits, Financing
Statement and Fixture Filing
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Calicahomes, Inc.

	 	CA Secretary of State
	 	DBNY
	 	4/3/03

Continuation

12/20/07
	 	0309760044

Continuation

0771411277
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067203546	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190940392	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	California Polaris, Inc.

	 	CA Secretary of State
	 	DBNY
	 	4/3/03

Continuation

12/20/07
	 	0309460658

Continuation

0771411279
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067203667	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190940413	 	 	All assets






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	CB North, LLC

	 	CA Secretary of State
	 	DBNY
	 	12/29/04

Continuation

07/15/09
	 	047010326730

Continuation

0972025049
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067203788	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190940534	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	CB South, LLC

	 	CA Secretary of State
	 	DBNY
	 	12/29/04

Continuation

07/15/09
	 	047010327004

Continuation

0972025050
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067203809	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190943709	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole ABPIK, Inc.

	 	CA Secretary of State
	 	DBNY
	 	4/3/03

Continuation

12/20/07
	 	0309760082

Continuation

0771411280
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067204173	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190943820	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Arizona Dried Fruit and Nut
Company

	 	CA Secretary of State
	 	DBNY
	 	4/3/03

Continuation

12/20/07
	 	0309760075

Continuation

0771411285
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067204799	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190943941	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Berry Company, LLC

	 	CA Secretary of State
	 	Power Machinery

Center
	 	4/27/05
	 	 	057024753710	 	 	Forklift, 2 batteries, and charger
	 

	 	 	 	Power Machinery

Center
	 	4/27/05
	 	 	057024760708	 	 	4 Forklifts and 8 batteries
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Carrot Company

	 	CA Secretary of State
	 	DBNY
	 	4/3/03

Continuation

12/20/2007
	 	0309760101

Continuation

0771411288
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067205821	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190944073	 	 	All assets






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	Dole Citrus

	 	CA Secretary of State
	 	DBNY
	 	4/3/03

Continuation

12/20/07
	 	0309760092

Continuation

0771411312
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067207106	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190944194	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole DF&N, Inc.

	 	CA Secretary of State
	 	DBNY
	 	4/3/03

Continuation

12/20/07
	 	0309460661

Continuation

0771411319
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067210150	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190944215	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Dried Fruit and Nut Company,
a California General Partnership

	 	CA Secretary of State
	 	DBNY
	 	4/03/03

Continuation

12/20/07
	 	0309460663

Continuation

0771411323
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067211787	 	 	All assets
	 

	 	 	 	DBNY
	 	02/09/09
	 	 	097187275127	 	 	All assets
	 

	 	 	 	DBNY
	 	03/18/09
	 	 	097190939623	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	03/18/09
	 	 	097190944336	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	03/18/09
	 	 	097190944457	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Farming, Inc.

	 	CA Secretary of State
	 	DBNY
	 	4/3/03

Continuation

12/20/07
	 	0309760570

Continuation

0771411325
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067212677	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190944578	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Food Company, Inc.

	 	CA Secretary of State
	 	Dolphin Capital

Corporation
	 	12/2/05
	 	 	057050671899	 	 	Furnished Modular Complex
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Fresh Fruit Company

	 	CA Secretary of State
	 	Puget Sound Leasing
	 	9/24/07
	 	 	077130156656	 	 	Commercial espresso machine
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Fresh Vegetables, Inc.

	 	CA Secretary of State
	 	Ameritech Credit

Corporation
	 	9/15/00

Continuation

7/22/05
	 	0026660751

Continuation

0570351874
	 	All controllers, modems,
computers and other date
transmission devices, etc.
subject to lease agreement.






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	 

	 	 	 	Farm Credit Leasing

Services

Corporation
	 	10/29/01

Continuation

9/8/06
	 	0130260875

Continuation

0670843026
	 	2001 full car vacuum tube system
and related equipment subject to
lease agreement.
	 

	 	 	 	Santa Barbara Bank

& Trust Leasing
	 	7/18/03

Assignment

7/31/07

Continuation

3/25/08
	 	0320460568

Assignment

0771236345

Continuation

0871517393
	 	1 jumbo trash compactor
	 

	 	 	 	Wells Fargo
Equipment Finance,
Inc.
	 	8/15/03

Continuation

6/26/08
	 	0323160449

Continuation

0871629841
	 	Precautionary filing relating to
lease forklift truck
	 

	 	 	 	Farm Credit Leasing

Services

Corporation
	 	2/18/04

Continuation

12/23/08
	 	0405560915

Continuation

0871824578
	 	2 field vacuum tube systems and
related equipment subject to
lease agreement.
	 

	 	 	 	De Lage Landen
Financial Services
Inc.
	 	5/14/04

Continuation

4/8/09
	 	0414360036

Continuation

0971929261
	 	Leased equipment
	 

	 	 	 	DBNY
	 	4/03/03

Continuation

12/20/07
	 	0309760205

Continuation

0771411327
	 	All assets
	 

	 	 	 	Farm Credit Leasing

Services

Corporation
	 	2/11/05

Continuation

11/20/09
	 	057015716911

Continuation

0972149388
	 	1 field vacuum tube system and
related equipment subject to
lease agreement.
	 

	 	 	 	Farm Credit Leasing

Services

Corporation
	 	3/14/05

Continuation

12/21/09
	 	057019139904

Continuation

0972174984
	 	2 field vacuum tube systems and
related equipment subject to
lease agreement.
	 

	 	 	 	IOS Capital
	 	04/11/05
	 	 	057022758086	 	 	Leased equipment
	 

	 	 	 	De Lage Landen
Financial Services
Inc.
	 	4/27/05
	 	 	057024680113	 	 	Leased equipment
	 

	 	 	 	De Lage Landen
Financial Services
Inc.
	 	4/27/05
	 	 	057024680234	 	 	Leased equipment
	 

	 	 	 	Printpack, Inc.
	 	9/2/05
	 	 	057040107731	 	 	Consigned inventory
	 

	 	 	 	IOS Capital
	 	12/20/05
	 	 	057052578897	 	 	Leased equipment
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Toyota Motor Credit

Corporation/Prolift
	 	1/07/06
	 	 	067054500330	 	 	Toyota forklifts






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	 

	 	 	 	Industrial
Equipment Co. LLC	 	 	 	 	 	 	 	 
	 

	 	 	 	NMGH Financial

Services
	 	3/27/06
	 	 	067063951633	 	 	Leased equipment
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067216853	 	 	All assets
	 

	 	 	 	IOS Capital
	 	5/1/06
	 	 	067068393810	 	 	Leased equipment
	 

	 	 	 	IOS Capital
	 	1/11/07
	 	 	077098327508	 	 	Leased equipment
	 

	 	 	 	Citicapital

Commercial Corp
	 	2/28/07
	 	 	077104349752	 	 	Ford truck and utility body with
ladder rack
	 

	 	 	 	Toyota Material

Handling Midwest
	 	5/23/07
	 	 	077114842741	 	 	Forklifts, batteries, and side
shifters
	 

	 	 	 	IBM Credit
	 	6/25/07
	 	 	077118698906	 	 	IBM equipment
	 

	 	 	 	US Bancorp
	 	7/03/07
	 	 	077120083806	 	 	Janitorial cleaning
	 

	 	 	 	Salinas Valley Ford

Sales, Toyota Motor

Credit Corp
	 	12/21/07

Amendment

12/21/07
	 	077141062391

Amendment

0771410662
	 	7 Ford trucks
	 

	 	 	 	Salinas Valley Ford

Sales
	 	2/6/08
	 	 	087146299501	 	 	2 Ford trucks
	 

	 	 	 	Salinas Valley Ford

Sales
	 	2/11/08
	 	 	087146809104	 	 	2 Ford trucks
	 

	 	 	 	Salinas Valley Ford

Sales
	 	2/14/08
	 	 	087147284819	 	 	Ford truck
	 

	 	 	 	RDO Equipment Co.
	 	4/3/08
	 	 	087152779804	 	 	Ingersol Rand Reach truck
	 

	 	 	 	GE Capital Corp
	 	4/28/08

Amendment

8/8/08
	 	087155589987

Amendment

0871681682
	 	Camera/laser sorter system
	 

	 	 	 	Motion Industries
	 	5/7/08
	 	 	087156872448	 	 	Maintenance, repair, and
operational assets supplied by
Secured Party
	 

	 	 	 	GE Capital Corp
	 	5/30/08
	 	 	087159766776	 	 	2 Camera/laser sorter systems
	 

	 	 	 	Co Active, US

Bancorp
	 	8/28/08

Assignment

10/14/08
	 	087170284784

Assignment

0871751658
	 	Waste recycling system
	 

	 	 	 	GE Capital Corp
	 	9/26/08
	 	 	087173351762	 	 	Camera/laser sorter system
	 

	 	 	 	RDO Equipment Co.
	 	11/05/08
	 	 	087177608488	 	 	John Deere Reach Fork






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	 

	 	 	 	IKON Financial

Services
	 	11/09/08
	 	 	087177985820	 	 	Leased equipment
	 

	 	 	 	RDO Equipment Co.
	 	3/2/09
	 	 	097189208276	 	 	Ingersol Rand Reach fork
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190944699	 	 	All assets
	 

	 	 	 	Wells Fargo Bank,
N.A.
	 	8/20/09
	 	 	097206163195	 	 	Nissan forklifts
	 

	 	 	 	Smurfit-Stone

Container

Enterprises
	 	8/31/09
	 	 	097206992125	 	 	3 Meta 150 and Conveyors
	 

	 	 	 	Toyota Material

Handling Midwest,

Toyota Motor Credit
	 	9/9/09

Amendment

9/10/09
	 	097207701639

Amendment

0972078284
	 	22 Toyota forklifts
	 

	 	 	 	IKON Financial

Services
	 	10/31/09
	 	 	097212900535	 	 	Leased equipment
	 

	 	 	 	GE Capital Corp
	 	12/7/09

Amendment

2/5/10
	 	097216383786

Amendment

1072223937
	 	Food processing equipment
	 

	 	 	 	GE Capital Corp
	 	1/4/10
	 	 	107218902363	 	 	Food processing equipment
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Orland, Inc.

	 	CA Secretary of State
	 	DBNY
	 	4/03/03

Continuation

12/20/07
	 	0309760210

Continuation

0771411331
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067216974	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190944710	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Packaged Foods, LLC

	 	CA Secretary of State
	 	DBNY
	 	4/20/06
	 	 	067067217006	 	 	All assets
	 

	 	 	 	Verizon Credit
	 	11/2/07
	 	 	077135358716	 	 	Leased CallPilot expansion and
Nortel equipment
	 

	 	 	 	Wells Fargo Bank NA
	 	8/1/08
	 	 	087167294599	 	 	Forklifts
	 

	 	 	 	Bank of the West,
Trinity Division,
First American
Comm. Bancorp
	 	9/2/08

Assignment

2/24/09
	 	087170507661

Assignment

0971885915
	 	All Leased and Owned Equipment
	 

	 	 	 	Bank of the West,
Trinity Division,
First American
Comm. Bancorp
	 	9/11/08

Assignment

2/24/09
	 	087171594375

Assignment

0971885953
	 	All Leased and Owned Equipment






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	 

	 	 	 	DBNY
	 	2/9/09
	 	 	097187277381	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190944831	 	 	All assets
	 

	 	 	 	Wells Fargo Bank NA
	 	10/13/09
	 	 	097211052805	 	 	Forklift
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	E. T. Wall Company

	 	CA Secretary of State
	 	DBNY
	 	4/03/03

Continuation

12/20/07
	 	0309760237

Continuation

0771411355
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067217127	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190944952	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Earlibest Orange Association, Inc.

	 	CA Secretary of State
	 	DBNY
	 	4/03/03

Continuation

12/20/07
	 	0309760189

Continuation

0771411336
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067217248	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190945084	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Fallbrook Citrus Company, Inc.

	 	CA Secretary of State
	 	DBNY
	 	4/03/03

Continuation

12/20/07
	 	0309760263

Continuation

0771411339
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067217369	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190945347	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Lindero Headquarters Company, Inc.

	 	CA Secretary of State
	 	DBNY
	 	4/03/03

Continuation

12/20/07
	 	0309760256

Continuation

0771411343
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067217480	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190945468	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Lindero Property, Inc.

	 	CA Secretary of State
	 	DBNY
	 	4/03/03

Continuation

12/20/07
	 	0309760553

Continuation

0771411344
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067217622	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190945589	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Milagro Ranch, LLC

	 	CA Secretary of State
	 	DBNY
	 	12/29/04

Continuation
	 	047010328257

Continuation

	 	All assets






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	 

	 	 	 	 	 	07/15/09
	 	 	0972025052	 	 	 
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067217743	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190945600	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Oceanview Produce Company

	 	CA Secretary of State
	 	DBNY
	 	4/03/03

Continuation

12/20/07
	 	0309760619

Continuation

0771411348
	 	All assets
	 

	 	 	 	AGCO Finance LLC
	 	6/13/03

Amendment

12/15/03

Continuation

4/14/08
	 	0316960442

Amendment

03353C0099

Continuation

0871542919
	 	Certain leased equipment
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067217864	 	 	All assets
	 

	 	 	 	AGCO Finance LLC
	 	7/10/06
	 	 	067077630884	 	 	Certain leased equipment
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190945721	 	 	All assets
	 

	 	 	 	Toyota Motor Credit

Corp
	 	11/23/09
	 	 	097215171821	 	 	3 Forklifts
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Prairie Vista, Inc.

	 	CA Secretary of State
	 	DBNY
	 	4/03/03

Continuation

12/20/07
	 	0309460686

Continuation

0771411349
	 	All assets
	 

	 	 	 	Fannie Mae
(assigned to
Citibank West, FSB)
	 	8/25/05

Assignment

9/8/08
	 	057039425136

Assignment

0871710937
	 	Property, rents and profits,
fixtures, and ancillary rights
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067217985	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190945842	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Rancho Manana, LLC

	 	CA Secretary of State
	 	DBNY
	 	12/29/04

Continuation

7/15/09
	 	04701329147

Continuation

0972025053
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067218017	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190945963	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Royal Packing Co.

	 	CA Secretary of State
	 	DBNY
	 	4/03/03

Continuation

12/20/07
	 	0309760591

Continuation

0771411351
	 	All assets






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	 

	 	 	 	CNH Capital America

LLC
	 	10/26/05
	 	 	057046390802	 	 	Tractor
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067218259	 	 	All assets
	 

	 	 	 	CNH Capital America

LLC
	 	8/31/06
	 	 	067083463380	 	 	Tractor
	 

	 	 	 	CNH Capital America

LLC
	 	1/20/07
	 	 	077099417135	 	 	4 Tractors
	 

	 	 	 	CNH Capital America

LLC
	 	1/23/07
	 	 	077099587062	 	 	2 Tractors
	 

	 	 	 	CNH Capital America

LLC
	 	10/10/08
	 	 	087174879758	 	 	Tractor and Trimble RTK Autopilot
Precautionary Filing
	 

	 	 	 	CNH Capital America

LLC
	 	10/10/08
	 	 	087174879879	 	 	Tractor Precautionary Filing
	 

	 	 	 	CNH Capital America

LLC
	 	12/31/08
	 	 	087183085000	 	 	2 Tractors and 2 Autopilots
Precautionary Filing
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190946095	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Veltman Terminal Co.

	 	CA Secretary of State
	 	DBNY
	 	4/03/03

Continuation

12/20/07
	 	0309760609

Continuation

0771411354
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	067067218370	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	097190946116	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Food Company, Inc.

	 	DE Secretary of State
	 	DBNY
	 	4/03/03

Continuation

12/20/07
	 	30878853

Continuation

2007 4890538
	 	All assets
	 

	 	 	 	IBM Credit LLC
	 	09/09/04
	 	 	42533059	 	 	Leased IBM equipment and software
	 

	 	 	 	IBM Credit LLC
	 	09/23/04
	 	 	42678862	 	 	Leased IBM equipment and software
	 

	 	 	 	IOS Capital
	 	9/20/04
	 	 	42691584	 	 	Leased equipment
	 

	 	 	 	Forsythe
Technology,
Inc./McArthur
Associates, Inc.
	 	10/05/04

Amendment

12/01/04
	 	42791855

Amendment

42791855
	 	Leased computer equipment
	 

	 	 	 	IBM Credit LLC
	 	05/23/05
	 	 	51581801	 	 	Leased IBM equipment and software






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	 

	 	 	 	IBM Credit LLC
	 	08/11/05
	 	 	52494798	 	 	Leased IBM equipment and software
	 

	 	 	 	IBM Credit LLC
	 	10/13/05
	 	 	53164341	 	 	Leased IBM equipment and software
	 

	 	 	 	IBM Credit LLC
	 	10/14/05
	 	 	53180339	 	 	Leased IBM equipment and software
	 

	 	 	 	IBM Credit LLC
	 	11/21/05
	 	 	53610087	 	 	Leased IBM equipment and software
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	61338797	 	 	All assets
	 

	 	 	 	IBM Credit LLC
	 	4/9/07
	 	 	2007 1311058	 	 	Leased IBM equipment and software
	 

	 	 	 	IBM Credit LLC
	 	6/21/07
	 	 	2007 2367257	 	 	Leased IBM equipment and software
	 

	 	 	 	IKON Financial

Services
	 	10/3/07
	 	 	2007 3720447	 	 	Leased equipment
	 

	 	 	 	IKON Financial

Services
	 	10/3/07
	 	 	2007 3720454	 	 	Leased equipment
	 

	 	 	 	NFS Leasing
	 	10/29/07

Assignment

1/30/09
	 	2007 4102603

Assignment

2009 0413077
	 	Leased computer equipment and
peripherals
	 

	 	 	 	Verizon Credit Inc.
	 	11/2/07
	 	 	2007 4182001	 	 	Leased Nortel equipment
	 

	 	 	 	Solarcom Capital,
LLC, et al and
Popular Equipment
Finance
	 	2/8/08

Amendment

4/23/08
	 	2008 0485530

Amendment

2008 1411931
	 	Leased computer equipment
	 

	 	 	 	Solarcom Capital,
LLC, et al and
Popular Equipment
Finance
	 	2/14/08

Amendment

7/2/08
	 	2008 0556900

Amendment

2008 2266441
	 	Leased computer equipment
	 

	 	 	 	Solarcom Capital
and Key Equipment
Finance
	 	2/14/08
	 	 	2008 0557221	 	 	Leased equipment
	 

	 	 	 	Presidio Technology
Capital and Key
Equipment Finance
	 	7/22/08
	 	 	2008 2506465	 	 	Leased equipment
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009 0874013	 	 	All assets






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	 

	 	 	 	NFS Leasing
	 	5/5/09
	 	 	2009 1411351	 	 	Leased computer equipment
	 

	 	 	 	Wells Fargo

Financing Leasing
	 	5/11/09
	 	 	2009 1555876	 	 	Leased networking equipment and
software
	 

	 	 	 	NFS Leasing and
Danversbank, et al
	 	6/2/09
	 	 	2009 1734034	 	 	Leased computer equipment and
peripherals
	 

	 	 	 	Presidio Technology
Capital and
Heartland Business
Credit, et al
	 	9/24/09
	 	 	2009 3058069	 	 	Leased equipment
	 

	 	 	 	Forsythe/Mcarthur

Associates
	 	10/5/09
	 	 	2009 3191936	 	 	Leased computer and other
equipment
	 

	 	 	 	Presidio Technology
Capital and
Heartland Business
Credit, et al
	 	10/30/09
	 	 	2009 3494272	 	 	Leased equipment
	 

	 	 	 	IBM Credit LLC
	 	12/31/09
	 	 	2009 4191380	 	 	Leased IBM equipment and software
	 

	 	 	 	Presidio Technology
Capital and
Heartland Business
Credit, et al
	 	1/14/10
	 	 	2010 0148969	 	 	Leased equipment
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Bananera Antillana (Colombia) Inc.

	 	DE Secretary of State
	 	DBNY
	 	4/03/03

Continuation

12/20/07
	 	30875289

Continuation

2007 4890603
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	61338854	 	 	All assets
	 

	 	 	 	US Bank National
	 	3/18/09
	 	 	2009 0874286	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Clovis Citrus Association

	 	DE Secretary of State
	 	DBNY
	 	3/04/03

Continuation

12/20/07
	 	030878747

Continuation

2007 4890595
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	61338847	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009 0874260	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Delphinium Corporation

	 	DE Secretary of State
	 	DBNY
	 	3/04/03

Continuation

12/20/07
	 	30878838

Continuation

2007 4890561
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	61338813	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009 0874229	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Berry Company, LLC

	 	DE Secretary of State
	 	DBNY
	 	4/20/06
	 	 	61338821	 	 	All assets






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	 

	 	 	 	DBNY
	 	2/2409
	 	 	2009 0595808	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009 0874195	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Europe Company

	 	DE Secretary of State
	 	DBNY
	 	4/03/03

Continuation

12/20/07
	 	30878846

Continuation

2007 4890546
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	61338839	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009 0874161	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Foods Flight Operations, Inc.

	 	DE Secretary of State
	 	DBNY
	 	4/03/03

Continuation

12/20/07
	 	30878861

Continuation

2007 4890512
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	61338789	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009 0873999	 	 	All assets
	 

	 	 	 	General Electric

Capital Corporation
	 	4/01/03

Continuation

11/16/07
	 	30845423

Continuation

2007 4381033
	 	Bombardier Global Express aircraft
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Northwest, Inc.

	 	DE Secretary of State
	 	DBNY
	 	04/3/03

Continuation

12/20/07
	 	30878879

Continuation

2007 4890496
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	61338730	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009 0873965	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Sunfresh Express, Inc.

	 	DE Secretary of State
	 	DBNY
	 	04/3/03

Continuation

12/20/07
	 	30878903

Continuation

2007 4890462
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	61338748	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009 0873957	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Standard Fruit and Steamship
Company

	 	DE Secretary of State
	 	DBNY
	 	04/3/03

Continuation

12/20/07
	 	30878895

Continuation

2007 4890454
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	61338722	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009 1174504	 	 	All assets






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	Standard Fruit Company

	 	DE Secretary of State
	 	DBNY
	 	04/3/03

Continuation

12/20/07
	 	30878697

Continuation

2007 4890447
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	61338698	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009 0873890	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Sun Country Produce, Inc.

	 	DE Secretary of State
	 	DBNY
	 	04/3/03

Continuation

12/20/07
	 	30878705

Continuation

2007 4890421
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	61338672	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009 0873866	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	West Foods, Inc.

	 	DE Secretary of State
	 	DBNY
	 	04/3/03

Continuation

12/20/07
	 	30878721

Continuation

2007 4890413
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	61338649	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009 0873817	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Cool Advantage, Inc.

	 	FL Secured Transaction

Registry
	 	DBNY
	 	4/03/03

Continuation

12/20/07
	 	200303648250

Continuation

20070727008X
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	200602439653	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	200900200926	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Cool Care, Inc.

	 	FL Secured Transaction

Registry
	 	DBNY
	 	04/3/03

Continuation

12/20/07
	 	200303648269

Continuation

200707270098
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	200602439645	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	200900200934	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Saw Grass Transport, Inc.

	 	FL Secured Transaction

Registry
	 	DBNY
	 	04/3/03

Continuation

12/20/07
	 	200303648285

Continuation

200707270187
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	200602439661	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	200900200942	 	 	All assets






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	DNW Services Company

	 	WA Department of
Licensing
	 	DBNY
	 	04/3/03

Continuation

2/27/08
	 	2003-098-9527-1

Continuation

2008-058-0723-5
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006-114-3317-8	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009-079-3383-2	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Pacific Coast Truck Company

	 	WA Department of
Licensing
	 	DBNY
	 	04/3/03

Continuation

2/27/08
	 	2003-098-9525-7

Continuation

2008-058-0722-8
	 	All assets
	 

	 	 	 	International Truck
and Engine
Corporation and/or
Navistar Financial
Corporation
	 	02/05/02

Amendment

06/12/02

Amendment

06/22/05

Amendment

3/29/06

Amendment

3/29/06

Continuation

8/21/06
	 	2002-051-1455-1

Amendment

2002-163-1973-0

Amendment

2005-173-9753-6

Amendment

2006-088-6482-4

Amendment

2006-088-6492-3

Continuation

2006-235-3114-5
	 	Trucks and trailers
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006-114-3323-9	 	 	All assets
	 

	 	 	 	Navistar Financial

Corporation
	 	7/20/06
	 	 	2006-201-9275-2	 	 	Motor vehicles and accessories
	 

	 	 	 	Navistar Financial

Corporation
	 	9/22/06
	 	 	2006-265-1002-4	 	 	Motor vehicles and accessories
	 

	 	 	 	US Bank National

Association
	 	3/19/09
	 	 	2009-079-3382-5	 	 	All assets
	 

	 	 	 	US Bancorp
	 	10/30/09
	 	 	2009-303-7853-2	 	 	For informational purposes: 1
5675PT WTM000714; 1 MFP3635XT
LBP252814
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Pan-Alaska Fisheries, Inc.

	 	WA Department of
Licensing
	 	DBNY
	 	04/3/03

Continuation

2/27/08
	 	2003-098-9526-4

Continuation

2008-058-0721-1
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006-114-3326-0	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009-079-3381-8	 	 	All assets






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	Diversified Imports Co.

	 	NV Secretary of State
	 	DBNY
	 	04/3/03

Continuation

2/26/08
	 	2003009378-6

Continuation

2008006391-1
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006012427-2	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009006897-5	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Assets, Inc.

	 	NV Secretary of State
	 	DBNY
	 	04/3/03

Continuation

2/26/08
	 	2003009379-8

Continuation

2008006390-9
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006012428-4	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009006898-7	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Fresh Fruit Company

	 	NV Secretary of State
	 	DBNY
	 	04/3/03

Continuation

2/26/08
	 	2003009380-1

Continuation

2008006389-6
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006012429-6	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009006899-9	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Holdings, Inc.

	 	NV Secretary of State
	 	DBNY
	 	04/3/03

Continuation

2/26/08
	 	2003009381-3

Continuation

2008006386-0
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006012430-9	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009006900-4	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Logistics Services, Inc.

	 	NV Secretary of State
	 	DBNY
	 	04/3/03

Continuation

2/26/08
	 	2003009382-5

Continuation

2008006384-6
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006012432-3	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009006901-6	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Ocean Cargo Express, Inc.

	 	NV Secretary of State
	 	DBNY
	 	04/3/03

Continuation

12/20/07
	 	2003009384-9

Continuation

2008006383-4
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006012434-7	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009006902-8	 	 	All assets






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	Dole Ocean Liner Express, Inc.

	 	NV Secretary of State
	 	DBNY
	 	04/3/03

Continuation

2/26/08
	 	2003009383-7

Continuation

2008006382-2
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006012435-9	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009006903-0	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Renaissance Capital Corporation.

	 	NV Secretary of State
	 	DBNY
	 	04/3/03

Continuation

2/26/08
	 	2003009385-1

Continuation

2008006381-0
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006012439-7	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009006904-2	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Sun Giant, Inc.

	 	NV Secretary of State
	 	DBNY
	 	04/3/03

Continuation

2/26/08
	 	2003009386-3

Continuation

2008006388-4
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006012441-2	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009006905-4	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Blue Anthurium, Inc.

	 	HI Bureau of Conveyances
	 	DBNY
	 	04/04/03

Continuation

12/20/07
	 	2003-062776

Continuation

2007-219149
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006-073264	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009-041179	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Cerulean, Inc.

	 	HI Bureau of Conveyances
	 	DBNY
	 	04/04/03

Continuation

12/20/07
	 	2003-062777

Continuation

2007-219150
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006-073265	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009-041180	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Diversified, Inc.

	 	HI Bureau of Conveyances
	 	DBNY
	 	04/04/03

Continuation

12/20/07
	 	2003-062765

Continuation

2007-219152
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006-073273	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009-041181	 	 	All assets






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	Dole Land Company, Inc.

	 	HI Bureau of Conveyances
	 	DBNY
	 	04/03/03

Continuation

12/20/07
	 	2003-062766

Continuation

2007-219151
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006-073268	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009-041182	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Packaged Foods Corporation

	 	HI Bureau of Conveyances
	 	DBNY
	 	04/03/03

Continuation

12/20/07
	 	2003-062767

Continuation

2007-219153
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006-073269	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009-041183	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	La Petitie d’Agen, Inc.

	 	HI Bureau of Conveyances
	 	DBNY
	 	04/03/03

Continuation

12/20/07
	 	2003-062775

Continuation

2007-219155
	 	All assets
	 

	 	 	 	DBNY
	 	4/19/06
	 	 	2006-073272	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009-041184	 	 	All assets
	 

	 	 	 	DBNY
	 	3/23/09
	 	 	2009-043090	 	 	Mortgage, Leases, Rents and
Profits, Fixture Filing, and
ancillary rights
	 

	 	 	 	DBNY
	 	3/23/09
	 	 	2009-043091	 	 	Mortgage, Security Agreement,
Assignment of Leases, Rents and
Profits, Financing Statement and
Fixture Filing
	 

	 	 	 	US Bank National

Association
	 	3/23/09
	 	 	2009-043101	 	 	Mortgage, Security Agreement,
Assignment of Leases, Rents and
Profits, Financing Statement and
Fixture Filing
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	M K Development, Inc.

	 	HI Bureau of Conveyances
	 	DBNY
	 	04/03/03

Continuation

2/26/08
	 	2003-062768

Continuation

2008-028363
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006-073266	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009-041185	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Malaga Company, Inc.

	 	HI Bureau of Conveyances
	 	DBNY
	 	04/03/03

Continuation
	 	2003-062769

Continuation

	 	All assets






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	 

	 	 	 	 	 	12/20/07
	 	 	2007-219156	 	 	 
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006-073267	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009-041186	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Muscat, Inc.

	 	HI Bureau of Conveyances
	 	DBNY
	 	04/03/03

Continuation

2/26/08
	 	2003-062770

Continuation

2008-028364
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006-073270	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009-041187	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Oahu Transport Company, Limited

	 	HI Bureau of Conveyances
	 	DBNY
	 	04/03/03

Continuation

2/26/08
	 	2003-062771

Continuation

2006-028365
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006-073274	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009-041188	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Wahiawa Water Company, Inc.

	 	HI Bureau of Conveyances
	 	DBNY
	 	4/04/03

Continuation

2/26/08
	 	2003-062772

Continuation

2006-028367
	 	All assets
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006-073271	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009-041189	 	 	All assets
	 

	 	 	 	DBNY
	 	3/23/09
	 	 	2009-043088	 	 	Mortgage, Security Agreement,
Assignment of Leases, Rents and
Profits, Financing Statement and
Fixture Filing
	 

	 	 	 	DBNY
	 	3/23/09
	 	 	2009-043089	 	 	Mortgage, Security Agreement,
Assignment of Leases, Rents and
Profits, Financing Statement and
Fixture Filing
	 

	 	 	 	US Bank National

Association
	 	3/23/09
	 	 	2009-043105	 	 	Mortgage, Security Agreement,
Assignment of Leases, Rents and
Profits, Financing Statement and
Fixture Filing
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Zante Currant, Inc.

	 	HI Bureau of Conveyances
	 	DBNY
	 	4/03/03

Continuation
	 	2003-062774

Continuation

	 	All assets






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	 

	 	 	 	 	 	2/26/08
	 	 	2008-028368	 	 	 
	 

	 	 	 	DBNY
	 	4/20/06
	 	 	2006-073263	 	 	All assets
	 

	 	 	 	US Bank National

Association
	 	3/18/09
	 	 	2009-041190	 	 	All assets
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Fresh Fruit International 

Limited

	 	DC Recorder of Deeds
	 	Bank of America,
N.A.
	 	11/15/01
	 	 	2001110459	 	 	Precautionary filing in

connection with a lease
	 

	 	 	 	DBNY
	 	04/07/03
	 	 	2003040117	 	 	All assets
	 

	 	 	 	DBNY
	 	12/22/03
	 	 	2003183975	 	 	All right, title and interest in
the Bahamian Flag vessel, Dole
Costa Rica
	 

	 	 	 	DBNY
	 	12/22/03
	 	 	2003183980	 	 	All right, title and interest in
the Bahamian Flag vessel, Dole
Honduras
	 

	 	 	 	DBNY
	 	12/22/03
	 	 	2003183981	 	 	All right, title and interest in
the Bahamian Flag vessel, Dole
California
	 

	 	 	 	DBNY
	 	12/22/03
	 	 	2003183982	 	 	All right, title and interest in
the Bahamian Flag vessel, Dole
Honduras
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Ventura Trading Ltd.

	 	DC Recorder of Deeds
	 	DBNY
	 	01/03/05
	 	 	2005000587	 	 	All right, title and interest in
the Bahamian Flag vessel, Dole
Europa
	 

	 	 	 	DBNY
	 	01/03/05
	 	 	2005000591	 	 	All right, title and interest in
the Bahamian Flag vessel, Dole
Costa Rica
	 

	 	 	 	DBNY
	 	01/03/05
	 	 	2005000557	 	 	All right, title and interest in
the Bahamian Flag vessel, Dole
California
	 

	 	 	 	DBNY
	 	01/03/05
	 	 	2005000561	 	 	All right, title and interest in
the Bahamian Flag vessel,
Tropical Sky
	 

	 	 	 	DBNY
	 	01/03/05
	 	 	2005000574	 	 	All right, title and interest in
the Bahamian Flag vessel,
Tropical Star
	 

	 	 	 	DBNY
	 	01/03/05
	 	 	2005000575	 	 	All right, title and interest in
the Bahamian Flag vessel,
Tropical Star






 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	 

	 	 	 	DBNY
	 	01/03/05
	 	 	2005000578	 	 	All right, title and interest in
the Bahamian Flag vessel,
Tropical Mist
	 

	 	 	 	DBNY
	 	01/03/05
	 	 	2005000579	 	 	All right, title and interest in
the Bahamian Flag vessel, Dole
Asia
	 

	 	 	 	DBNY
	 	01/03/05
	 	 	2005000585	 	 	All right, title and interest in
the Bahamian Flag vessel, Dole
Africa
	 

	 	 	 	DBNY
	 	01/03/05
	 	 	2005000589	 	 	All right, title and interest in
the Bahamian Flag vessel, Dole
America
	 

	 	 	 	DBNY
	 	01/03/05
	 	 	2005000593	 	 	All right, title and interest in
the Bahamian Flag vessel, Dole
Honduras
	 

	 	 	 	DBNY
	 	01/03/05
	 	 	2005000602	 	 	All right, title and interest in
the Bahamian Flag vessel, Dole
Ecuador
	 

	 	 	 	DBNY
	 	01/13/05
	 	 	2005006216	 	 	All right, title and interest in
the Bahamian Flag vessel,
Tropical Morn





$43,870,000 collateral deposit (combination of cash and letter of credit) pursuant to the ISDA
Credit Support Annex dated June 16, 2009 with Bank of America.



$26,390,000 collateral deposit (combination of cash and letter of credit) pursuant to the ISDA
Credit Support Annex dated June 16, 2009 with Bank of Nova Scotia.





 











 





Exhibit D to

Amendment No. 3




 


SECURITY AGREEMENT




among




DOLE FOOD COMPANY, INC.,




CERTAIN SUBSIDIARIES OF DOLE FOOD COMPANY, INC.




and




DEUTSCHE BANK AG NEW YORK BRANCH,

as COLLATERAL AGENT




 






Dated as of April 12, 2006




as amended on March 2, 2010




 





 


 









 







TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 

	 	ARTICLE I	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	SECURITY INTERESTS	 	 	 	 
	 
	 	 	 	 	 	 
	1.1

	 	Grant of Security Interests
	 	 	2	 
	1.2

	 	Power of Attorney
	 	 	4	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE II	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS	 	 	 	 
	 
	 	 	 	 	 	 
	2.1

	 	Necessary Filings
	 	 	5	 
	2.2

	 	No Liens
	 	 	5	 
	2.3

	 	Other Financing Statements
	 	 	5	 
	2.4

	 	Chief Executive Office; Record Locations
	 	 	5	 
	2.5

	 	Location of Inventory and Included Equipment
	 	 	5	 
	2.6

	 	Legal Names; Type of Organization (and Whether a
Registered Organization and/or a Transmitting
Utility); Jurisdiction of Organization; Location;
Organizational Identification Numbers; Changes
Thereto; Etc.
	 	 	5	 
	2.7

	 	Trade Names; Etc.
	 	 	6	 
	2.8

	 	Certain Significant Transactions
	 	 	6	 
	2.9

	 	Non-UCC Property
	 	 	6	 
	2.10

	 	As-Extracted Collateral; Timber-to-Be-Cut
	 	 	7	 
	2.11

	 	Collateral in the Possession of a Bailee
	 	 	7	 
	2.12

	 	Recourse
	 	 	7	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE III	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	SPECIAL PROVISIONS CONCERNING INCLUDED ACCOUNTS; INCLUDED
CONTRACT RIGHTS; INCLUDED INSTRUMENTS; CHATTEL PAPER AND CERTAIN
OTHER COLLATERAL	 	 	 	 
	 
	 	 	 	 	 	 
	3.1

	 	Additional Representations and Warranties
	 	 	7	 
	3.2

	 	Maintenance of Records
	 	 	7	 
	3.3

	 	Direction to Account Debtors; Contracting Parties; Etc.
	 	 	8	 
	3.4

	 	Modification of Terms; Etc.
	 	 	8	 
	3.5

	 	Collection
	 	 	8	 
	3.6

	 	Included Instruments
	 	 	9	 
	3.7

	 	Assignors Remain Liable Under Included Accounts
	 	 	9	 
	3.8

	 	Assignors Remain Liable Under Included Contracts
	 	 	9	 
	3.9

	 	Deposit Accounts; Etc.
	 	 	10	 
	3.10

	 	Letter-of-Credit Rights
	 	 	10	 
	3.11

	 	Commercial Tort Claims
	 	 	11	 
	3.12

	 	Chattel Paper
	 	 	11	 
	3.13

	 	Further Actions
	 	 	11	 
	3.14

	 	Overriding Provisions with Respect to TL Priority Collateral
	 	 	11	 






-i-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 

	 	ARTICLE IV	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	SPECIAL PROVISIONS CONCERNING TRADEMARKS AND DOMAIN NAMES	 	 	 	 
	 
	 	 	 	 	 	 
	4.1

	 	Additional Representations and Warranties
	 	 	11	 
	4.2

	 	Licenses and Assignments
	 	 	12	 
	4.3

	 	Infringements
	 	 	12	 
	4.4

	 	Preservation of Marks and Domain Names
	 	 	12	 
	4.5

	 	Maintenance of Registration
	 	 	12	 
	4.6

	 	Future Registered Marks and Domain Names
	 	 	12	 
	4.7

	 	Remedies
	 	 	13	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE V	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	SPECIAL PROVISIONS CONCERNING

PATENTS, COPYRIGHTS AND TRADE SECRETS	 	 	 	 
	 
	 	 	 	 	 	 
	5.1

	 	Additional Representations and Warranties
	 	 	13	 
	5.2

	 	Licenses and Assignments
	 	 	13	 
	5.3

	 	Infringements
	 	 	13	 
	5.4

	 	Maintenance of Patents or Copyright
	 	 	14	 
	5.5

	 	Prosecution of Patent or Copyright Applications
	 	 	14	 
	5.6

	 	Other Patents and Copyrights
	 	 	14	 
	5.7

	 	Remedies
	 	 	14	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE VI	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	PROVISIONS CONCERNING ALL COLLATERAL	 	 	 	 
	 
	 	 	 	 	 	 
	6.1

	 	Protection of Collateral Agent’s Security
	 	 	15	 
	6.2

	 	Warehouse Receipts Non-Negotiable
	 	 	15	 
	6.3

	 	Additional Information
	 	 	15	 
	6.4

	 	Further Actions
	 	 	15	 
	6.5

	 	Financing Statements
	 	 	15	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE VII	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	REMEDIES UPON OCCURRENCE OF AN
EVENT OF DEFAULT	 	 	 	 
	 
	 	 	 	 	 	 
	7.1

	 	Remedies; Obtaining the Collateral upon Default
	 	 	16	 
	7.2

	 	Remedies; Disposition of the Collateral
	 	 	17	 
	7.3

	 	Waiver of Claims
	 	 	18	 
	7.4

	 	Application of Proceeds
	 	 	18	 
	7.5

	 	Remedies Cumulative
	 	 	21	 
	7.6

	 	Discontinuance of Proceedings
	 	 	22	 






-ii-









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	 

	 	ARTICLE VIII	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	INDEMNITY	 	 	 	 
	 
	 	 	 	 	 	 
	8.1

	 	Indemnity
	 	 	22	 
	8.2

	 	Indemnity Obligations Secured by Collateral; Survival
	 	 	23	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE IX	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	DEFINITIONS	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	ARTICLE X	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	MISCELLANEOUS	 	 	 	 






	 	 	 	 	 	 	 
	10.1

	 	Notices
	 	 	30	 
	10.2

	 	Waiver; Amendment
	 	 	31	 
	10.3

	 	Obligations Absolute
	 	 	31	 
	10.4

	 	Successors and Assigns
	 	 	31	 
	10.5

	 	Headings Descriptive
	 	 	31	 
	10.6

	 	GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL
	 	 	31	 
	10.7

	 	Assignors’ Duties
	 	 	32	 
	10.8

	 	Termination; Release
	 	 	32	 
	10.9

	 	Counterparts
	 	 	34	 
	10.10

	 	Severability
	 	 	34	 
	10.11

	 	The Collateral Agent and the Other Secured Creditors
	 	 	34	 
	10.12

	 	Additional Assignors
	 	 	34	 
	10.13

	 	Release of Assignors
	 	 	34	 






	 	 	 
	ANNEX A

	 	Schedule of Chief Executive Offices Address(es) of Chief Executive Office
	ANNEX B

	 	Schedule of Inventory and Equipment Locations
	ANNEX C

	 	Schedule of Legal Names, Type of Organization (and Whether a Registered Organization and/or a Transmitting
Utility), Jurisdiction of Organization, Location and Organizational Identification Numbers
	ANNEX D

	 	Schedule of Trade and Fictitious Names
	ANNEX E

	 	Description of Certain Significant Transactions Occurring Within One Year Prior to the Date of the Security
Agreement
	ANNEX F

	 	Schedule of Deposit Accounts
	ANNEX G

	 	Form of Control Agreement Regarding Deposit Accounts
	ANNEX H

	 	Schedule of Commercial Tort Claims
	ANNEX I

	 	Schedule of Marks and Applications; Internet Domain Name Registrations
	ANNEX J

	 	Schedule of Patents
	ANNEX K

	 	Schedule of Copyrights
	ANNEX L

	 	Grant of Security Interest in United States Trademarks
	ANNEX M

	 	Grant of Security Interest in United States Patents
	ANNEX N

	 	Grant of Security Interest in United States Copyrights
	ANNEX O

	 	The Collateral Agent






-iii-









 






SECURITY AGREEMENT



          SECURITY AGREEMENT, dated as of April 12, 2006, as amended on March 2, 2010, made by each of
the undersigned assignors (each, an “Assignor” and, together with any other entity that
becomes an assignor hereunder pursuant to Section 10.12 hereof, the “Assignors”) in favor
of DEUTSCHE BANK AG NEW YORK BRANCH (in its individual capacity, and any successor corporation
thereto by merger, consolidation or otherwise, “DBNY”), as Collateral Agent (together with
any successor Collateral Agent, the “Collateral Agent”), for the benefit of the Secured
Creditors (as defined below). Certain capitalized terms as used herein are defined in Article IX
hereof. Except as otherwise defined herein, all capitalized terms used herein and defined in the
Credit Agreement (as defined below) shall be used herein as therein defined.



W I T N E S S E T H:



          WHEREAS, Dole Food Company, Inc., a Delaware corporation (the “Borrower”), various
financial institutions from time to time party thereto (the “Lenders”) and DBNY, as
Administrative Agent (in such capacity, together with any successor agent, the “Administrative
Agent”; with the Lenders, each Issuing Lender and the Collateral Agent, collectively, the
“Lender Creditors”), have entered into a Credit Agreement, dated as of April 12, 2006, as
amended on March 18, 2009, as amended on October 26, 2009 and as amended on March 2, 2010,
providing for the making of Loans to the Borrower and the issuance of, and participation in,
Letters of Credit for the account of the Borrower, all as contemplated therein (as used herein, the
term “Credit Agreement” means the Credit Agreement described above in this paragraph, as
the same may be amended, modified, extended, renewed, replaced, restated, supplemented or
refinanced from time to time, and including any agreement extending the maturity of, or refinancing
or restructuring (including, but not limited to, the inclusion of additional borrowers or
guarantors thereunder or any increase in the amount borrowed) all or any portion of, the
indebtedness under such agreement or any successor agreement, whether or not with the same agent,
trustee, representative, lenders or holders; provided that, with respect to any agreement
providing for the refinancing or replacement of indebtedness under the Credit Agreement, such
agreement shall only be treated as, or as part of, the Credit Agreement hereunder if (i) either (A)
all obligations under the Credit Agreement being refinanced or replaced shall be paid in full at
the time of such refinancing or replacement, and all commitments and letters of credit issued
pursuant to the refinanced or replaced Credit Agreement shall have terminated in accordance with
their terms or, with respect to certain Letters of Credit, been continued, with the consent of the
respective issuer thereof, under such refinancing or replacement indebtedness or (B) the Required
Lenders shall have consented in writing to the refinancing or replacement indebtedness being
treated as indebtedness pursuant to the Credit Agreement, and (ii) a notice to the effect that the
refinancing or replacement indebtedness shall be treated as issued under the Credit Agreement shall
be delivered by the Borrower to the Collateral Agent);


          WHEREAS, pursuant to the Subsidiaries Guaranty, each Subsidiary Guarantor has jointly and
severally guaranteed to the Secured Creditors the payment when due of all Guaranteed Obligations
(as defined in the Subsidiaries Guaranty);


          WHEREAS, the Intercreditor Agreement governs the relative rights and priorities of the Secured
Creditors and the Term Secured Parties in respect of the TL Priority Collateral and the ABL
Priority Collateral;


          WHEREAS, it is a condition precedent to the making of Loans to the Borrower, and the issuance
of, and participation in, Letters of Credit for the account of the Borrower under the Credit
Agreement that each Assignor shall have executed and delivered to the Collateral Agent this
Agreement; and

 









 






           WHEREAS, each Assignor will obtain benefits from the incurrence of Loans by the Borrower, and
the issuance of, and participation in, Letters of Credit for the account of, the Borrower under the
Credit Agreement, and, accordingly, each Assignor desires to enter into this Agreement in order to
satisfy the condition described in the preceding paragraph;


          NOW, THEREFORE, in consideration of the benefits accruing to each Assignor, the receipt and
sufficiency of which are hereby acknowledged, each Assignor hereby makes the following
representations and warranties to the Collateral Agent for the benefit of the Secured Creditors and
hereby covenants and agrees with the Collateral Agent for the benefit of the Secured Creditors as
follows:



ARTICLE I




SECURITY INTERESTS


          1.1 Grant of Security Interests.


          (a) Subject to the terms of the Intercreditor Agreement with respect to rights and remedies
between the Collateral Agent and the Term Collateral Agent, as security for the prompt and complete
payment and performance when due of all of its Obligations, each Assignor does hereby assign and
transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for
the benefit of the Secured Creditors, a continuing security interest in all of the right, title and
interest of such Assignor in, to and under all of the following personal property and fixtures (and
all rights therein) of such Assignor, or in which or to which such Assignor has any rights, in each
case whether now existing or hereafter from time to time acquired:




     (i) each and every Account;




     (ii) all cash;




     (iii) the Cash Collateral Account and all monies, securities, Instruments and other
investments deposited or required to be deposited in the Cash Collateral Account;




     (iv) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and
all Electronic Chattel Paper);




     (v) all Commercial Tort Claims;




     (vi) all computer programs of such Assignor and all intellectual property rights
therein and all other proprietary information of such Assignor, including but not limited to
Domain Names and Trade Secret Rights;




     (vii) all Contracts, together with all Contract Rights arising thereunder;




     (viii) all Copyrights;




     (ix) all Deposit Accounts and all other demand, deposit, time, savings, cash
management, passbook and similar accounts maintained by such Assignor with any Person and
all monies, securities, Instruments and other investments deposited or required to be
deposited in any of the foregoing;




     (x) all Documents;



-2-









 






     (xi) all Equipment;




     (xii) all General Intangibles;




     (xiii) all Goods (including, without limitation, crops grown, growing or to be grown);




     (xiv) all Instruments;




     (xv) all Inventory;




     (xvi) all Investment Property (other than Investment Property pledged pursuant to the
Pledge Agreement);




     (xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is
evidenced by a writing);




     (xviii) all Marks, together with the registrations and right to all renewals thereof,
and the goodwill of the business of such Assignor symbolized by the Marks;




     (xix) all Patents;




     (xx) all Permits;




     (xxi) all Software and all Software licensing rights, all writings, plans,
specifications and schematics, all engineering drawings, customer lists, goodwill and
licenses, and all recorded data of any kind or nature, regardless of the medium of
recording;




     (xxii) all Farm Products;




     (xxiii) all Supporting Obligations; and




     (xxiv) all Proceeds (other than Excluded Proceeds) and products of any and all of the
foregoing



(all of the above, the “Collateral”).



          (b) The security interest of the Collateral Agent under this Agreement extends to all
Collateral which any Assignor may acquire, or with respect to which any Assignor may obtain rights,
at any time during the term of this Agreement.


          (c) Notwithstanding anything to the contrary contained in clauses (a) and (b) above, the
security interest created by this Agreement shall not extend to, and the term “Collateral” shall
not include, Excluded Collateral owned by any Assignor.


          (d) Notwithstanding anything herein to the contrary, (A) the term “Collateral” shall not
include any governmental license, permit or other approval that, under the terms and conditions of
such governmental license, permit or approval or under applicable law, cannot be subjected to a
Lien in favor of the Secured Creditors without the consent of the relevant governmental authority
which consent has not been obtained; provided, however, that (i) the right to
receive payments of money in respect of such licenses, permits or approvals shall not be excluded
from the “Collateral” or the security interest created hereunder and (ii) such rights and assets
described above shall be excluded from the Collateral only



-3-









 








to the extent and for so long as such license, permit or other agreement continues validly to
prohibit the creation of such security interest, and upon the expiration of such prohibition (by
consent or otherwise), the licenses, permits or other approvals (or interest therein) as to which
such prohibition previously applied shall automatically be included in the Collateral, without
further action on the part of any Assignor, the Collateral Agent or any other Secured Creditor, and
(B) each Assignor agrees to use its commercially reasonable best efforts to obtain and maintain in
full force and effect all consents contemplated pursuant to clause (i) of the preceding proviso.



          (e) Notwithstanding anything to the contrary contained in this Section 1.1 or elsewhere in
this Agreement, each Assignor and the Collateral Agent (on behalf of the Secured Creditors)
acknowledges and agrees that:




     (x) the security interest granted pursuant to this Agreement (including pursuant to
this Section 1.1) to the Collateral Agent for the benefit of the Secured Creditors (i) in
the ABL Priority Collateral, shall be a First Priority Lien and (ii) in the TL Priority
Collateral, shall be a Second Priority Lien, fully junior, subordinated and subject to the
security interest granted to the Term Collateral Agent for the benefit of the Term Secured
Parties in the TL Priority Collateral on the terms and conditions set forth in the Term
Documents and the Intercreditor Agreement and all other rights and benefits afforded
hereunder to the Secured Creditors with respect to the TL Priority Collateral are expressly
subject to the terms and conditions of the Intercreditor Agreement; and




     (y) the Term Secured Parties’ security interests in the Collateral constitute security
interests separate and apart (and of a different class and claim) from the Secured
Creditors’ security interests in the Collateral.


          (f) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE RELATIVE RIGHTS AND REMEDIES OF THE
COLLATERAL AGENT AND THE SECURED CREDITORS HEREUNDER SHALL BE SUBJECT TO AND GOVERNED BY THE TERMS
OF THE INTERCREDITOR AGREEMENT AT ANY TIME THE INTERCREDITOR AGREEMENT IS IN EFFECT. IN THE EVENT
OF ANY INCONSISTENCY BETWEEN THE TERMS HEREOF AND THE TERMS OF THE INTERCREDITOR AGREEMENT, THE
TERMS OF THE INTERCREDITOR AGREEMENT SHALL CONTROL AT ANY TIME THE INTERCREDITOR AGREEMENT IS IN
EFFECT.


          1.2 Power of Attorney. Each Assignor hereby constitutes and appoints the Collateral
Agent its true and lawful attorney, irrevocably, with full power after the occurrence of and during
the continuance of an Event of Default (in the name of such Assignor or otherwise) to act, require,
demand, receive, compound and give acquittance for any and all moneys and claims for moneys due or
to become due to such Assignor under or arising out of the Collateral, to endorse any checks or
other instruments or orders in connection therewith and to file any claims or take any action or
institute any proceedings which the Collateral Agent may deem to be necessary or advisable in the
good faith opinion of the Collateral Agent to protect the interests of the Secured Creditors, which
appointment as attorney is coupled with an interest.



ARTICLE II




GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS


          Each Assignor represents, warrants and covenants, which representations, warranties and
covenants shall survive execution and delivery of this Agreement, as follows:



-4-









 







          2.1 Necessary Filings. All filings, registrations, recordings and other actions
necessary or appropriate to create and preserve the security interest granted by such Assignor to
the Collateral Agent hereby in respect of the Collateral have been accomplished and the security
interest granted to the Collateral Agent pursuant to this Agreement in and to the Collateral
creates a valid and, together with all such filings, registrations, recordings and other actions, a
perfected security interest therein prior to the rights of all other Persons therein and subject to
no other Liens (other than Permitted Liens) and is entitled to all the rights, priorities and
benefits afforded by the Uniform Commercial Code or other relevant law as enacted in any relevant
jurisdiction to perfected security interests, in each case to the extent that the Collateral
consists of the type of property in which a security interest may be perfected by possession or
control (within the meaning of the UCC as in effect on the Effective Date in the State of New
York), by filing a financing statement under the Uniform Commercial Code as enacted in any relevant
jurisdiction or by a filing of a Grant of Security Interest in the respective form attached hereto
in the United States Patent and Trademark Office or in the United States Copyright Office.


          2.2 No Liens. Such Assignor is, and as to all Collateral acquired by it from time to
time after the Effective Date such Assignor will be, the owner of all Collateral free from any
Lien, security interest, encumbrance or other right, title or interest of any Person (other than
Permitted Liens), and such Assignor shall defend the Collateral against all claims and demands of
all Persons at any time claiming the same or any interest therein adverse to the interests of the
Collateral Agent in any material respect.


          2.3 Other Financing Statements. As of the Effective Date, there is no financing
statement (or similar statement or instrument of registration under the law of any jurisdiction)
covering or purporting to cover any interest of any kind in the Collateral (other than financing
statements filed in respect of Permitted Liens), and so long as the Termination Date has not
occurred, such Assignor will not execute or authorize to be filed in any public office any
financing statement (or similar statement or instrument of registration under the law of any
jurisdiction) or statements relating to the Collateral, except financing statements filed or to be
filed in respect of and covering the security interests granted hereby by such Assignor or in
connection with Permitted Liens.


          2.4 Chief Executive Office; Record Locations. The chief executive office of such
Assignor is, on the Effective Date, located at the address indicated on Annex A hereto for such
Assignor. During the period of the four calendar months preceding the date of this Agreement, the
chief executive office of such Assignor has not been located at any address other than that
indicated on Annex A in accordance with the immediately preceding sentence, in each case unless
each such other address is also indicated on Annex A hereto for such Assignor.


          2.5 Location of Inventory and Included Equipment. All Inventory and Included
Equipment held on the Effective Date, or held at any time during the four calendar months prior to
the Effective Date, by each Assignor is located at one of the locations shown on Annex B hereto for
such Assignor.


          2.6 Legal Names; Type of Organization (and Whether a Registered Organization and/or a
Transmitting Utility); Jurisdiction of Organization; Location; Organizational Identification
Numbers; Changes Thereto; Etc. On the Effective Date, the exact legal name of each Assignor,
the type of organization of such Assignor, whether or not such Assignor is a Registered
Organization, the jurisdiction of organization of such Assignor, such Assignor’s Location, the
organizational identification number (if any) of such Assignor, and whether or not such Assignor is
a Transmitting Utility, is listed on Annex C hereto for such Assignor. Such Assignor shall not
change its legal name, its type of organization, its status as a Registered Organization (in the
case of a Registered Organization), its status as a Transmitting Utility or as a Person which is
not a Transmitting Utility, as the case may be, its jurisdiction of



-5-









 








organization, its Location, or its organizational identification number (if any) from that used on
Annex C hereto, except that any such changes shall be permitted (so long as not in violation of the
applicable requirements of the Credit Documents and so long as same do not involve (x) a Registered
Organization ceasing to constitute same or (y) such Assignor changing its jurisdiction of
organization or Location from the United States or a State thereof to a jurisdiction of
organization or Location, as the case may be, outside the United States or a State thereof) if (i)
it shall have given to the Collateral Agent not less than 10 days’ prior written notice of each
change to the information listed on Annex C (as adjusted for any subsequent changes thereto
previously made in accordance with this sentence), together with a supplement to Annex C which
shall correct all information contained therein for such Assignor, and (ii) in connection with the
respective such change or changes, it shall have taken all action reasonably requested by the
Collateral Agent to maintain the security interests of the Collateral Agent in the Collateral
intended to be granted hereby at all times fully perfected and in full force and effect. In
addition, to the extent that such Assignor does not have an organizational identification number on
the Effective Date and later obtains one, such Assignor shall promptly thereafter notify the
Collateral Agent of such organizational identification number and shall take all actions reasonably
satisfactory to the Collateral Agent to the extent necessary to maintain the security interest of
the Collateral Agent in the Collateral intended to be granted hereby fully perfected and in full
force and effect.



          2.7 Trade Names; Etc. Such Assignor does not have or operate in any jurisdiction
under, or in the five years preceding the Effective Date has not had or has not operated in any
jurisdiction under, any material trade names, fictitious names or other names except its legal name
as specified in Annex C and such other trade or fictitious names as are listed on Annex D hereto
for such Assignor. Such Assignor shall not assume or operate in any jurisdiction under any
material new trade, fictitious or other name until (i) it shall have given to the Collateral Agent
not less than 10 days’ written notice of its intention so to do, clearly describing such new name
and the jurisdictions in which such new name will be used and providing such other information in
connection therewith as the Collateral Agent may reasonably request and (ii) with respect to such
new name, it shall have taken all action reasonably requested by the Collateral Agent to maintain
the security interest of the Collateral Agent in the Collateral intended to be granted hereby at
all times fully perfected and in full force and effect.


          2.8 Certain Significant Transactions. During the one year period preceding the
Effective Date, no Person shall have merged or consolidated with or into any Assignor, and no
Person shall have liquidated into, or transferred all or substantially all of its assets to, any
Assignor, in each case except as described in Annex E hereto. With respect to any transactions so
described in Annex E hereto, the respective Assignor shall have furnished such information with
respect to the Person (and the assets of the Person and locations thereof) which merged with or
into or consolidated with such Assignor, or was liquidated into or transferred all or substantially
all of its assets to such Assignor, and shall have furnished to the Collateral Agent such UCC lien
searches as may have been requested with respect to such Person and its assets, to establish that
no security interest (excluding Permitted Liens) continues perfected on the Effective Date with
respect to any Person described above (or the assets transferred to the respective Assignor by such
Person), including without limitation pursuant to Section 9-316(a)(3) of the UCC.


          2.9 Non-UCC Property. If the aggregate fair market value (as determined by the
Assignors in good faith) of all property of the types described in clauses (1), (2) and (3) of
Section 9-311(a) of the UCC at any time owned by all Assignors exceeds $15,000,000, the Assignors
shall provide prompt written notice thereof to the Collateral Agent and, upon the request of the
Collateral Agent, the Assignors shall promptly (and in any event within 30 days) take such actions
(at their own cost and expense) as may be required under the respective United States, State or
other laws referenced in Section 9-311 (a) of the UCC to perfect the security interests granted
herein in any Collateral where the filing of a financing state—



-6-









 








ment does not perfect the security interest in such property in accordance with the provisions
of Section 9-311(a) of the UCC.



          2.10 As-Extracted Collateral; Timber-to-be-Cut. On the Effective Date, such Assignor
does not own, or expect to acquire, any property which constitutes, or would constitute,
As-Extracted Collateral or Timber-to-Be-Cut. If at any time after the date of this Agreement, such
Assignor owns, acquires or obtains rights to any As-Extracted Collateral or Timber-to-Be-Cut, such
Assignor shall furnish the Collateral Agent with prompt written notice thereof (which notice shall
describe in reasonable detail or the As-Extracted Collateral and/or Timber-to-Be-Cut and the
locations thereof) and shall take all actions as may be deemed reasonably necessary or desirable by
the Collateral Agent to perfect the security interest of the Collateral Agent therein.


          2.11 Collateral in the Possession of a Bailee. Subject to the provisions of the
Intercreditor Agreement, if a Specified Default or an Event of Default shall occur and if any
Inventory or other Goods are at any time in the possession of a bailee, such Assignor shall
promptly notify the Collateral Agent thereof and, if requested by the Collateral Agent, shall use
its reasonable best efforts to promptly obtain an acknowledgment from such bailee, in form and
substance reasonably satisfactory to the Collateral Agent, that the bailee holds such Collateral
for the benefit of the Collateral Agent and shall act upon the instructions of the Collateral
Agent, without the further consent of such Assignor. The Collateral Agent agrees with such
Assignor that the Collateral Agent shall not give any such instructions unless an Event of Default
has occurred and is continuing or would occur after taking into account any action by the
respective Assignor with respect to any such bailee.


          2.12 Recourse. This Agreement is made with full recourse to each Assignor and
pursuant to and upon all the warranties, representations, covenants and agreements on the part of
such Assignor contained herein and in the other Secured Debt Agreements and otherwise in writing in
connection herewith or therewith.



ARTICLE III




SPECIAL PROVISIONS CONCERNING INCLUDED ACCOUNTS; INCLUDED

CONTRACT RIGHTS; INCLUDED INSTRUMENTS; CHATTEL PAPER AND CERTAIN

OTHER COLLATERAL


          3.1 Additional Representations and Warranties. As of the time when each of its
Included Accounts arises, each Assignor shall be deemed to have represented and warranted that each
such Included Account, and all records, papers and documents relating thereto (if any) are genuine
and what they purport to be, and that all papers and documents (if any) relating thereto (i) will,
to the knowledge of such Assignor, represent the genuine, legal, valid and binding obligation of
the account debtor evidencing indebtedness unpaid and owed by the respective account debtor arising
out of the performance of labor or services or the sale or lease and delivery of the merchandise
listed therein, or both, (ii) will be the only original writings evidencing and embodying such
obligation of the account debtor named therein (other than copies created for general accounting
purposes), (iii) will, to the knowledge of such Assignor, evidence true and valid obligations,
enforceable in accordance with their respective terms, and (iv) will be in compliance and will
conform in all material respects with all applicable federal, state and local laws and applicable
laws of any relevant foreign jurisdiction.


          3.2 Maintenance of Records. Each Assignor will keep and maintain at its own cost and
expense accurate records of its Included Accounts and Included Contracts, including, but not
limited to, originals of all documentation (including each Included Contract) with respect thereto,
records of all payments received, all credits granted thereon, all merchandise returned and all
other dealings therewith,



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and such Assignor will make the same available on such Assignor’s premises to the Collateral
Agent for inspection, at such Assignor’s own cost and expense, at any and all reasonable times upon
prior notice to such Assignor and otherwise in accordance with the Credit Agreement. Upon the
occurrence and during the continuance of an Event of Default and at the request of the Collateral
Agent, such Assignor shall, at its own cost and expense, deliver all tangible evidence of its
Included Accounts and Included Contract Rights (including, without limitation, all documents
evidencing the Included Accounts and all Included Contracts) and such books and records to the
Collateral Agent or to its representatives (copies of which evidence and books and records may be
retained by such Assignor). Upon the occurrence and during the continuance of an Event of Default
and if the Collateral Agent so directs, such Assignor shall legend, in form and manner satisfactory
to the Collateral Agent, the Included Accounts and the Included Contracts, as well as books,
records and documents (if any) of such Assignor evidencing or pertaining to such Included Accounts
and Included Contracts with an appropriate reference to the fact that such Included Accounts and
Included Contracts have been assigned to the Collateral Agent and that the Collateral Agent has a
security interest therein.



          3.3 Direction to Account Debtors; Contracting Parties; Etc. Upon the occurrence and
during the continuance of an Event of Default, if the Collateral Agent so directs, subject to the
provisions of the Intercreditor Agreement, any Assignor, such Assignor agrees (x) to cause all
payments on account of the Included Accounts and Included Contracts to be made directly to the Cash
Collateral Account, (y) that the Collateral Agent may, at its option, directly notify the obligors
with respect to any Included Accounts and/or under any Included Contracts to make payments with
respect thereto as provided in the preceding clause (x), and (z) that the Collateral Agent may
enforce collection of any such Included Accounts and Included Contracts and may adjust, settle or
compromise the amount of payment thereof, in the same manner and to the same extent as such
Assignor. Without notice to or assent by any Assignor, the Collateral Agent may, upon the
occurrence and during the continuance of an Event of Default, subject to the provisions of the
Intercreditor Agreement, apply any or all amounts then in, or thereafter deposited in, the Cash
Collateral Account toward the payment of the Obligations in the manner provided in Section 7.4 of
this Agreement. The reasonable costs and expenses of collection (including reasonable attorneys’
fees), whether incurred by an Assignor or the Collateral Agent, shall be borne by the relevant
Assignor. The Collateral Agent shall deliver a copy of each notice referred to in the preceding
clause (y) to the relevant Assignor, provided that (x) the failure by the Collateral Agent
to so notify such Assignor shall not affect the effectiveness of such notice or the other rights of
the Collateral Agent created by this Section 3.3 and (y) no such notice shall be required if an
Event of Default of the type described in Section 11.05 of the Credit Agreement has occurred and is
continuing.


          3.4 Modification of Terms; Etc. Except in accordance with such Assignor’s ordinary
course of business and consistent with reasonable business judgment or as permitted by Section 3.5,
no Assignor shall rescind or cancel any indebtedness evidenced by any Included Account or under any
Included Contract, or modify any material term thereof or make any material adjustment with respect
thereto, or extend or renew the same, or compromise or settle any material dispute, claim, suit or
legal proceeding relating thereto, or sell any Included Account or Included Contract, or interest
therein, without the prior written consent of the Collateral Agent. No Assignor will do anything
to impair the security interests of the Collateral Agent in the Included Accounts or Included
Contracts.


          3.5 Collection. Each Assignor shall endeavor in accordance with reasonable business
practices to cause to be collected from the account debtor named in each of its Included Accounts
or obligor under any Included Contract, as and when due (including, without limitation, amounts
which are delinquent, such amounts to be collected in accordance with generally accepted lawful
collection procedures) any and all amounts owing under or on account of such Included Account or
Included Contract, and apply forthwith upon receipt thereof all such amounts as are so collected to
the outstanding balance of



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such Included Account or under such Included Contract. Except as otherwise directed by the
Collateral Agent after the occurrence and during the continuation of an Event of Default, any
Assignor may allow in the ordinary course of business as adjustments to amounts owing under its
Included Accounts and Included Contracts (i) an extension or renewal of the time or times of
payment, or settlement for less than the total unpaid balance, which such Assignor finds
appropriate in accordance with reasonable business judgment and (ii) a refund or credit due as a
result of returned or damaged merchandise or improperly performed services or for other reasons
which such Assignor finds appropriate in accordance with reasonable business judgment. The
reasonable costs and expenses (including, without limitation, reasonable attorneys’ fees) of
collection, whether incurred by an Assignor or the Collateral Agent, shall be borne by the relevant
Assignor.



          3.6 Included Instruments. Subject to the terms of the Intercreditor Agreement, if any
Assignor owns or acquires any Included Instrument in excess of $500,000 constituting Collateral
(other than checks and other payment instruments received and collected in the ordinary course of
business), such Assignor will within 10 Business Days notify the Collateral Agent thereof, and upon
request by the Collateral Agent will promptly deliver such Included Instrument to the Collateral
Agent appropriately endorsed to the order of the Collateral Agent.


          3.7 Assignors Remain Liable Under Included Accounts. Anything herein to the contrary
notwithstanding, the Assignors shall remain liable under each of the Included Accounts to observe
and perform all of the conditions and obligations to be observed and performed by them thereunder,
all in accordance in all material respects with the terms of any agreement giving rise to such
Included Accounts. Neither the Collateral Agent nor any other Secured Creditor shall have any
obligation or liability under any Included Account (or any agreement giving rise thereto) by reason
of or arising out of this Agreement or the receipt by the Collateral Agent or any other Secured
Creditor of any payment relating to such Included Account pursuant hereto, nor shall the Collateral
Agent or any other Secured Creditor be obligated in any manner to perform any of the obligations of
any Assignor under or pursuant to any Included Account (or any agreement giving rise thereto), to
make any payment, to make any inquiry as to the nature or the sufficiency of any payment received
by them or as to the sufficiency of any performance by any party under any Included Account (or any
agreement giving rise thereto), to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been assigned to them or to
which they may be entitled at any time or times.


          3.8 Assignors Remain Liable Under Included Contracts. Anything herein to the contrary
notwithstanding, the Assignors shall remain liable under each of the Included Contracts to observe
and perform all of the conditions and obligations to be observed and performed by them thereunder,
all in accordance in all material respects with and pursuant to the terms and provisions of each
Included Contract. Neither the Collateral Agent nor any other Secured Creditor shall have any
obligation or liability under any Included Contract by reason of or arising out of this Agreement
or the receipt by the Collateral Agent or any other Secured Creditor of any payment relating to
such Included Contract pursuant hereto, nor shall the Collateral Agent or any other Secured
Creditor be obligated in any manner to perform any of the obligations of any Assignor under or
pursuant to any Included Contract, to make any payment, to make any inquiry as to the nature or the
sufficiency of any performance by any party under any Included Contract, to present or file any
claim, to take any action to enforce any performance or to collect the payment of any amounts which
may have been assigned to them or to which they may be entitled at any time or times.



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          3.9 Deposit Accounts; Etc.


          (a) No Assignor maintains, or at any time after the date of this Agreement shall establish or
maintain, any demand, time, savings, passbook or similar account, except for such accounts
maintained with a bank (as defined in Section 9-102 of the UCC) whose jurisdiction (determined in
accordance with Section 9-304 of the UCC) is within a State of the United States. Annex F hereto
accurately sets forth, as of the Effective Date, for each Assignor, each Deposit Account maintained
by such Assignor (including a description thereof and the respective account number), the name of
the respective bank with which such Deposit Account is maintained, and the jurisdiction of the
respective bank with respect to such Deposit Account and (other than (i) the Cash Collateral
Account or any other Deposit Account maintained with the Collateral Agent, (ii) Deposit Accounts
with an aggregate monthly balance of less than $500,000, provided that, with respect to
this clause (ii) only, the aggregate amount in all such Deposit Accounts excluded pursuant to this
clause (ii) does not exceed $5,000,000 at any time, (iii) deposit accounts specially and
exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for
the benefit of the Assignors’ salaried employees, (iv) such other accounts used solely for
disbursement purposes and (v) Deposit Accounts which constitute ABL Priority Collateral) for each
such Deposit Account, the respective Assignor shall subject to the provisions of the Intercreditor
Agreement and Section 3.14 hereof, cause the bank with which the Deposit Account is maintained to
execute and deliver to the Collateral Agent, within 90 days after the date of this Agreement or, if
later, at the time of the establishment of the respective Deposit Account, a “control agreement” in
the form of Annex G hereto (appropriately completed), with such changes thereto as may be
acceptable to the Collateral Agent. If any bank with which a Deposit Account is maintained refuses
to, or does not, enter into such a “control agreement,” then the respective Assignor shall promptly
(and in any event within 90 days after the Effective Date or, if later, 30 days after the
establishment of such account) close the respective Deposit Account and transfer all balances
therein to the Cash Collateral Account or another Deposit Account meeting the requirements of this
Section 3.9. If any bank with which a Deposit Account is maintained refuses to subordinate all its
claims with respect to such Deposit Account to the Collateral Agent’s security interest therein on
terms reasonably satisfactory to the Collateral Agent, then the Collateral Agent, at its option,
may (x) require that such Deposit Account be terminated in accordance with the immediately
preceding sentence or (y) agree to a “control agreement” without such subordination,
provided that in such event the Collateral Agent may at any time, at its option,
subsequently require that such Deposit Account be terminated (within 90 days after notice from the
Collateral Agent) in accordance with the requirements of the immediately preceding sentence.


          (b) After the date of this Agreement, no Assignor shall establish any new demand, time,
savings, passbook or similar account, except for Deposit Accounts established and maintained with
banks and meeting the requirements of preceding clause (a). At the time any such Deposit Account
is established, the appropriate “control agreement” shall be entered into in accordance with the
requirements of preceding clause (a) and the respective Assignor shall furnish to the Collateral
Agent a supplement to Annex F hereto containing the relevant information with respect to the
respective Deposit Account and the bank with which same is established.


          3.10 Letter-of-Credit Rights. If any Assignor is at anytime a beneficiary under a
letter of credit with a stated amount of $2,000,000 or more, such Assignor shall promptly notify
the Collateral Agent thereof and, at the request of the Collateral Agent, such Assignor shall,
pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, use
its reasonable best efforts to (i) arrange for the issuer and any confirmer of such letter of
credit to consent to an assignment to the Collateral Agent of the proceeds of any drawing under
such letter of credit or (ii) arrange for the Collateral Agent, subject to the provisions of the
Intercreditor Agreement, to become the transferee beneficiary of such letter of credit, with the
Collateral Agent agreeing, in each case, that the proceeds of any drawing



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under the letter of credit are to be applied as provided in this Agreement and the
Intercreditor Agreement after the occurrence and during the continuance of an Event of Default.



          3.11 Commercial Tort Claims. All Commercial Tort Claims of each Assignor in existence
on the date of this Agreement are described in Annex H hereto. If any Assignor shall at any time
after the date of this Agreement acquire a Commercial Tort Claim in an amount (taking the greater
of the aggregate claimed damages thereunder or the reasonably estimated value thereof) of
$2,000,000 or more, such Assignor shall promptly notify the Collateral Agent thereof in a writing
signed by such Assignor and describing the details thereof and shall grant to the Collateral Agent
in such writing a security interest therein and in the proceeds thereof, all upon the terms of this
Agreement and the Intercreditor Agreement, with such writing to be in form and substance reasonably
satisfactory to the Collateral Agent.


          3.12 Chattel Paper. Upon the reasonable request of the Collateral Agent made at any
time or from time to time, each Assignor shall promptly furnish to the Collateral Agent a list of
all Electronic Chattel Paper held or owned by such Assignor. Furthermore, if reasonably requested
by the Collateral Agent, each Assignor shall promptly take all actions which are reasonably
practicable so that the Collateral Agent, subject to the provisions of the Intercreditor Agreement,
has “control” of all Electronic Chattel Paper in accordance with the requirements of Section 9-105
of the UCC. Each Assignor will promptly (and in any event within 10 days) following any reasonable
request by the Collateral Agent, subject to the provisions of the Intercreditor Agreement, deliver
all of its Tangible Chattel Paper to the Collateral Agent.


          3.13 Further Actions. Each Assignor will, at its own expense, make, execute, endorse,
acknowledge, file and/or deliver to the Collateral Agent from time to time such vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements,
certificates, reports and other assurances or instruments and take such further steps, including
any and all actions as may be necessary or required under the Federal Assignment of Claims Act,
relating to its Included Accounts, Included Contracts, Included Instruments and other property or
rights covered by the security interest hereby granted, as the Collateral Agent may reasonably
require.


          3.14 Overriding Provisions with respect to TL Priority Collateral. Notwithstanding
anything to the contrary contained above in this Article III, or elsewhere in this Agreement or any
other Security Document, to the extent the provisions of this Agreement (or any other Security
Documents) require the delivery of, or control over, TL Priority Collateral to be granted to the
Collateral Agent at any time prior to the TL Credit Document Obligations Termination Date, then
delivery of such TL Priority Collateral (or control with respect thereto) shall instead be granted
to the Term Collateral Agent, to be held in accordance with the Term Documents and the
Intercreditor Agreement. Furthermore, at all times prior to the TL Credit Document Obligations
Termination Date, the Collateral Agent is authorized by the parties hereto to effect transfers of
TL Priority Collateral at any time in its possession (and any “control” or similar agreements with
respect to TL Priority Collateral) to the Term Collateral Agent.



ARTICLE IV




SPECIAL PROVISIONS CONCERNING TRADEMARKS AND DOMAIN NAMES


          4.1 Additional Representations and Warranties. Each Assignor represents and warrants
that, on the Effective Date, it is the true and lawful owner of or otherwise has the right to use
the registered Marks and Domain Names listed in Annex I hereto for such Assignor and that said
listed Marks and Domain Names include all United States marks and applications for United States
marks registered in the United States Patent and Trademark Office and all Domain Names that such
Assignor owns or uses in connection with its business as of the Effective Date. Each Assignor
represents and warrants that it owns,



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is licensed to use or otherwise has the right to use, all material Marks and Domain Names that
it uses. Each Assignor further warrants that no Senior Officer of such Assignor has knowledge of
any third party claim received by it that any aspect of such Assignor’s present or contemplated
business operations infringes or will infringe any trademark, service mark or trade name of any
other Person other than as could not, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Each Assignor represents and warrants that it is the
true and lawful owner of or otherwise has the right to use all U.S. trademark registrations and
applications and Domain Name registrations listed in Annex I hereto and that said registrations are
valid, subsisting, have not been canceled and that such Assignor is not aware of any third-party
claim that any of said registrations is invalid or unenforceable, and is not aware that there is
any reason that any of said registrations is invalid or unenforceable, and is not aware that there
is any reason that any of said applications will not mature into registrations. Each Assignor
hereby grants to the Collateral Agent an absolute power of attorney to sign, upon the occurrence
and during the continuance of an Event of Default, any document which may be required by the United
States Patent and Trademark Office or similar registrar in order to effect an absolute assignment
of all right, title and interest in each Mark and/or Domain Name, and record the same.



          4.2 Licenses and Assignments. Except as otherwise permitted by the Secured Debt
Agreements, each Assignor hereby agrees not to divest itself of any right under any Mark or Domain
Name absent prior written approval of the Collateral Agent.


          4.3 Infringements. Each Assignor agrees, promptly upon a Senior Officer learning
thereof, to notify the Collateral Agent in writing of the name and address of, and to furnish such
pertinent information that may be available with respect to, any party who such Assignor believes
is, or may be, infringing or diluting or otherwise violating any of such Assignor’s rights in and
to any Mark or Domain Name in any manner that could reasonably be expected to have a Material
Adverse Effect, or with respect to any party claiming that such Assignor’s use of any Mark or
Domain Name material to such Assignor’s business violates in any material respect any property
right of that party. Each Assignor further agrees to prosecute diligently in accordance with
reasonable business practices any Person infringing any Mark or Domain Name in any manner that
could reasonably be expected to have a Material Adverse Effect.


          4.4 Preservation of Marks and Domain Names. Each Assignor agrees to use its Marks and
Domain Names which are material to such Assignor’s business in interstate commerce during the time
in which this Agreement is in effect and to take all such other actions as are reasonably necessary
to preserve such Marks as trademarks or service marks under the laws of the United States (other
than any such Marks which are no longer used or useful in its business or operations).


          4.5 Maintenance of Registration. Each Assignor shall, at its own expense, diligently
process all documents reasonably required to maintain all Mark and/or Domain Name registrations,
including but not limited to affidavits of use and applications for renewals of registration in the
United States Patent and Trademark Office for all of its material registered Marks, and shall pay
all fees and disbursements in connection therewith and shall not abandon any such filing of
affidavit of use or any such application of renewal prior to the exhaustion of all administrative
and judicial remedies without prior written consent of the Collateral Agent (other than with
respect to registrations and applications deemed by such Assignor in its reasonable business
judgment to be no longer prudent to pursue).


          4.6 Future Registered Marks and Domain Names. If any Mark registration is issued
hereafter to any Assignor as a result of any application now or hereafter pending before the United
States Patent and Trademark Office or any Domain Name is registered by Assignor, within 30 days of
receipt of such certificate or similar indicia of ownership, such Assignor shall deliver to the
Collateral Agent a copy of such registration certificate or similar indicia of ownership, and a
grant of a security interest in such



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Mark and/or Domain Name, to the Collateral Agent and at the expense of such Assignor,
confirming the grant of a security interest in such Mark and/or Domain Name to the Collateral Agent
hereunder, the form of such security to be substantially in the form of Annex L hereto or in such
other form as may be reasonably satisfactory to the Collateral Agent.



          4.7 Remedies. Subject to the terms of the Intercreditor Agreement, if an Event of
Default shall occur and be continuing, the Collateral Agent may, by written notice to the relevant
Assignor, take any or all of the following actions: (i) declare the entire right, title and
interest of such Assignor in and to each of the Marks and Domain Names, together with all trademark
rights and rights of protection to the same, vested in the Collateral Agent for the benefit of the
Secured Creditors, in which event such rights, title and interest shall immediately vest, in the
Collateral Agent for the benefit of the Secured Creditors, and the Collateral Agent shall be
entitled to exercise the power of attorney referred to in Section 4.1 hereof to execute, cause to
be acknowledged and notarized and record said absolute assignment with the applicable agency or
registrar; (ii) take and use or sell the Marks or Domain Names and the goodwill of such Assignor’s
business symbolized by the Marks or Domain Names and the right to carry on the business and use the
assets of such Assignor in connection with which the Marks or Domain Names have been used; and
(iii) direct such Assignor to refrain, in which event such Assignor shall refrain, from using the
Marks or Domain Names in any manner whatsoever, directly or indirectly, and such Assignor shall
execute such further documents that the Collateral Agent may reasonably request to further confirm
this and to transfer ownership of the Marks and Domain Names and registrations and any pending
trademark applications in the United States Patent and Trademark Office or applicable Domain Name
registrar to the Collateral Agent.



ARTICLE V




SPECIAL PROVISIONS CONCERNING

PATENTS, COPYRIGHTS AND TRADE SECRETS


          5.1 Additional Representations and Warranties. Each Assignor represents and warrants
that it is the true and lawful owner of all rights in (i) all Trade Secret Rights, (ii) the Patents
listed in Annex J hereto for such Assignor and that said Patents include all the United States
patents and applications for United States patents that such Assignor owns as of the Effective Date
and (iii) the Copyrights listed in Annex K hereto for such Assignor and that said Copyrights
include all the United States copyrights registered with the United States Copyright Office and
applications to United States copyrights that such Assignor owns as of the Effective Date. Each
Assignor further warrants that no Senior Officer of such Assignor has knowledge of any third party
claim that any aspect of such Assignor’s present or contemplated business operations infringes or
will infringe any patent of any other Person or such Assignor has misappropriated any trade secret
or proprietary information which, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. Each Assignor hereby grants to the Collateral Agent an
absolute power of attorney to sign, upon the occurrence and during the continuance of any Event of
Default, any document which may be required by the United States Patent and Trademark Office or the
United States Copyright Office in order to effect an absolute assignment of all right, title and
interest in each Patent or Copyright, and to record the same.


          5.2 Licenses and Assignments. Except as otherwise permitted by the Secured Debt
Agreements, each Assignor hereby agrees not to divest itself of any right under any Patent or
Copyright absent prior written approval of the Collateral Agent.


          5.3 Infringements. Each Assignor agrees, promptly upon a Senior Officer of such
Assignor learning thereof, to furnish the Collateral Agent in writing with all pertinent
information avail-



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able to such Assignor with respect to any infringement, contributing infringement or active
inducement to infringe or other violation of such Assignor’s rights in any Patent or Copyright or
to any claim that the practice of any Patent or use of any Copyright violates any property right of
a third party, or with respect to any misappropriation of any Trade Secret Right or any claim that
practice of any Trade Secret Right violates any property right of a third party, in each case, in
any manner which, either individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Each Assignor further agrees, absent direction of the Collateral Agent to
the contrary, to diligently prosecute, in accordance with its reasonable business judgment, any
Person infringing any Patent or Copyright or any Person misappropriating any Trade Secret Right, in
each case to the extent that such infringement or misappropriation, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.



          5.4 Maintenance of Patents or Copyright. At its own expense, each Assignor shall make
timely payment of all post-issuance fees required to maintain in force its rights under each Patent
or Copyright, absent prior written consent of the Collateral Agent (other than any such Patents or
Copyrights which are no longer used or are deemed by such Assignor in its reasonable business
judgment to no longer be useful in its business or operations).


          5.5 Prosecution of Patent or Copyright Applications. At its own expense, each
Assignor shall diligently prosecute all material applications for (i) United States Patents listed
in Annex J hereto and (ii) Copyrights listed on Annex K hereto, in each case for such Assignor and
shall not abandon any such application prior to exhaustion of all administrative and judicial
remedies (other than applications that are deemed by such Assignor in its reasonable business
judgment to no longer be necessary in the conduct of the Assignor’s business), absent written
consent of the Collateral Agent.


          5.6 Other Patents and Copyrights. Within 30 days of the acquisition or issuance of a
United States Patent, registration of a Copyright, or acquisition of a registered Copyright, or of
filing of an application for a United States Patent or Copyright, the relevant Assignor shall
deliver to the Collateral Agent a copy of said Copyright or Patent, or certificate or registration
of, or application therefor, as the case may be, with a grant of a security interest as to such
Patent or Copyright, as the case may be, to the Collateral Agent and at the expense of such
Assignor, confirming the grant of a security interest, the form of such grant of a security
interest to be substantially in the form of Annex M or Annex N hereto, as appropriate, or in such
other form as may be reasonably satisfactory to the Collateral Agent.


          5.7 Remedies. If an Event of Default shall occur and be continuing, the Collateral
Agent may, subject to the provisions of the Intercreditor Agreement, by written notice to the
relevant Assignor, take any or all of the following actions: (i) declare the entire right, title,
and interest of such Assignor in each of the Patents and Copyrights vested in the Collateral Agent
for the benefit of the Secured Creditors, in which event such right, title, and interest shall
immediately vest in the Collateral Agent for the benefit of the Secured Creditors, in which case
the Collateral Agent shall be entitled to exercise the power of attorney referred to in Section 5.1
hereof to execute, cause to be acknowledged and notarized and to record said absolute assignment
with the applicable agency; (ii) take and practice or sell the Patents and Copyrights; and (iii)
direct such Assignor to refrain, in which event such Assignor shall refrain, from practicing the
Patents and using the Copyrights directly or indirectly, and such Assignor shall execute such
further documents as the Collateral Agent may reasonably request father to confirm this and to
transfer ownership of the Patents and Copyrights to the Collateral Agent for the benefit of the
Secured Creditors.



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ARTICLE VI




PROVISIONS CONCERNING ALL COLLATERAL


          6.1 Protection of Collateral Agent’s Security. Except as otherwise permitted by the
Secured Debt Agreements and the Intercreditor Agreement, each Assignor will do nothing to impair
the rights of the Collateral Agent in the Collateral. Each Assignor will at all times maintain
insurance, at such Assignor’s own expense to the extent and in the manner provided in the Secured
Debt Agreements. Except to the extent otherwise permitted to be retained by such Assignor or
applied by such Assignor pursuant to the terms of the Secured Debt Agreements, the Collateral Agent
shall, subject to the provisions of the Intercreditor Agreement, at the time any proceeds of such
insurance are distributed to the Secured Creditors, apply such proceeds in accordance with Section
7.4 hereof. Each Assignor assumes all liability and responsibility in connection with the
Collateral acquired by it and the liability of such Assignor to pay the Obligations shall in no way
be affected or diminished by reason of the fact that such Collateral may be lost, destroyed,
stolen, damaged or for any reason whatsoever unavailable to such Assignor (except to the extent
resulting from the Collateral Agent’s gross negligence or willful misconduct).


          6.2 Warehouse Receipts Non-Negotiable. If a Specified Default or an Event of Default
shall occur, each Assignor agrees that if any warehouse receipt or receipt in the nature of a
warehouse receipt is issued with respect to any of its Inventory, such Assignor shall request that
such warehouse receipt or receipt in the nature thereof shall not be “negotiable” (as such term is
used in Section 7-104 of the Uniform Commercial Code as in effect in any relevant jurisdiction or
under other relevant law).


          6.3 Additional Information. Each Assignor will, at its own expense, from time to time
upon the reasonable request of the Collateral Agent, promptly (and in any event within 10 days
after its receipt of the respective request) furnish to the Collateral Agent such information with
respect to the Collateral (including the identity of the Collateral or such components thereof as
may have been requested by the Collateral Agent, the value and location of such Collateral, etc.)
as may be requested by the Collateral Agent. Without limiting the forgoing, each Assignor agrees
that it shall promptly (and in any event within 10 days after its receipt of the respective
request) furnish to the Collateral Agent such updated Annexes hereto as may from time to time be
reasonably requested by the Collateral Agent.


          6.4 Further Actions. Each Assignor will, at its own expense and upon the reasonable
request of the Collateral Agent, make, execute, endorse, acknowledge, file and/or deliver to the
Collateral Agent from time to time such lists, descriptions and designations of its Collateral,
warehouse receipts, receipts in the nature of warehouse receipts, bills of lading, documents of
title, vouchers, invoices, schedules, confirmatory assignments, conveyances, financing statements,
transfer endorsements, certificates, reports and other assurances or instruments and take such
further steps relating to the Collateral and other property or rights covered by the security
interest hereby granted, which the Collateral Agent deems reasonably appropriate or advisable to
perfect, preserve or protect its security interest in the Collateral.


          6.5 Financing Statements. Subject to the terms of the Intercreditor Agreement, each
Assignor agrees to execute and deliver to the Collateral Agent such financing statements, in form
reasonably acceptable to the Collateral Agent, as the Collateral Agent may from time to time
reasonably request or as are reasonably necessary or desirable in the opinion of the Collateral
Agent to establish and maintain a valid, enforceable, perfected security interest in the Collateral
as provided herein and the other rights and security contemplated hereby. Each Assignor will pay
any applicable filing fees, recordation taxes and related expenses relating to its Collateral.
Each Assignor hereby authorizes the Collateral



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Agent to file any such financing statements without the signature of such Assignor where
permitted by law (and such authorization includes describing the Collateral as “all assets” of such
Assignor).




ARTICLE VII




REMEDIES UPON OCCURRENCE OF AN EVENT OF DEFAULT


          7.1 Remedies; Obtaining the Collateral upon Default. Each Assignor agrees that, if
any Event of Default shall have occurred and be continuing, then and in every such case, the
Collateral Agent, in addition to any rights now or hereafter existing under applicable law and
under the other provisions of this Agreement, shall have all rights as a secured creditor under any
UCC, and such additional rights and remedies to which a secured creditor is entitled under the laws
in effect in all relevant jurisdictions and, subject to the provisions of the Intercreditor
Agreement, may:




     (i) personally, or by agents or attorneys, immediately take possession of the
Collateral or any part thereof, from such Assignor or any other Person who then has
possession of any part thereof with or without notice or process of law, and for that
purpose may enter upon such Assignor’s premises where any of the Collateral is located and
remove the same and use in connection with such removal any and all services, supplies, aids
and other facilities of such Assignor;




     (ii) instruct the obligor or obligors on any agreement, instrument or other obligation
(including, without limitation, the Included Accounts and the Included Contracts)
constituting the Collateral to make any payment required by the terms of such agreement,
instrument or other obligation directly to the Collateral Agent and may exercise any and all
remedies of such Assignor in respect of such Collateral;




     (iii) instruct all banks which have entered into a control agreement with the
Collateral Agent to transfer all monies, securities and instruments held by such depositary
bank to the Cash Collateral Account;




     (iv) sell, assign or otherwise liquidate any or all of the Collateral or any part
thereof in accordance with Section 7.2 hereof, or direct such Assignor to sell, assign or
otherwise liquidate any or all of the Collateral or any part thereof, and, in each case,
take possession of the proceeds of any such sale or liquidation;




     (v) take possession of the Collateral or any part thereof, by directing such Assignor
in writing to deliver the same to the Collateral Agent at any reasonable place or places
designated by the Collateral Agent, in which event such Assignor shall at its own expense:




     (x) forthwith cause the same to be moved to the place or places so designated
by the Collateral Agent and there delivered to the Collateral Agent;




     (y) store and keep any Collateral so delivered to the Collateral Agent at such
place or places pending further action by the Collateral Agent as provided in
Section 7.2 hereof; and




     (z) while the Collateral shall be so stored and kept, provide such security and
maintenance services as shall be reasonably necessary to protect the same and to
preserve and maintain it in good condition;



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     (vi) license or sublicense, whether on an exclusive or nonexclusive basis, any Marks,
Domain Names, Patents or Copyrights included in the Collateral for such term and on such
conditions and in such manner as the Collateral Agent shall in its sole judgment determine;




     (vii) apply any monies constituting Collateral or proceeds thereof in accordance with
the provisions of Section 7.4; and




     (viii) take any other action as specified in clauses (1) through (5), inclusive, of
Section 9-607 of the UCC;



it being understood that each Assignor’s obligation so to deliver the Collateral is of the essence
of this Agreement and that, accordingly, upon application to a court of equity having jurisdiction,
the Collateral Agent shall be entitled to a decree requiring specific performance by such Assignor
of said obligation. By accepting the benefits of this Agreement and each other Security Document,
the Secured Creditors expressly acknowledge and agree that this Agreement and each other Security
Document may be enforced only by the action of the Collateral Agent acting upon the instructions of
the Required Secured Creditors and that no other Secured Creditor shall have any right individually
to seek to enforce or to enforce this Agreement or to realize upon the security to be granted
hereby, it being understood and agreed that such rights and remedies may be exercised by the
Collateral Agent for the benefit of the Secured Creditors upon the terms of this Agreement and the
other Security Documents and subject to the terms of the Intercreditor Agreement.



          7.2 Remedies; Disposition of the Collateral. If any Event of Default shall have
occurred and be continuing, then any Collateral repossessed by the Collateral Agent under or
pursuant to Section 7.1 hereof and any other Collateral whether or not so repossessed by the
Collateral Agent, may, subject to the provisions of the Intercreditor Agreement, be sold, assigned,
leased or otherwise disposed of under one or more contracts or as an entirety, and without the
necessity of gathering at the place of sale the property to be sold, and in general in such manner,
at such time or times, at such place or places and on such terms as the Collateral Agent may, in
compliance with any mandatory requirements of applicable law, determine to be commercially
reasonable. Any of such Collateral may be sold, leased or otherwise disposed of, in the condition
in which the same existed when taken by the Collateral Agent or after any overhaul or repair at the
expense of the relevant Assignor which the Collateral Agent shall determine to be commercially
reasonable. Any such sale, lease or other disposition may be effected by means of a public
disposition or private disposition, effected in accordance with the applicable requirements (in
each case if and to the extent applicable) of Sections 9-610 through 9-613 of the UCC and/or such
other mandatory requirements of applicable law as may apply to the respective disposition. The
Collateral Agent may, without notice or publication, adjourn any public or private disposition or
cause the same to be adjourned from time to time by announcement at the time and place fixed for
the disposition, and such disposition may be made at any time or place to which the disposition may
be so adjourned. To the extent permitted by any such requirement of law, the Collateral Agent may
bid for and become the purchaser (and may pay all or any portion of the purchase price by crediting
Obligations against the purchase price) of the Collateral or any item thereof, offered for
disposition in accordance with this Section 7.2 without accountability to the relevant Assignor.
If, under applicable law, the Collateral Agent shall be permitted to make disposition of the
Collateral within a period of time which does not permit the giving of notice to the relevant
Assignor as hereinabove specified, the Collateral Agent need give such Assignor only such notice of
disposition as shall be required by such applicable law. Each Assignor agrees to do or cause to be
done all such other acts and things as may be reasonably necessary to make such disposition or
dispositions of all or any portion of the Collateral valid and binding and in compliance with any
and all applicable laws, regulations, orders, writs, injunctions, decrees or awards of any and all
courts, arbitrators or



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governmental instrumentalities, domestic or foreign, having jurisdiction over any such sale or
sales, all at such Assignor’s expense.



          7.3 Waiver of Claims. Except as otherwise provided in this Agreement, EACH ASSIGNOR
HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION
WITH THE COLLATERAL AGENT’S TAKING POSSESSION OR THE COLLATERAL AGENT’S DISPOSITION OF ANY OF THE
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT
REMEDY OR REMEDIES, and each Assignor hereby further waives, to the extent permitted by law:




     (i) all damages occasioned by such taking of possession or any such disposition except
any damages which are the direct result of the Collateral Agent’s gross negligence or
willful misconduct (as determined by a court of competent jurisdiction in a final and
non-appealable decision);




     (ii) all other requirements as to the time, place and terms of sale or other
requirements with respect to the enforcement of the Collateral Agent’s rights hereunder; and




     (iii) all rights of redemption, appraisement, valuation, stay, extension or moratorium
now or hereafter in force under any applicable law in order to prevent or delay the
enforcement of this Agreement or the absolute sale of the Collateral or any portion thereof,
and each Assignor, for itself and all who may claim under it, insofar as it or they now or
hereafter lawfully may, hereby waives the benefit of all such laws.



Any sale of, or the grant of options to purchase, or any other realization upon, any Collateral
shall operate to divest all right, title, interest, claim and demand, either at law or in equity,
of the relevant Assignor therein and thereto, and shall be a perpetual bar both at law and in
equity against such Assignor and against any and all Persons claiming or attempting to claim the
Collateral so sold, optioned or realized upon, or any part thereof, from, through and under such
Assignor.



          7.4 Application of Proceeds.


          (a) (I) Subject to the terms of the Intercreditor Agreement, all moneys collected by the
Collateral Agent (or, to the extent the Pledge Agreement or any other Security Document requires
proceeds of collateral thereunder, which constitutes ABL Priority Collateral, to be applied in
accordance with the provisions of this Agreement, the Pledgee under the Pledge Agreement or the
collateral agent or mortgagee under such other Security Document) upon any sale or other
disposition of the ABL Priority Collateral, together with all other moneys received by the
Collateral Agent hereunder (or, to the extent the Pledge Agreement or any other Security Document
requires proceeds of collateral thereunder, which constitutes ABL Priority Collateral, to be
applied in accordance with the provisions of this Agreement, the Pledgee under the Pledge Agreement
or the collateral agent or mortgagee under such other Security Document) with respect thereto,
shall be applied as follows:




     (i) first, to the payment of all amounts owing the Collateral Agent of the type
described in clauses (iii), (iv) and (v) of the definition of “Obligations”;




     (ii) second, to the extent proceeds remain after the application pursuant to
preceding clause (i), to the payment of all amounts owing to any Agent of the type described
in clause (vi) of the definition of “Obligations”;



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     (iii) third, to the extent proceeds remain after the application pursuant to
preceding clauses (i) and (ii), an amount equal to the outstanding Primary Obligations
(other than Cash Management Obligations) shall be paid to the Secured Creditors as provided
in Section 7.4(e) hereof, with (x) each Secured Creditor receiving an amount equal to its
outstanding Primary Obligations (other than Cash Management Obligations) or, if the proceeds
are insufficient to pay in full all such Primary Obligations, its Pro Rata Share of the
amount remaining to be distributed, (y) the amount received by any Lender Creditor in
respect of Primary Obligations consisting of Credit Document Obligations pursuant to this
clause (iii) to be applied in satisfaction of the Primary Obligations owing to such Lender
Creditor by the Borrower and by the other Credit Parties;




     (iv) fourth, to the extent proceeds remain after the application pursuant to
preceding clauses (i) through (iii), inclusive, an amount equal to the outstanding Secondary
Obligations (other than Cash Management Obligations) shall be paid to the Secured Creditors
as provided in Section 7.4(e) hereof, with each Secured Creditor receiving an amount equal
to its outstanding Secondary Obligations (other than Cash Management Obligations) or, if the
proceeds are insufficient to pay in full all such Secondary Obligations, its Pro Rata Share
of the amount remaining to be distributed;




     (v) fifth, to the extent proceeds remain after the application pursuant to
preceding clauses (i) through (iv), inclusive, an amount equal to all Primary Obligations
that are Cash Management Obligations owing to any Secured Cash Management Bank shall be paid
to the Secured Cash Management Banks as provided in Section 7.4(e) hereof with each Secured
Cash Management Bank receiving an amount equal to its outstanding Primary Obligations that
are Cash Management Obligations or, if the proceeds are insufficient to pay in full all such
Primary Obligations, its Pro Rata Share of the amount remaining to be distributed;




     (vi) sixth, to the extent proceeds remain after the application pursuant to
preceding clauses (i) through (v), inclusive, an amount equal to all Secondary Obligations
are Cash Management Obligations owing to any Secured Cash Management Bank shall be paid to
the Secured Cash Management Banks as provided in Section 7.4(e) hereof with each Secured
Cash Management Bank receiving an amount equal to its Secondary Obligation are Cash
Management Obligations or, if the proceeds are insufficient to pay in full all such
Secondary Obligations, its Pro Rata Share of the amount remaining to be distributed;




     (vii) seventh, to the extent proceeds remain after the application pursuant to
preceding clauses (i) through (vi), inclusive, if the TL Credit Document Obligations
Termination Date has not theretofore occurred, amounts equal to the Term Obligations shall
be paid to the Term Collateral Agent for application to the Term Obligations in accordance
with sub-clauses third and fourth of Section 5.2(a) of the Intercreditor Agreement; and




     (viii) eighth, to the extent proceeds remain after the application pursuant to
preceding clauses (i) through (vii), inclusive, and following the termination of this
Agreement pursuant to Section 10.8(a) hereof, to the relevant Assignor or to whoever may be
lawfully entitled to receive such surplus.


          (II) Subject to the terms of the Intercreditor Agreement, all moneys collected by the
Collateral Agent (or, to the extent the Pledge Agreement or any other Security Document requires
proceeds of collateral thereunder, which constitutes TL Priority Collateral, to be applied in
accordance with the provisions of this Agreement, the Pledgee under the Pledge Agreement or the
collateral agent or mortgagee under such other Security Document) upon any sale or other
disposition of the TL Priority Collateral, together with all other moneys received by the
Collateral Agent hereunder (or, to the extent the



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Pledge Agreement or any other Security Document requires proceeds of collateral thereunder,
which constitutes TL Priority Collateral, to be applied in accordance with the provisions of this
Agreement, the Pledgee under the Pledge Agreement or the collateral agent or mortgagee under such
other Security Document) with respect thereto, shall be applied as follows:





     (i) first, in accordance with subclauses first and second of Section 5.1(a) of
the Intercreditor Agreement, to the Term Collateral Agent for application to Term
Obligations until same have been repaid in full;




     (ii) second, to the extent proceeds remain after the application pursuant to
preceding clause (i), as otherwise provided in Section 7.4(a)(I).


          (b) For purposes of this Agreement: (x) “Pro Rata Share” shall mean, when calculating
a Secured Creditor’s portion of any distribution or amount, that amount (expressed as a percentage)
equal to a fraction the numerator of which is the then unpaid amount of such Secured Creditor’s
Primary Obligations or Secondary Obligations, as the case may be, of a specified type described in
subclause (iii), (iv), (v) or (vi) of Section 7.4(a), and the denominator of which is the then
outstanding amount of all Primary Obligations or Secondary Obligations, as the case may be; of such
type described in subclause (iii), (iv), (v) or (vi) of Section 7.4(a), (y) “Primary
Obligations” shall mean (i) in the case of the Credit Document Obligations, all principal of,
premium, fees and interest on, all Loans, all reimbursement obligations and Unpaid Drawings with
respect to Letters of Credit, the Stated Amount of all outstanding Letters of Credit and all Fees
and (ii) in the case of the Secured Cash Management Obligations, all principal owed, and interest
on, extension of credit made under any Cash Management Agreement; and (z) “Secondary
Obligations” shall mean all Obligations other than Primary Obligations.


          (c) When payments to Secured Creditors are based upon their respective Pro Rata Shares, the
amounts received by such Secured Creditors hereunder pursuant to subclause (iii), (iv), (v) or (vi)
of Section 7.4(a), shall be applied (for purposes of making determinations under this Section 7.4
only) (i) first, to their Primary Obligations, if any, described in such subclause and (ii)
second, to their Secondary Obligations, if any, described in such subclause. If any
payment to any Secured Creditor of its Pro Rata Share of any distribution pursuant to subclause
(iii), (iv), (v) or (vi) of Section 7.4(a) would result in overpayment to such Secured Creditor,
such excess amount shall instead be distributed in respect of the unpaid Primary Obligations or
Secondary Obligations, as the case may be, of the other Secured Creditors described in such
subclause, with each Secured Creditor whose Primary Obligations or Secondary Obligations, as the
case may be, described in such subclause have not been paid in full to receive an amount equal to
such excess amount multiplied by a fraction the numerator of which is the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of such Secured Creditor described in
such subclause and the denominator of which is the unpaid Primary Obligations or Secondary
Obligations, as the case may be, described in such subclause of all Secured Creditors entitled to
such distribution.


          (d) Each of the Secured Creditors, by its acceptance of the benefits hereof and of the other
Security Documents, agrees and acknowledges that if the Lender Creditors receive a distribution on
account of undrawn amounts with respect to Letters of Credit issued under the Credit Agreement
(which shall only occur after all Unpaid Drawings have been paid in full), such amounts shall be
paid to the Administrative Agent under the Credit Agreement and held by it, for the equal and
ratable benefit of the Lender Creditors,, as cash security for the repayment of Obligations owing
to the Lender Creditors as such. If any amounts are held as cash security pursuant to the
immediately preceding sentence, then upon the termination of all outstanding Letters of Credit
under the Credit Agreement, and after the application of all such cash security to the repayment of
all Obligations owing to the Lender Creditors after giving



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effect to the termination of all such Letters of Credit, if there remains any excess cash,
such excess cash shall be returned by the Administrative Agent to the Collateral Agent for
distribution in accordance with Section 7.4(a) hereof.



          (e) Subject to the terms of the Intercreditor Agreement, all payments required to be made
hereunder shall be made (x) if to the Lender Creditors, to the Administrative Agent for the account
of the Lender Creditors, (y) if to the Term Secured Parties, to the Term Collateral Agent for the
account of the Term Secured Parties and (z) if to the Secured Cash Management Banks, directly to
the Secured Cash Management Banks.


          (f) For purposes of applying payments received in accordance with this Section 7.4, the
Collateral Agent shall be entitled to rely upon the (i) the Administrative Agent and (ii) the
Secured Cash Management Banks for a determination (which the Administrative Agent and the Secured
Cash Management Banks agree (or shall agree) to provide upon request of the Collateral Agent) of
the outstanding Primary Obligations and Secondary Obligations (and Dollar Equivalents thereof) owed
to the Lender Creditors and the Secured Cash Management Banks. Unless it has received written
notice from a Lender Creditor or a Secured Cash Management Bank to the contrary, the Administrative
Agent, in furnishing information pursuant to the preceding sentence, and the Collateral Agent, in
acting hereunder, shall be entitled to assume that no Secondary Obligations are outstanding.
Unless it has written notice from the Borrower to the contrary, the Collateral Agent, in acting
hereunder, shall be entitled to assume that no Cash Management Obligations and no Secured Cash
Management Agreements are in existence.


          (g) It is understood that the Assignors shall remain jointly and severally liable to the
extent of any deficiency between the amount of the proceeds of the Collateral and the aggregate
amount of the Obligations.


          (h) It is understood and agreed by all parties hereto that the Collateral Agent shall have no
liability for any determinations made by it in this Section 7.4 (including, without limitation, as
to whether given Collateral constitutes TL Priority Collateral or ABL Priority Collateral), in each
case except to the extent resulting from the gross negligence or willful misconduct of the
Collateral Agent (as determined by a court of competent jurisdiction in a final and non-appealable
decision). The parties also agree that the Collateral Agent may (but shall not be required to), at
any time and in its sole discretion, and with no liability resulting therefrom, petition a court of
competent jurisdiction regarding any application of Collateral in accordance with the requirements
hereof and of the Intercreditor Agreement, and the Collateral Agent shall be entitled to wait for,
and may conclusively rely on, any such determination.


          7.5 Remedies Cumulative. Subject to the terms of (and to the extent not inconsistent
with) the Intercreditor Agreement, each and every right, power and remedy hereby specifically given
to the Collateral Agent shall be in addition to every other right, power and remedy specifically
given to the Collateral Agent under this Agreement, the other Secured Debt Agreements or now or
hereafter existing at law, in equity or by statute and each and every right, power and remedy
whether specifically herein given or otherwise existing may be exercised from time to time or
simultaneously and as often and in such order as may be deemed expedient by the Collateral Agent.
All such rights, powers and remedies shall be cumulative and the exercise or the beginning of the
exercise of one shall not be deemed a waiver of the right to exercise any other or others. No
delay or omission of the Collateral Agent in the exercise of any such right, power or remedy and no
renewal or extension of any of the Obligations shall impair any such right, power or remedy or
shall be construed to be a waiver of any Default or Event of Default or an acquiescence thereof.
No notice to or demand on any Assignor in any case shall entitle it to any other or further notice
or demand in similar or other circumstances or constitute a waiver of any of the rights of the
Collateral Agent to any other or further action in any circumstances without notice or demand. In
the



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event that the Collateral Agent shall bring any suit to enforce any of its rights hereunder
and shall be entitled to judgment, then in such suit the Collateral Agent may recover reasonable
expenses, including reasonable attorneys’ fees, and the amounts thereof shall be included in such
judgment.



          7.6 Discontinuance of Proceedings. In case the Collateral Agent shall have instituted
any proceeding to enforce any right, power or remedy under this Agreement by foreclosure, sale,
entry or otherwise, and such proceeding shall have been discontinued or abandoned for any reason or
shall have been determined adversely to the Collateral Agent, then and in every such case the
relevant Assignor, the Collateral Agent and each holder of any of the Obligations shall be restored
to their former positions and rights hereunder with respect to the Collateral subject to the
security interest created under this Agreement, and all rights, remedies and powers of the
Collateral Agent shall continue as if no such proceeding had been instituted.



ARTICLE VIII




INDEMNITY


          8.1 Indemnity.


          (a) Each Assignor jointly and severally agrees to indemnify, reimburse and hold the Collateral
Agent, each other Secured Creditor and their respective successors, assigns, employees, affiliates
and agents (hereinafter in this Section 8.1 referred to individually as “Indemnitee,” and
collectively as “Indemnitees”) harmless from any and all liabilities, obligations, damages,
injuries, penalties, claims, demands, actions, suits, judgments and any and all costs, expenses or
disbursements (including reasonable attorneys’ fees and expenses) (for the purposes of this Section
8.1 the foregoing are collectively called “expenses”) of whatsoever kind and nature imposed
on, asserted against or incurred by any of the Indemnitees in any way relating to or arising out of
this Agreement, any other Credit Document or any other document executed in connection herewith or
therewith or in any other way connected with the administration of the transactions contemplated
hereby or thereby or the enforcement of any of the terms of, or the preservation of any rights
under any thereof, or in any way relating to or arising out of the manufacture, ownership,
ordering, purchase, delivery, control, acceptance, lease, financing, possession, operation,
condition, sale, return or other disposition, or use of the Collateral (including, without
limitation, latent or other defects, whether or not discoverable), the violation of the laws of any
country, state or other governmental body or unit, any tort (including, without limitation, claims
arising or imposed under the doctrine of strict liability, or for or on account of injury to or the
death of any Person (including any Indemnitee), or property damage), or contract claim;
provided that no Indemnitee shall be indemnified pursuant to this Section 8.1(a) for
losses, damages or liabilities to the extent caused by the gross negligence or willful misconduct
of such Indemnitee (as determined by a court of competent jurisdiction in a final and
non-appealable decision). Each Assignor agrees that upon written notice by any Indemnitee of the
assertion of such a liability, obligation, damage, injury, penalty, claim, demand, action, suit or
judgment, the relevant Assignor shall assume full responsibility for the defense thereof. Each
Indemnitee agrees to use its best efforts to promptly notify the relevant Assignor of any such
assertion of which such Indemnitee has knowledge.


          (b) Without limiting the application of Section 8.1(a) hereof, each Assignor agrees, jointly
and severally, to pay or reimburse the Collateral Agent for any and all reasonable fees, costs and
expenses of whatever kind or nature incurred in connection with the creation, preservation or
protection of the Collateral Agent’s Liens on, and security interest in, the Collateral, including,
without limitation, all fees and taxes in connection with the recording or filing of instruments
and documents in public offices, payment or discharge of any taxes or Liens upon or in respect of
the Collateral, premiums for 



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insurance with respect to the Collateral and all other fees, costs and expenses in connection with
protecting, maintaining or preserving the Collateral and the Collateral Agent’s interest therein,
whether through judicial proceedings or otherwise, or in defending or prosecuting any actions,
suits or proceedings arising out of or relating to the Collateral.



          (c) Without limiting the application of Section 8.1(a) or (b) hereof, each Assignor agrees,
jointly and severally, to pay, indemnify and hold each Indemnitee harmless from and against any
loss, costs, damages and expenses which such Indemnitee may suffer, expend or incur in consequence
of or growing out of any material misrepresentation by any Assignor in this Agreement, any other
Credit Document or in any writing contemplated by or made or delivered pursuant to or in connection
with this Agreement or any other Credit Document.


          (d) If and to the extent that the obligations of any Assignor under this Section 8.1 are
unenforceable for any reason, such Assignor hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under applicable law.


          8.2 Indemnity Obligations Secured by Collateral; Survival. Any amounts paid by any
Indemnitee as to which such Indemnitee has the right to reimbursement shall constitute Obligations
secured by the Collateral. The indemnity obligations of each Assignor contained in this Article
VIII shall continue in full force and effect notwithstanding the full payment of all of the other
Obligations and notwithstanding the full payment of all the Notes issued, and Loans made, under the
Credit Agreement, the termination of all Letters of Credit (and the full payment of all Unpaid
Drawings) issued under the Credit Agreement, the termination of all Secured Cash Management
Agreements provided by Secured Cash Management Banks and the payment of all other Obligations and
notwithstanding the discharge thereof and the occurrence of the Termination Date.



ARTICLE IX




DEFINITIONS


          The following terms shall have the meanings herein specified. Such definitions shall be
equally applicable to the singular and plural forms of the terms defined.


          “ABL Priority Collateral” shall have the meaning assigned that term in the
Intercreditor Agreement.


          “Account” shall mean any “account” as such term is defined in the Uniform Commercial
Code as in effect on the Effective Date in the State of New York, and in any event shall include
but shall not be limited to, all rights to payment of any monetary obligation, whether or not
earned by performance, (i) for property that has been or is to be sold, leased, licensed, assigned
or otherwise disposed of, (ii) for services rendered or to be rendered, (iii) for a policy of
insurance issued or to be issued, (iv) for a secondary obligation incurred or to be incurred, (v)
for energy provided or to be provided, (vi) for the use or hire of a vessel under a charter or
other contract, (vii) arising out of the use of a credit or charge card or information contained on
or for use with the card, or (viii) as winnings in a lottery or other game of chance operated or
sponsored by a State, governmental unit of a State, or person licensed or authorized to operate the
game by a State or governmental unit of a State. Without limiting the foregoing, the term
“account” shall include all Health-Care-Insurance Receivables.


          “Administrative Agent” shall have the meaning provided in the recitals of this
Agreement.



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          “Agreement” shall mean this Security Agreement, as the same may be amended, modified,
restated and/or supplemented from time to time in accordance with its terms.


          “As-Extracted Collateral” shall mean “as-extracted collateral” as such term is defined
in the Uniform Commercial Code as in effect on the Effective Date in the State of New York.


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


          “Borrower” shall have the meaning provided in the recitals to this Agreement.


          “Cash Collateral Account” shall mean a non-interest bearing cash collateral account
maintained with, and in the sole dominion and control of, the Collateral Agent for the benefit of
the Secured Creditors.


          “Cash Management Obligations” shall have the meaning provided in the definition of
“Obligations” in this Article IX.


          “Chattel Paper” shall mean “chattel paper” as such term is defined in the Uniform
Commercial Code as in effect on the Effective Date in the State of New York. Without limiting the
foregoing, the term “Chattel Paper” shall in any event include all Tangible Chattel Paper and all
Electronic Chattel Paper.


          “Collateral” shall have the meaning provided in Section 1.1(a) of this Agreement.


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


          “Commercial Tort Claims” shall mean “commercial tort claims” as such term is defined
in the Uniform Commercial Code as in effect on the date hereof in the State of New York.


          “Contract Rights” shall mean all rights of any Assignor under each Contract,
including, without limitation, (i) any and all rights to receive and demand payments under any or
all Contracts, (ii) any and all rights to receive and compel performance under any or all Contracts
and (iii) any and all other rights, interests and claims now existing or in the future arising in
connection with any or all Contracts.


          “Contracts” shall mean all contracts between any Assignor and one or more additional
parties (including, without limitation, any licensing agreements and any partnership agreements,
joint venture agreements and limited liability company agreements).


          “Copyrights” shall mean any United States or foreign copyright now or hereafter owned
by any Assignor, including any registrations of any copyrights, in the United States Copyright
Office or any foreign equivalent office, as well as any application for a copyright registration
now or hereafter made with the United States Copyright Office or any foreign equivalent office by
any Assignor.


          “Credit Agreement” shall have the meaning provided in the recitals of this Agreement.


          “Credit Document Obligations” shall have the meaning provided in the definition of
“Obligations” in this Article IX.



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          “Credit Documents” shall have the meaning provided in the Credit Agreement and shall
include any documentation executed and delivered in connection with any replacement or refinancing
Credit Agreement.


          “Deposit Accounts” shall mean all “deposit accounts” as such term is defined in the
Uniform Commercial Code as in effect on the Effective Date in the State of New York.


          “Discharge of Term Obligations” shall have the meaning assigned that term in the
Intercreditor Agreement.


          “Documents” shall mean “documents” as such term is defined in the Uniform Commercial
Code as in effect on the Effective Date in the State of New York.


          “Domain Names” shall mean all Internet domain names and associated URL addresses in or
to which any Assignor now or hereafter has any right, title or interest.


          “Electronic Chattel Paper” shall mean “electronic chattel paper” as such term is
defined in the Uniform Commercial Code as in effect on the Effective Date in the State of New York.


          “Equipment” shall mean any “equipment” as such term is defined in the Uniform
Commercial Code as in effect on the Effective Date in the State of New York, and in any event,
shall include, but shall not be limited to, all machinery, equipment, furnishings, fixtures and
vehicles now or hereafter owned by any Assignor and any and all additions, substitutions and
replacements of any of the foregoing and all accessions thereto, wherever located, together with
all attachments, components, parts, equipment and accessories installed thereon or affixed thereto.


          “Event of Default” shall mean any Event of Default under, and as defined in the Credit
Agreement.


          “Excluded Collateral” shall have the meaning provided in the Credit Agreement.


          “Excluded Proceeds” means, at any time, all cash Proceeds received by any Assignor
from any sale of Collateral where the respective Collateral is released pursuant to the provisions
of Section 10.8(b) of this Agreement and such Proceeds are applied (or required to be applied) to
pay Credit Document Obligations in accordance with the requirements of the Credit Agreement.


          “Farm Products” shall mean “farm products” as such term is defined in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.


          “General Intangibles” shall mean “general intangibles” as such term is defined in the
Uniform Commercial Code as in effect on the Effective Date in the State of New York.


          “Goods” shall mean “goods” as such term is defined in the Uniform Commercial Code as
in effect on Effective Date in the State of New York.


          “Health-Care-Insurance Receivable” shall mean any “health-care-insurance receivable”
as such term is defined in the Uniform Commercial Code as in effect on the Effective Date in the
State of New York.


          “Included Account” shall mean any Account other than Accounts which constitute
Excluded Collateral.



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          “Included Contract” shall mean any Contract other than Contracts which Excluded
Collateral.


          “Included Contract Rights” shall mean all rights of any Assignor under each Included
Contract, including, without limitation, (i) any and all rights to receive and demand payments
under any or all Included Contracts, (ii) any and all rights to receive and compel performance
under any and all Included Contracts and (iii) any and all rights, interests and claims now
existing or in the future arising in connection with any or all Included Contracts.


          “Included Equipment” shall mean any Equipment other than Equipment which constitutes
Excluded Collateral.


          “Included Instrument” shall mean any Instrument other than Instruments which
constitute Excluded Collateral.


          “Indemnitee” shall have the meaning provided in Section 8.1(a) of this Agreement.


          “Instrument” shall mean “instruments” as such term is defined in the Uniform
Commercial Code as in effect on the Effective Date in the State of New York (provided,
however, that Instruments shall not include any Instruments received in connection with
grower loans extended in accordance with Section 10.05 of the Credit Agreement to the extent local
law or the relevant grower loan documents prohibit such pledge).


          “Inventory” shall mean merchandise, inventory and goods, and all additions,
substitutions and replacements thereof and all accessions thereto, wherever located, together with
all goods, supplies, incidentals, packaging materials, labels, materials and any other items used
or usable in manufacturing, processing, packaging or shipping same, in all stages of production
from raw materials through work in process to finished goods, and all products and proceeds of
whatever sort and wherever located any portion thereof which may be returned, rejected, reclaimed
or repossessed by the Collateral Agent from any Assignor’s customers, and shall specifically
include all “inventory” as such term is defined in the Uniform Commercial Code as in effect on the
Effective Date in the State of New York.


          “Investment Property” shall mean “investment property” as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New York.


          “Lender Creditors” shall have the meaning provided in the recitals of this Agreement.


          “Lenders” shall have the meaning provided in the recitals of this Agreement.


          “Letter-of-Credit Rights” shall mean “letter-of-credit rights” as such term is defined
in the Uniform Commercial Code as in effect on the Effective Date hereof in the State of New York.


          “Location” of any Assignor, shall mean such Assignor’s “location” as determined
pursuant to Section 9-307 of the UCC.


          “Marks” shall mean all right, title and interest in and to any trademarks, service
marks and trade names now held or hereafter acquired by any Assignor, including any registration or
application for registration of any trademarks and service marks now held or hereafter acquired by
any Assignor, which are registered or filed in the United States Patent and Trademark Office or the
equivalent thereof in any state of the United States or any equivalent foreign office or agency, as
well as any unregistered



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trademarks and service marks used by an Assignor and any trade dress including logos, designs,
fictitious business names and other business identifiers used by any Assignor.



          “Material Adverse Effect” shall mean a material adverse effect on the business,
property, assets, liabilities (actual or contingent), operations, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole.


          “Obligations” shall mean and include, as to any Assignor, all of the following:




     (i) the full and prompt payment when due (whether at stated maturity, by acceleration
or otherwise) of all obligations, liabilities and indebtedness (including, without
limitation, principal, premium, interest (including, without limitation, all interest that
accrues after the commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency, reorganization or similar proceeding of any Assignor at the rate
provided for in the respective documentation, whether or not a claim for post-petition
interest is allowed in any such proceeding), reimbursement obligations under Letters of
Credit, fees, costs and indemnities) of such Assignor to the Lender Creditors, whether now
existing or hereafter incurred under, arising out of, or in connection with, the Credit
Agreement and the other Credit Documents to which such Assignor is a party (including,
without limitation, in the event such Assignor is a Subsidiary Guarantor, all such
obligations, liabilities and indebtedness of such Assignor under its Subsidiaries Guaranty)
and the due performance and compliance by such Assignor with all of the terms, conditions
and agreements contained in the Credit Agreement and in such other Credit Documents (all
such obligations, liabilities and indebtedness under this clause (i) being herein
collectively called the “Credit Document Obligations”);




     (ii) the full and prompt payment when due (whether at the stated maturity, by
acceleration or otherwise) of all obligations, liabilities and indebtedness (including,
without limitation, all interest that accrues after the commencement of any case, proceeding
or other action relating to the bankruptcy, insolvency, reorganization or similar proceeding
of any Assignor at the rate provided for in the respective documentation, whether or not a
claim for post-petition interest is allowed in any such proceeding) owing by such Assignor
to the Secured Cash Management Banks, now existing or hereafter incurred under, arising out
of or in connection with any Secured Cash Management Agreement, whether such Secured Cash
Management Agreement is now in existence or hereafter arising (including, without
limitation, in the case of an Assignor that is a Subsidiary Guarantor, all obligations,
liabilities and indebtedness of such Assignor under its Subsidiaries Guaranty in respect of
the Secured Cash Management Agreements), and the due performance and compliance by such
Assignor with all of the terms, conditions and agreements contained in each such Secured
Cash Management Agreement (all such obligations, liabilities and indebtedness under this
clause (ii) being herein collectively called the “Cash Management Obligations”);




     (iii) any and all sums advanced by the Collateral Agent in order to preserve the
Collateral or preserve its security interest in the Collateral;




     (iv) in the event of any proceeding for the collection or enforcement of any
indebtedness, obligations, or liabilities of such Assignor referred to in clauses (i), (ii)
and (iii) above, after an Event of Default shall have occurred and be continuing, the
reasonable expenses of retaking, holding, preparing for sale or lease, selling or otherwise
disposing of or realizing on the Collateral, or of any exercise by the Collateral Agent of
its rights hereunder, together with reasonable attorneys’ fees and court costs;



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     (v) all amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement under Section 8.1 of this Agreement; and




     (vi) all amounts owing to any Agent or any of its affiliates pursuant to any of the
Credit Documents in its capacity as such;



it being acknowledged and agreed that the “Obligations” shall include extensions of credit of the
types described above, whether outstanding on the date of this Agreement or extended from time to
time after the date of this Agreement.



          “Patents” shall mean any patent in or to which any Assignor now or hereafter has any
right, title or interest therein, and any divisions, continuations (including, but not limited to,
continuations-in-parts) and improvements thereof, as well as any application for a patent now or
hereafter made by any Assignor.


          “Permits” shall mean, to the extent permitted to be assigned by the terms thereof or
by applicable law, all licenses, permits, rights, orders, variances, franchises or authorizations
of or from any governmental authority or agency.


          “Primary Obligations” shall have the meaning provided in Section 7.4(b) of this
Agreement.


          “Pro Rata Share” shall have the meaning provided in Section 7.4(b) of this Agreement.


          “Proceeds” shall mean all “proceeds” as such term is defined in the Uniform Commercial
Code as in effect in the State of New York on the Effective Date and, in any event, shall also
include, but not be limited to, (i) any and all proceeds of any insurance, indemnity, warranty or
guaranty payable to the Collateral Agent or any Assignor from time to time with respect to any of
the Collateral, (ii) any and all payments (in any form whatsoever) made or due and payable to any
Assignor from time to time in connection with any requisition, confiscation, condemnation, seizure
or forfeiture of all or any part of the Collateral by any governmental authority (or any person
acting under color of governmental authority) and (iii) any and all other amounts from time to time
paid or payable under or in connection with any of the Collateral.


          “Registered Organization” shall have the meaning provided in the Uniform Commercial
Code as in effect in the State of New York.


          “Required Secured Creditors” shall mean the Required Lenders (or, to the extent
provided in Section 13.12 of the Credit Agreement, each of the Lenders).


          “Secondary Obligations” shall have the meaning provided in Section 7.4(b) of this
Agreement.


          “Secured Cash Management Agreement” means a Treasury Services Agreement entered into
by the Borrower or any of its Subsidiaries with a Secured Cash Managed Bank.


          “Secured Cash Management Banks” means, with respect to any Treasury Services
Agreement, any Lender or any affiliate thereof (even if such Lender subsequently ceases to be a
Lender under the Credit Agreement for any reason); provided that the Borrower shall have
provided written notice to the Administrative Agent and the Collateral Agent on (i) the Amendment
No. 3 Effective Date or



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(ii) if later, the time of entering into such Treasury Services Agreement, in each case,
indicating that such Person is intended to be a “Secured Cash Management Bank” within the meaning
of this Agreement.



          “Secured Creditors” shall mean the Lender Creditors and the Secured Cash Management
Banks.


          “Secured Debt Agreements” shall mean and include the Credit Documents and the Secured
Cash Management Agreements.


          “Software” shall mean “software” as such term is defined in the Uniform Commercial
Code as in effect on the Effective Date in the State of New York.


          “Supporting Obligations” shall mean any “supporting obligation” as such term is
defined in the Uniform Commercial Code as in effect on the Effective Date in the State of New York,
now or hereafter owned by any Assignor, or in which any Assignor has any rights, and, in any event,
shall include, but shall not be limited to all of such Assignor’s rights in any Letter-of-Credit
Right or secondary obligation that supports the payment or performance of, and all security for,
any Collateral consisting of Accounts, Chattel Paper, Documents, General Intangibles, Instruments
or Investment Properties.


          “Tangible Chattel Paper” shall mean “tangible chattel paper” as such term is defined
in the Uniform Commercial Code as in effect on the Effective Date in the State of New York.


          “Termination Date” shall have the meaning provided in Section 10.8(a) of this
Agreement.


          “Timber-to-Be-Cut” shall mean “timber-to-be-cut” as such term is used in the Uniform
Commercial Code as in effect on the Effective Date in the State of New York.


          “Term Agreement” shall have the meaning assigned that term in the Intercreditor
Agreement.


          “Term Collateral Agent” shall have the meaning assigned that term in the Intercreditor
Agreement.


          “Term Documents” shall have the meaning assigned that term in the Intercreditor
Agreement.


          “Term Obligations” shall have the meaning assigned that term in the Intercreditor
Agreement.


          “Term Secured Parties” shall have the meaning assigned that term in the Intercreditor
Agreement.


          “TL Credit Document Obligations Termination Date” shall mean that date upon which the
Discharge of Term Obligations shall have occurred.


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


          “Trade Secrets” shall mean any secretly held existing engineering or other data,
information, production procedures and other know-how relating to the design manufacture, assembly,
installation,



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use, operation, marketing, sale and/or servicing of any products or business of an
Assignor worldwide whether written or not.



          “Trade Secret Rights” shall mean the rights of an Assignor in any Trade Secret it
holds.


          “Treasury Services Agreement” shall mean any agreement relating to treasury,
depositary and cash management services or automated clearinghouse transfer of funds.


          “Transmitting Utility” shall have the meaning given such term in Section 9-102(a)(80)
of the UCC.


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



ARTICLE X




MISCELLANEOUS


          10.1 Notices. Except as otherwise specified herein, all notices, requests, demands or
other communications to or upon the respective parties hereto shall be sent or delivered by mail,
telegraph, telex, telecopy, cable or courier service and all such notices and communications shall,
when mailed, telegraphed, telexed, telecopied, or cabled or sent by courier, be effective when
deposited in the mails, delivered to the telegraph company, cable company or overnight courier, as
the case may be, or sent by telex or telecopier, except that notices and communications to the
Collateral Agent or any Assignor shall not be effective until received by the Collateral Agent or
such Assignor, as the case may be. All notices and other communications shall be in writing and
addressed as follows:




	 	(a)	 	if to any Assignor, c/o:
	 
	 	 	 	Dole Food Company, Inc.

One Dole Drive

Westlake Village, CA 91362

Attention:

Telephone No.: [ ]

Telecopier No.: [ ]
	 
	 	 	 	Copy to: Peter Tennyson

Telephone No.: (714) 668 6237

Telecopier No.: (714) 979 1921
	 
	 	(b)	 	if to the Collateral Agent, at:
	 
	 		 	60 Wall Street

New York, NY 10005

Attention: Marguerite Sutton

Telephone No.: (212) 250-6150

Telecopier No.: (212) 797-4655






     (c) if to any Lender Creditor other than the Collateral Agent, at such address as such
Lender Creditor shall have specified in the Credit Agreement;



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or at such other address or addressed to such other individual as shall have been furnished in
writing by any Person described above to the party required to give notice hereunder.



          10.2 Waiver; Amendment. None of the terms and conditions of this Agreement (or, to
the extent any other Security Document requires waivers or amendments thereunder to occur in
accordance with the provisions of this Agreement, such other Security Document) may be changed,
waived, modified or varied in any manner whatsoever unless in writing duly signed by each Assignor
(or, to the extent any other Security Document requires waivers or amendments thereunder to occur
in accordance with the provisions of this Agreement, the pledger, transferor, mortgagor or other
corresponding party under such other Security Document) directly affected thereby and the
Collateral Agent (or, to the extent any other Security Document requires waivers or amendments
thereunder to occur in accordance with the provisions of this Agreement, the collateral agent or
mortgagee under such other Security Document) (with the written consent of the Required Secured
Creditors) and subject to the terms of the Intercreditor Agreement; provided that, subject
to the provisions of the Intercreditor Agreement, (i) additional Assignors may be added as parties
hereto from time to time in accordance with Section 10.12 (or the corresponding section in such
other Security Document) without the consent of any other Assignor or of the Secured Creditors, and
(ii) Assignors may be removed as parties hereto from time to time in accordance with Section 10.13
(or the corresponding section in such other Security Document), without the consent of any other
Assignor or of the Secured Creditors.


          10.3 Obligations Absolute. Subject to the terms of the Intercreditor Agreement, the
obligations of each Assignor hereunder shall remain in full force and effect without regard to, and
shall not be impaired by, (a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of such Assignor; (b) any exercise or
non-exercise, or any waiver of, any right, remedy, power or privilege under or in respect of this
Agreement or any other Secured Debt Agreement; or (c) any amendment to or modification of any
Secured Debt Agreement or any security for any of the Obligations (in each case), whether or not
such Assignor shall have notice or knowledge of any of the foregoing.


          10.4 Successors and Assigns. This Agreement shall create a continuing security
interest in the Collateral and shall (i) remain in full force and effect, subject to release and/or
termination as set forth in Section 10.8, (ii) be binding upon each Assignor, its successors and
assigns; provided however that no Assignor shall assign any of its rights or
obligations hereunder without the prior written consent of the Collateral Agent (with the consent
of the Required Secured Creditors), and (iii) inure, together with the rights and remedies of the
Collateral Agent hereunder, to the benefit of the Collateral Agent, the other Secured Creditors and
their respective successors, transferees and assigns. All agreements, statements, representations
and warranties made by each Assignor herein or in any certificate or other instrument delivered by
such Assignor or on its behalf under this Agreement shall be considered to have been relied upon by
the Secured Creditors and shall survive the execution and delivery of this Agreement and the other
Secured Debt Agreements regardless of any investigation made by the Secured Creditors or on their
behalf.


          10.5 Headings Descriptive. The headings of the several sections of this Agreement are
inserted for convenience only and shall not in any way affect the meaning or construction of any
provision of this Agreement.


          10.6 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.


          (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED
IN ACCORDANCE WITH AND BE GOV-



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ERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH ASSIGNOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH
ASSIGNOR HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK JURISDICTION OVER
SUCH ASSIGNOR, AND AGREES NOT TO PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH
COURT LACKS JURISDICTION OVER SUCH ASSIGNOR. EACH ASSIGNOR FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ANY SUCH ASSIGNOR AT
ITS ADDRESS FOR NOTICES AS PROVIDED IN SECTION 10.1 ABOVE, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS
AFTER SUCH MAILING. EACH ASSIGNOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF
PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING
COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SUCH SERVICE OF PROCESS WAS IN ANY WAY
INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE COLLATERAL AGENT UNDER THIS
AGREEMENT, OR ANY SECURED CREDITOR, TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY ASSIGNOR IN ANY OTHER JURISDICTION.



          (b) EACH ASSIGNOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH
COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.


          (c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.


          10.7 Assignors’ Duties. It is expressly agreed, anything herein contained to the
contrary notwithstanding, that each Assignor shall remain liable to perform all of the obligations,
if any, assumed by it with respect to the Collateral and the Collateral Agent shall not have any
obligations or liabilities with respect to any Collateral by reason of or arising out of this
Agreement, nor shall the Collateral Agent be required or obligated in any manner to perform or
fulfill any of the obligations of any Assignor under or with respect to any Collateral.


          10.8 Termination; Release.


          (a) After the Termination Date, this Agreement (or, to the extent any other Security Document
requires termination or releases thereunder to occur in accordance with the provisions of this



-32-









 








Agreement, such other Security Document) shall terminate (provided that all
indemnities set forth herein including, without limitation in Section 8.1 hereof, shall survive
such termination) and the Collateral Agent (or, to the extent any other Security Document requires
termination or releases thereunder to occur in accordance with the provisions of this Agreement,
the collateral agent or mortgagee under such other Security Document), at the request and expense
of the respective Assignor (or, to the extent any other Security Document requires termination or
releases thereunder to occur in accordance with the provisions of this Agreement, the pledgor,
transferor, mortgagor or other corresponding party under such other Security Document), will,
subject to the provisions of the Intercreditor Agreement, promptly execute and deliver to such
Assignor a proper instrument or instruments (including Uniform Commercial Code termination
statements on form UCC-3) acknowledging the satisfaction and termination of this Agreement, and
will duly assign, transfer and deliver to such Assignor (without recourse and without any
representation or warranty) such of the Collateral as may be in the possession of the Collateral
Agent or any of its sub-agents hereunder and as has not theretofore been sold or otherwise applied
or released pursuant to this Agreement. As used in this Agreement, “Termination Date”
shall mean the date upon which the Revolving Loan Commitments under the Credit Agreement have been
terminated, no Letter of Credit or Note (as defined in the Credit Agreement) is outstanding (and
all Loans and Unpaid Drawings have been paid in full), all Letters of Credit have been terminated,
and all other Obligations other than indemnities under the Credit Documents which are not then due
and payable) then due and payable have been paid in full.



          (b) In the event that any part of the Collateral is sold or otherwise disposed of (to a Person
other than a Credit Party), in connection with a sale or disposition permitted by Section 10.02 of
the Credit Agreement or is otherwise released at the direction of the Required Lenders (or all the
Lenders if required by Section 13.12 of the Credit Agreement) and the proceeds of such sale or
disposition (or from such release) are applied in accordance with the terms of the Credit Agreement
to the extent required to be so applied, the Collateral Agent, at the request and expense of such
Assignor, will duly release from the security interest created hereby (and will execute and deliver
such documentation, including termination or partial release statements and the like in connection
therewith) and assign, transfer and deliver to such Assignor (without recourse and without any
representation or warranty) such of the Collateral as is then being (or has been) so sold or
otherwise disposed of, or released, and as may be in the possession of the Collateral Agent (or any
of its sub-agents hereunder) and has not theretofore been released pursuant to this Agreement.
Furthermore, upon the release of any Subsidiary Guarantor from the Subsidiaries Guaranty in
accordance with the provisions thereof, such Assignor (and the Collateral at such time assigned by
the respective Assignor pursuant hereto) shall be released from this Agreement. Notwithstanding
anything to the contrary contained above in this clause (b), at the time of each release of
Collateral pursuant to this clause (b), the Assignor requesting such release shall certify to the
Collateral Agent that, at the time of such release and immediately after giving effect thereto (and
to the sale of the respective Collateral), either (x) no Obligations are or will be then due and
payable or (y) that all Obligations which will then be due and payable shall be paid on such date
in accordance with the requirements of the respective Secured Debt Agreement(s).


          (c) At any time that an Assignor desires that the Collateral Agent take any action to
acknowledge or give effect to any release of Collateral pursuant to the foregoing Section 10.8(a)
or (b), such Assignor shall deliver to the Collateral Agent (and the relevant subagent, if any,
designated hereunder) a certificate signed by an officer of such Assignor stating that the release
of the respective Collateral is permitted pursuant to such Section 10.8(a) or (b). At any time
that the Borrower or the respective Assignor desires that a Subsidiary of the Borrower which has
been released from the Subsidiaries Guaranty be released hereunder as provided in the penultimate
sentence of Section 10.8(b), it shall deliver to the Collateral Agent a certificate signed by an
officer of the Borrower and the respective Assignor stating that the release of the respective
Assignor (and its Collateral) is permitted pursuant to such Section 10.8(b). If reasonably
requested by the Collateral Agent (although the Collateral Agent shall have no ob-



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ligation to make any such request), the respective Assignor shall furnish appropriate legal
opinions (from counsel acceptable to the Collateral Agent) to the effect set forth in this Section
10.8(c).



          (d) The Collateral Agent shall have no liability whatsoever to any other Secured Creditor as
the result of any release of Collateral by it in accordance with, or which the Collateral Agent
believes to be in accordance with, this Section 10.8.


          10.9 Counterparts. This Agreement may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Collateral Agent.


          10.10 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


          10.11 The Collateral Agent and the Other Secured Creditors. The Collateral Agent will
hold in accordance with this Agreement (and to the extent applicable, the Intercreditor Agreement)
all items of the Collateral at any time received under this Agreement. It is expressly understood
and agreed that the obligations of the Collateral Agent as holder of the Collateral and interests
therein and with respect to the disposition thereof, and otherwise under this Agreement, are only
those expressly set forth in this Agreement. The Collateral Agent shall act hereunder on the terms
and conditions set forth herein and in Annex O hereto, the terms of which shall be deemed
incorporated herein by reference as fully as if same were set forth herein in their entirety.


          10.12 Additional Assignors. It is understood and agreed that any Subsidiary Guarantor
that desires to become an Assignor hereunder, or is required to execute a counterpart of this
Agreement after the Effective Date pursuant to the requirements of the Credit Agreement or any
other Credit Document, shall become an Assignor hereunder by executing a counterpart hereof and
delivering same to the Collateral Agent, or by executing a joinder agreement in form and substance
satisfactory to the Collateral Agent, (y) delivering supplements to Annexes A through F, inclusive,
and H through K, inclusive, hereto as are necessary to cause such Annexes to be complete and
accurate with respect to such additional Assignor on such date and (z) taking all actions as
specified in this Agreement as would have been taken by such Assignor had it been an original party
to this Agreement, in each case with all documents required above to be delivered to the Collateral
Agent and with all documents and actions required above to be taken to the reasonable satisfaction
of the Collateral Agent.


          10.13 Release of Assignors. If at any time all of the Equity Interests of any
Assignor (or, to the extent any other Security Document requires releases thereunder to occur in
accordance with the provisions of this Agreement, the pledgor, transferor, mortgagor or other
corresponding party under such other Security Document) owned by the Borrower and its Subsidiaries
are sold (to a person other than the Borrower or any of its Wholly-Owned Subsidiaries) in a
transaction permitted pursuant to the Credit Agreement (and which does not violate the terms of any
other Secured Debt Agreement then in effect), then, at the request and expense of the Borrower, the
respective Assignor shall be released as an Assignor pursuant to this Agreement (and the Collateral
Agent (or, to the extent any other Security Document requires releases thereunder to occur in
accordance with the provisions of this Agreement, the collateral agent or mortgagee under such
other Security Document) is authorized and directed to execute and deliver such instruments of
release as are reasonably satisfactory to it). At any time that the Borrower



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desires that an Assignor be released from this Agreement as provided in this Section 10.13,
the Borrower shall deliver to the Collateral Agent a certificate signed by an officer of the
Borrower stating that the release of the respective Assignor is permitted pursuant to this Section
10.13. If reasonably requested by the Collateral Agent (although the Collateral Agent shall have
no obligation to make any such request), the Borrower shall furnish legal opinions (from counsel
acceptable to the Collateral Agent) to the effect set forth in the immediately preceding sentence.
The Collateral Agent shall have no liability whatsoever to any other Secured Creditor as a result
of the release of any Assignor by it in accordance with, or which it believes to be in accordance
with, this Section 10.13.







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[Signature Pages Intentionally Omitted]




 









 








	 	 	 	 	 
	Accepted and Agreed to:	 	 
	 
	 	 	 	 
	DEUTSCHE BANK AG NEW YORK BRANCH,


	    as Collateral Agent


	 
	 	 	 	 
	 
	 	 	 	 
	By:

	 	/s/ Marguerite Sutton	 	 
	 

	 	 	 	 
	 

	 	Name: Marguerite Sutton	 	 
	 

	 	Title: Director	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	By:

	 	/s/ Evelyn Thierry	 	 
	 

	 	 	 	 
	 

	 	Name: Evelyn Thierry	 	 
	 

	 	Title: Vice President	 	 







 













 





Exhibit E to

Amendment No. 3




PLEDGE AGREEMENT




          PLEDGE AGREEMENT, dated as of April 12, 2006, as amended on March 2, 2010 (as the same may be
amended, restated, modified and/or supplemented from time to time, this “Agreement”), among
each of the undersigned pledgors (each, a “Pledgor” and, together with any other entity
that becomes a pledgor hereunder pursuant to Section 30 hereof, the “Pledgors”) and
DEUTSCHE BANK AG NEW YORK BRANCH (“DBNY”), as collateral agent (in such capacity, together
with any successor collateral agent, the “Pledgee”), for the benefit of the Secured
Creditors (as defined below). Except as otherwise defined herein, all capitalized terms used
herein and defined in the Credit Agreement (as defined below) shall be used herein as therein
defined.




W I T N E S S E T H :




          WHEREAS, Dole Food Company, Inc., a Delaware corporation (the “Borrower”), various
financial institutions from time to time party thereto (the “Lenders”), DBNY, as
Administrative Agent (in such capacity, together with any successor agent, the “Administrative
Agent”, and, together with the Lenders, each Issuing Lender, the Collateral Agent and the
Pledgee are herein called the “Lender Creditors”) have entered into a Credit Agreement,
dated as of April 12, 2006, as amended on March 18, 2009, as amended on October 26, 2009 and as
amended on March 2, 2010, providing for the making of Loans to the Borrower and the issuance of,
and participation in, Letters of Credit for the account of the Borrower all as contemplated therein
(as used herein, the term “Credit Agreement” means the Credit Agreement described above in
this paragraph, as the same may be amended, modified, extended, renewed, replaced, restated,
supplemented or refinanced from time to time, and including any agreement extending the maturity
of, or refinancing or restructuring (including, but not limited to, the inclusion of additional
Borrower or guarantors thereunder or any increase in the amount borrowed) all or any portion of,
the indebtedness under such agreement or any successor agreement, whether or not with the same
agent, trustee, representative, lenders or holders; provided that, with respect to any
agreement providing for the refinancing or replacement of indebtedness under the Credit Agreement,
such agreement shall only be treated as, or as part of, the Credit Agreement hereunder if (i)
either (A) all obligations under the Credit Agreement being refinanced or replaced shall be paid in
full at the time of such refinancing or replacement, and all Revolving Loan Commitments and Letters
of Credit issued pursuant to the refinanced or replaced Credit Agreement shall have terminated in
accordance with their terms or, with respect to certain Letters of Credit, been continued, with
the consent of the respective issuer thereof, under such refinancing or replacement indebtedness or
(B) the Required Lenders shall have consented in writing to the refinancing or replacement
indebtedness being treated as indebtedness pursuant to the Credit Agreement, and (ii) a notice to
the effect that the refinancing or replacement indebtedness shall be treated as issued under the
Credit Agreement shall be delivered by the Borrower to the Collateral Agent);



 









 







          WHEREAS, pursuant to the Subsidiaries Guaranty, each Subsidiary Guarantor has jointly and
severally guaranteed to the Lender Creditors the payment when due of all Guaranteed Obligations (as
defined in the Subsidiaries Guaranty);




          WHEREAS, it is a condition precedent to the making of Loans to the Borrower and the issuance
of, and participation in, Letters of Credit for the account of the Borrower under the Credit
Agreement that each Pledgor shall have executed and delivered to the Collateral Agent this
Agreement; and




          WHEREAS, each Pledgor has obtained and will continue to obtain benefits from the incurrence of
Loans by the Borrower and the issuance of, and participation in, Letters of Credit for the account
of the Borrower under the Credit Agreement;




          NOW, THEREFORE, the parties hereto agree as follows:




          1. SECURITY FOR OBLIGATIONS. Subject to the terms of the Intercreditor Agreement, this Agreement
is made by (A) each Pledgor for the benefit of (i) the Lender Creditors to secure the full and
prompt payment when due (whether at stated maturity, by acceleration or otherwise) of all
obligations, liabilities and indebtedness (including, without limitation, principal, premium,
interest (including, without limitation, all interest that accrues after the commencement of any
case, proceeding or other action relating to the bankruptcy, insolvency, reorganization or similar
proceeding of any Pledgor at the rate provided for in the respective documentation, whether or not
a claim for post-petition interest is allowed in any such proceeding) and reimbursement obligations
under Letters of Credit, fees, costs and indemnities) of such Pledgor owing to the Lender
Creditors, whether now existing or hereafter incurred under, arising out of, or in connection with,
the Credit Agreement and the other Credit Documents to which such Pledgor is a party (including, in
the event such Pledgor is a Subsidiary Guarantor, all such obligations, liabilities and
indebtedness of such Pledgor under its Subsidiaries Guaranty) and the due performance and
compliance by such Pledgor with all of the terms, conditions and agreements contained in the Credit
Agreement and in such other Credit Documents (all such obligations, liabilities and indebtedness
under this clause (i) being herein, collectively, the “Credit Document Obligations”); and
(ii) the Secured Cash Management Banks to secure the full and prompt payment when due (whether at
stated maturity, by acceleration or otherwise) of all obligations, liabilities and indebtedness
(including, without limitation, principal, premium, interest (including, without limitation, all
interest that accrues after the commencement of any case, proceeding or other action relating to
the bankruptcy, insolvency, reorganization or similar proceeding of any Pledgor at the rate
provided for in the respective documentation, whether or not a claim for post-petition interest is
allowed in any such proceeding) and fees, costs and indemnities) of such Pledgor owing to the
Secured Cash Management Banks, whether now existing or hereafter incurred under, arising out of, or
in connection with, the Secured Cash Management Agreements to which such Pledgor is a party
(including, in the event such Pledgor is a Subsidiary Guarantor, all such obligations, liabilities
and indebtedness of such Pledgor under its Subsidiaries Guaranty) and the due performance and
compliance by such Pledgor with all of the terms, conditions and agreements contained in the
Secured Cash Management Agreements (all such obligations, liabilities and indebtedness under this
clause (ii) being herein, collectively, the “Cash Management Obligations”);







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     (B) each Pledgor for the benefit of each Secured Creditor to secure:




     (i) any and all sums advanced by the Pledgee in order to preserve the Collateral or
preserve its security interest in the Collateral;




     (ii) in the event of any proceeding for the collection or enforcement of any
indebtedness, obligations, or liabilities of such Pledgor referred to in clauses (A) and (B)
above, after an Event of Default shall have occurred and be continuing, the reasonable
expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing
of or realizing on the Collateral, or of any exercise by the Pledgee of its rights
hereunder, together with reasonable attorneys’ fees and court costs;




     (iii) all amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement under Section 11 of this Agreement; and




     (iv) all amounts owing to any Agent or any of its affiliates pursuant to any of the
Credit Documents in its capacity as such.


All such obligations, liabilities, indebtedness, sums and expenses set forth in clauses (A) and (B)
of this Section 1 above being herein collectively called the “Obligations”, it being
acknowledged and agreed that the “Obligations” shall, subject to the immediately succeeding
sentence, include extensions of credit of the types described above, whether outstanding on the
date of this Agreement or extended from time to time after the date of this Agreement.




          (C) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE RELATIVE RIGHTS AND REMEDIES OF THE
COLLATERAL AGENT AND THE SECURED CREDITORS HEREUNDER SHALL BE SUBJECT TO AND GOVERNED BY THE TERMS
OF THE INTERCREDITOR AGREEMENT AT ANY TIME THE INTERCREDITOR AGREEMENT IS IN EFFECT. IN THE EVENT
OF ANY INCONSISTENCY BETWEEN THE TERMS HEREOF AND THE TERMS OF THE INTERCREDITOR AGREEMENT, THE
TERMS OF THE INTERCREDITOR AGREEMENT SHALL CONTROL AT ANY TIME THE INTERCREDITOR AGREEMENT IS IN
EFFECT.




          2. DEFINITIONS.




          (a) Unless otherwise defined herein, all capitalized terms used herein and defined in the
Credit Agreement shall be used herein as therein defined. Reference to singular terms shall
include the plural and vice versa.




          (b) The following capitalized terms used herein shall have the definitions specified below:





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




     “Administrative Agent” shall have the meaning set forth in the recitals hereto.



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     “Adverse Claim” shall have the meaning given such term in Section 8-102(a)(1)
of the UCC.




     “Agreement” shall have the meaning set forth in the recitals hereto.




     “Borrower” shall have the meaning set forth in the recitals hereto.




     “Cash Management Obligations” shall have the meaning set forth in Section
1(A)(ii) hereof.




     “Certificated Security” shall have the meaning given such term in Section
8-102(a)(4) of the UCC.




     “Class” shall have the meaning set forth in Section 22 hereof.




     “Clearing Corporation” shall have the meaning given such term in Section
8-102(a)(5) of the UCC.




     “Collateral” shall have the meaning set forth in Section 3.1 hereof.




     “Collateral Accounts” shall mean any and all accounts established and
maintained by the Pledgee in the name of any Pledgor to which Collateral may be credited.




     “Credit Agreement” shall have the meaning set forth in the recitals hereto.




     “Credit Document Obligations” shall have the meaning set forth in Section
1(A)(i) hereof.




     “Credit Documents” shall have the meaning provided in the Credit Agreement and
shall include any documentation executed and delivered in connection with any replacement or
refinancing of the Credit Agreement.




     “Discharge of Term Obligations” shall have the meaning provided in the
Intercreditor Agreement.




     “Domestic Corporation” shall have the meaning set forth in the definition of
“Stock.”




     “Event of Default” shall mean any Event of Default under, and as defined in the
Credit Agreement.




     “Excluded Collateral” shall have the meaning provided in the Credit Agreement.




     “Excluded Proceeds” shall mean, at any time, all cash Proceeds received by any
Pledgor from any sale of Collateral where the respective Collateral is released pursuant to
the provisions of Section 20(b) of this Agreement and such Proceeds are applied (or required
to be applied) to pay Obligations and/or Term Obligations, in each case in accordance with
the requirements of the Credit Agreement.



-4-









 






     “Exempted Foreign Entity” shall mean any Foreign Corporation and any limited
liability company organized under the laws of a jurisdiction other than the United States or
any State or territory thereof that, in any such case, is treated as a corporation or an
association taxable as a corporation for U.S. Federal income tax purposes.




     “Financial Asset” shall have the meaning given such term in Section 8-102(a)(9)
of the UCC.




     “Foreign Corporation” shall have the meaning set forth in the definition of
“Stock.”




     “Indemnitees” shall have the meaning set forth in Section 11 hereof.




     “Instrument” shall have the meaning given such term in Section 9-102(a)(47) of
the UCC.




     “Investment Property” shall have the meaning given such term in Section
9-102(a)(49) of the UCC.




     “Lenders” shall have the meaning set forth in the recitals hereto.




     “Limited Liability Company Assets” shall mean all assets, whether tangible or
intangible and whether real, personal or mixed (including, without limitation, all limited
liability company capital and interest in other limited liability companies), at any time
owned by any Pledgor or represented by any Limited Liability Company Interest.




     “Limited Liability Company Interests” shall mean the entire limited liability
company interest at any time owned by any Pledgor in any limited liability company; provided
that the term “Limited Liability Company Interest” shall not include any limited liability
company interest in any limited liability company that is not a Subsidiary of such Pledgor
to the extent (and only to the extent) the amount invested in such limited liability company
interests owned or held by such Pledgor does not exceed $1,000,000.




     “Location” of any Pledgor shall mean such Pledgor’s “location” as determined
pursuant to Section 9-307 of the UCC.




     “Non-Voting Equity Interests” shall mean all Equity Interests of any Person
which are not Voting Equity Interests.




     “Notes” shall mean (x) all intercompany notes at any time issued to each
Pledgor and (y) all other promissory notes from time to time issued to, or held by, each
Pledgor.




     “Obligations” shall have the meaning set forth in Section 1 hereof.




     “Obligations Termination Date” shall mean that date upon which all Obligations
(other than indemnities for which no claim has been made) have been paid in full and all
Revolving Loan Commitments and Letters of Credit under the Credit Agreement have been
terminated.



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     “Partnership Assets” shall mean all assets, whether tangible or intangible and
whether real, personal or mixed (including, without limitation, all partnership capital and
interest in other partnerships), at any time owned by any Pledgor or represented by any
Partnership Interest.




     “Partnership Interest” shall mean the entire general partnership interest or
limited partnership interest at any time owned by any Pledgor in any general partnership or
limited partnership; provided that the term “Partnership Interest” shall not include
any partnership interest in any partnership that is not a Subsidiary of such Pledgor to the
extent (and only to the extent) the amount invested in such partnership interests owned or
held by such Pledgor does not exceed $1,000,000.




     “Pledged Limited Liability Company Interests” shall mean all Limited Liability
Company Interests at any time pledged or required to be pledged hereunder.




     “Pledged Notes” shall mean all Notes at any time pledged or required to be
pledged hereunder.




     “Pledged Partnership Interests” shall mean all Partnership Interest at any time
pledged or required to be pledged hereunder.




     “Pledged Securities” shall mean all Securities at any time pledged or required
to be pledged hereunder.




     “Pledged Stock” shall mean all Stock at any time pledged or required to be
pledged hereunder.




     “Pledgee” shall have the meaning set forth in the first paragraph hereof.




     “Pledgor” shall have the meaning set forth in the first paragraph hereof.




     “Proceeds” shall have the meaning given such term in Section 9-102(a)(64) of
the UCC.




     “Registered Organization” shall have the meaning given such term in Section
9-102(a)(70) of the UCC.




     “Required Lenders” shall have the meaning given such term in the Credit
Agreement.




     “Required Secured Creditors” shall mean the Required Lenders (or, to the extent
provided in Section 13.12 of the Credit Agreement, each of the Lenders).




     “Secured Cash Management Agreement” means a Treasury Services Agreement entered
into by the Borrower or any of its Subsidiaries with a Secured Cash Management Bank.



-6-









 






     “Secured Cash Management Banks” means, with respect to any Treasury Services
Agreement, any Lender or any affiliate thereof (even if such Lender subsequently ceases to
be a Lender under the Credit Agreement for any reason).




     “Secured Creditors” shall mean the Lender Creditors and the Secured Cash
Management Banks.




     “Secured Debt Agreements” shall mean and include the Credit Documents and the
Secured Cash Management Agreements.




     “Securities Act” shall mean the Securities Act of 1933, as amended, as in
effect from time to time.




     “Securities Intermediary” shall have the meaning given such term in Section
8-102(14) of the UCC.




     “Security” and “Securities” shall have the meaning given such term in
Section 8-102(a)(15) of the UCC and shall in any event include all Stock and Notes (to the
extent same constitute “Securities” under Section 8-102(a)(15)).




     “Security Entitlement” shall have the meaning given such term in Section
8-102(a)(17) of the UCC.




     “Specified Default” shall have the meaning set forth in Section 5 hereof.




     “Stock” shall mean (x) with respect to corporations incorporated under the laws
of the United States or any State or territory thereof or the District of Columbia (each, a
“Domestic Corporation”), all of the issued and outstanding shares of capital stock
of any Domestic Corporation at any time owned by any Pledgor and (y) with respect to
corporations not Domestic Corporations (each, a “Foreign Corporation”), all of the
issued and outstanding shares of capital stock of any Foreign Corporation at any time owned
by any Pledgor, provided that the term “Stock” shall not include any capital stock
of a corporation that is not a Subsidiary of such Pledgor to the extent (and only to the
extent) the amount invested in all such capital stock owned or held by such Pledgor does not
exceed $1,000,000.




     “Termination Date” shall have the meaning set forth in Section 20 hereof.




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




     “Term Documents” shall have the meaning set forth in the Intercreditor
Agreement.




     “Term Obligations” shall have the meaning set forth in the Intercreditor
Agreement.



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     “Term Secured Parties” shall have the meaning set forth in the Intercreditor
Agreement.




     “TL Credit Document Obligations Termination Date” shall mean the date on which
the Discharge of Term Obligations shall have occurred.




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




     “Transmitting Utility” has the meaning given such term in Section 9-102(a)(80)
of the UCC.




     “Treasury Services Agreement” shall mean any agreement relating to treasury,
depositary and cash management services or automated clearinghouse transfer of funds.




     “UCC” shall mean the Uniform Commercial Code as in effect in the State of New
York from time to time; provided that all references herein to specific Sections or
subsections of the UCC are references to such Sections or subsections, as the case may be,
of the Uniform Commercial Code as in effect in the State of New York on the Effective Date.




     “Uncertificated Security” shall have the meaning given such term in Section
8-102(a)(18) of the UCC.




     “Voting Equity Interests” of any Person shall mean all classes of Equity
Interests of such Person entitled to vote.



          3. PLEDGE OF SECURITIES, ETC.




          3.1 Pledge. (i) To secure the Obligations now or hereafter owed or to be performed by
such Pledgor (but subject to clause (x) of the proviso at the end of this Section 3.1 in the case
of Voting Equity Interests of Exempted Foreign Entities pledged hereunder), each Pledgor does
hereby grant, pledge and assign to the Pledgee for the benefit of the Secured Creditors, and does
hereby create a continuing security interest (subject to those Liens permitted to exist with
respect to the Collateral pursuant to the terms of all Secured Debt Agreements then in effect) in
favor of the Pledgee for the benefit of the Secured Creditors in, all of its right, title and
interest in and to the following, whether now existing or hereafter from time to time acquired
(collectively, the “Collateral”):





     (a) each of the Collateral Accounts (to the extent a security interest therein is not
created pursuant to the Security Agreement), including any and all assets of whatever type
or kind deposited by such Pledgor in any such Collateral Account, whether now owned or
hereafter acquired, existing or arising, including, without limitation, all Financial
Assets, Investment Property, monies, checks, drafts, Instruments, Securities or interests
therein of any type or nature deposited or required by the Credit Agreement or any other
Secured Debt Agreement to be deposited in such Collateral Account, and all investments and
all certificates and other Instruments (including depository receipts, if any)



-8-









 







from time to time representing or evidencing the same, and all dividends, interest,
distributions, cash and other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the foregoing;




     (b) all Securities owned or held by such Pledgor from time to time and all options and
warrants owned by such Pledgor from time to time to purchase Securities;




     (c) all Limited Liability Company Interests owned by such Pledgor from time to time and
all of its right, title and interest in each limited liability company to which each such
Limited Liability Company Interest relates, whether now existing or hereafter acquired,
including, without limitation, to the fullest extent permitted under the terms and
provisions of the documents and agreements governing such Limited Liability Company
Interests and applicable law:




     (A) all its capital therein and its interest in all profits, income, surpluses,
losses, Limited Liability Company Assets and other distributions to which such
Pledgor shall at any time be entitled in respect of such Limited Liability Company
Interests;




     (B) all other payments due or to become due to such Pledgor in respect of
Limited Liability Company Interests, whether under any limited liability company
agreement or otherwise, whether as contractual obligations, damages, insurance
proceeds or otherwise;




     (C) all of its claims, rights, powers, privileges, authority, options, security
interests, liens and remedies, if any, under any limited liability company agreement
or operating agreement, or at law or otherwise in respect of such Limited Liability
Company Interests;




     (D) all present and future claims, if any, of such Pledgor against any such
limited liability company for monies loaned or advanced, for services rendered or
otherwise;




     (E) all of such Pledgor’s rights under any limited liability company agreement
or operating agreement or at law to exercise and enforce every right, power, remedy,
authority, option and privilege of such Pledgor relating to such Limited Liability
Company Interests, including any power to terminate, cancel or modify any such
limited liability company agreement or operating agreement, to execute any
instruments and to take any and all other action on behalf of and in the name of any
of such Pledgor in respect of such Limited Liability Company Interests and any such
limited liability company, to make determinations, to exercise any election
(including, but not limited to, election of remedies) or option or to give or
receive any notice, consent, amendment, waiver or approval, together with full power
and authority to demand, receive, enforce, collect or receipt for any of the
foregoing or for any Limited Liability Company Asset, to enforce or execute any
checks, or other instruments or orders, to file any claims and to take any action in
connection with any of the foregoing; and



-9-









 






     (F) all other property hereafter delivered in substitution for or in addition
to any of the foregoing, all certificates and instruments representing or evidencing
such other property and all cash, securities, interest, dividends, rights and other
property at any time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all thereof;




     (d) all Partnership Interests owned by such Pledgor from time to time and all of its
right, title and interest in each partnership to which each such Partnership Interest
relates, whether now existing or hereafter acquired, including, without limitation, to the
fullest extent permitted under the terms and provisions of the documents and agreements
governing such Partnership Interests and applicable law:




     (A) all its capital therein and its interest in all profits, income, surpluses,
losses, Partnership Assets and other distributions to which such Pledgor shall at
any time be entitled in respect of such Partnership Interests;




     (B) all other payments due or to become due to such Pledgor in respect of
Partnership Interests, whether under any partnership agreement or otherwise, whether
as contractual obligations, damages, insurance proceeds or otherwise;




     (C) all of its claims, rights, powers, privileges, authority, options, security
interests, liens and remedies, if any, under any partnership agreement or operating
agreement, or at law or otherwise in respect of such Partnership Interests;




     (D) all present and future claims, if any, of such Pledgor against any such
partnership for monies loaned or advanced, for services rendered or otherwise;




     (E) all of such Pledgor’s rights under any partnership agreement or operating
agreement or at law to exercise and enforce every right, power, remedy, authority,
option and privilege of such Pledgor relating to such Partnership Interests,
including any power to terminate, cancel or modify any partnership agreement or
operating agreement, to execute any instruments and to take any and all other action
on behalf of and in the name of such Pledgor in respect of such Partnership
Interests and any such partnership, to make determinations, to exercise any election
(including, but not limited to, election of remedies) or option or to give or
receive any notice, consent, amendment, waiver or approval, together with full power
and authority to demand, receive, enforce, collect or receipt for any of the
foregoing or for any Partnership Asset, to enforce or execute any checks, or other
instruments or orders, to file any claims and to take any action in connection with
any of the foregoing; and




     (F) all other property hereafter delivered in substitution for or in addition
to any of the foregoing, all certificates and instruments representing or evidencing
such other property and all cash, securities, interest, dividends, rights and other
property at any time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all thereof;



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     (e) all Financial Assets and Investment Property owned by such Pledgor from time to
time;




     (f) all Security Entitlements owned by such Pledgor from time to time in any and all of
the foregoing; and




     (g) all Proceeds (other than Excluded Proceeds) of any and all of the foregoing;


provided that (x) no Voting Equity Interests of any Exempted Foreign Entity which
represents more than 65% of the total combined voting power of all classes of Voting Equity
Interests of the respective Exempted Foreign Entity shall be pledged hereunder, (y) each Pledgor
shall be required to pledge hereunder 100% of the Non-Voting Equity Interests of each Exempted
Foreign Entity at any time and from time to time acquired by such Pledgor, which Non-Voting Equity
Interests shall not be subject to the limitations described in preceding clause (x) and (z)
notwithstanding (i) anything to the contrary contained above in this Section 3.1, the security
interest created pursuant to this Agreement shall not extend to, and the term “Collateral” shall
not include (A) Excluded Collateral owned or held by any Pledgor, and (B) any Instruments received
in connection with grower loans extended in accordance with Section 10.05 of the Credit Agreement
to the extent local law or the relevant grower loan documents prohibit such pledge and (ii)
anything to the contrary contained in this Agreement, such Pledgor shall not be required to pledge
any Notes hereunder with an outstanding principal amount of $500,000 or less, provided that
no more than $2,500,000 in aggregate principal amount for all such Notes for all Pledgors hereunder
(including, for this purpose, any Instruments (as defined in the Security Agreement) not required
to be delivered pursuant to the Security Agreement) shall be excluded from the pledge and delivery
requirements under this Agreement.




          (ii) Notwithstanding anything to the contrary contained in this Section 3.1 or elsewhere in
this Agreement, each Pledgor and the Pledgee (on behalf of the Secured Creditors) acknowledges and
agrees that:





     (x) the security interest granted pursuant to this Agreement (including pursuant to
this Section 3.1) to the Pledgee for the benefit of the Secured Creditors (i) in the ABL
Priority Collateral, shall be a First Priority Lien and (ii) in the TL Priority Collateral,
shall be a Second Priority Lien in the TL Priority Collateral fully junior, subordinated and
subject to the security interest granted to the Term Collateral Agent for the benefit of the
Term Secured Parties in the TL Priority Collateral on the terms and conditions set forth in
the Term Documents and the Intercreditor Agreement and all other rights and benefits
afforded hereunder to the Secured Creditors with respect to the TL Priority Collateral are
expressly subject to the terms and conditions of the Intercreditor Agreement; and




     (y) the Secured Creditors’ security interests in the Collateral constitute security
interests separate and apart (and of a different class and claim) from the Term Secured
Parties’ security interests in the Collateral.



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          3.2 Procedures.




          (a) To the extent that any Pledgor at any time or from time to time owns, acquires or obtains
any right, title or interest in any Collateral, such Collateral shall automatically (and without
the taking of any action by such Pledgor) be pledged pursuant to Section 3.1 of this Agreement and,
in addition thereto (but subject to the terms of the Intercreditor Agreement), such Pledgor shall
(to the extent provided below and not inconsistent with the terms of the Intercreditor Agreement)
take the following actions with respect to such Collateral as set forth below (as promptly as
practicable and, in any event, within 10 days after it obtains such Collateral) for the benefit of
the Pledgee and the other Secured Creditors:





     (i) with respect to a Certificated Security (other than a Certificated Security
credited on the books of a Clearing Corporation or Securities Intermediary), such Pledgor
shall physically deliver such Certificated Security to the Pledgee, endorsed to the Pledgee
or endorsed in blank;




     (ii) with respect to an Uncertificated Security (other than an Uncertificated Security
credited on the books of a Clearing Corporation or Securities Intermediary), such Pledgor
shall cause the issuer of such Uncertificated Security to duly authorize, execute, and
deliver to the Pledgee, an agreement for the benefit of the Pledgee and the other Secured
Creditors substantially in the form of Annex H hereto (appropriately completed to the
satisfaction of the Pledgee and with such modifications, if any, as shall be satisfactory to
the Pledgee) pursuant to which such issuer agrees to comply with any and all instructions
originated by the Pledgee without further consent by the registered owner and not to comply
with instructions regarding such Uncertificated Security (and any Partnership Interests and
Limited Liability Company Interests issued by such issuer) originated by any other Person
other than a court of competent jurisdiction;




     (iii) with respect to a Certificated Security, Uncertificated Security, Partnership
Interest or Limited Liability Company Interest credited on the books of a Clearing
Corporation or Securities Intermediary (including a Federal Reserve Bank, Participants Trust
Company or The Depository Trust Company), such Pledgor shall promptly notify the Pledgee
thereof and shall promptly take (x) all actions required (i) to comply with the applicable
rules of such Clearing Corporation or Securities Intermediary and (ii) to perfect the
security interest of the Pledgee under applicable law (including, in any event, under
Sections 9-314(a), (b) and (c), 9-106 and 8-106(d) of the UCC) and (y) such other actions as
the Pledgee deems necessary or desirable to effect the foregoing;




     (iv) with respect to a Partnership Interest or a Limited Liability Company Interest
(other than a Partnership Interest or Limited Liability Company Interest credited on the
books of a Clearing Corporation or Securities Intermediary), (1) if such Partnership
Interest or Limited Liability Company Interest is represented by a certificate and is a
Security for purposes of the UCC, the procedure set forth in Section 3.2(a)(i) hereof, and
(2) if such Partnership Interest or Limited Liability Company Interest is not represented by
a certificate or is not a Security for purposes of the UCC, the procedure set forth in
Section 3.2(a)(ii) hereof;



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     (v) with respect to any Note, physical delivery of such Note to the Pledgee, endorsed
in blank, or, at the request of the Pledgee, endorsed to the Pledgee; and




     (vi) with respect to cash proceeds from any of the Collateral described in Section 3.1
hereof, (i) establishment by the Pledgee, upon a Specified Default or Event of Default, of a
cash account in the name of such Pledgor over which the Pledgee shall (to the extent not
inconsistent with the Intercreditor Agreement) have “control” within the meaning of the UCC
and from which no withdrawals or transfers may be made by any Person except with the prior
written consent of the Pledgee (subject to the terms of the Intercreditor Agreement) and
(ii) deposit of such cash in such cash account.



          (b) In addition to the actions required to be taken pursuant to Section 3.2(a) hereof, each
Pledgor shall take the following additional actions with respect to the Collateral:





     (i) with respect to all Collateral of such Pledgor whereby or with respect to which the
Pledgee may obtain “control” thereof within the meaning of Section 8-106 of the UCC (or
under any provision of the UCC as same may be amended or supplemented from time to time, or
under the laws of any relevant State other than the State of New York), such Pledgor shall
take all actions (to the extent not inconsistent with the Intercreditor Agreement) as may be
reasonably requested from time to time by the Pledgee so that “control” of such Collateral
is obtained and at all times held by the Pledgee; and




     (ii) each Pledgor shall from time to time cause appropriate financing statements (on
appropriate forms) under the Uniform Commercial Code as in effect in the various relevant
States, covering all Collateral hereunder (with the form of such financing statements to be
satisfactory to the Pledgee), to be filed in the relevant filing offices so that at all
times the Pledgee’s security interest in all Investment Property and other Collateral which
can be perfected by the filing of such financing statements (in each case to the maximum
extent perfection by filing may be obtained under the laws of the relevant States,
including, without limitation, Section 9-312(a) of the UCC) is so perfected.



          3.3 Subsequently Acquired Collateral. If any Pledgor shall acquire (by purchase,
stock dividend, distribution or otherwise) any additional Collateral at any time or from time to
time after the date hereof, such Collateral shall automatically (and without any further action
being required to be taken) be subject to the pledge and security interests created pursuant to
Section 3.1 hereof and, furthermore, such Pledgor will, to the extent not inconsistent with the
Intercreditor Agreement, thereafter take (or cause to be taken) all action (as promptly as
practicable and, in any event, within 10 days after it obtains such Collateral) with respect to
such Collateral in accordance with the procedures set forth in Section 3.2 hereof, and will to the
extent not inconsistent with the terms of the Intercreditor Agreement, promptly thereafter deliver
to the Pledgee (i) a certificate executed by an authorized officer of such Pledgor describing such
Collateral and certifying that the same has been duly pledged in favor of the Pledgee (for the
benefit of the Secured Creditors) hereunder and (ii) supplements to Annexes A through G hereto as
are necessary to cause such Annexes to be complete and accurate at such time, provided,
however, that in the event that such Collateral constitutes Stock, Limited Liability
Company Interests and/or Partnership Interests of a Shell Corporation, such actions shall not be
required to be taken until 60 days after formation, creation, or establishment of such Shell
Corporation. Without lim–






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iting the foregoing, each Pledgor shall be required to pledge hereunder the Equity Interests
of any Exempted Foreign Entity at any time and from time to time after the date hereof acquired by
such Pledgor, provided that (x) any such pledge of Voting Equity Interests of any Exempted
Foreign Entity shall be subject to the provisions of clause (x) of the proviso to Section 3.1(A)
hereof, (y) each Pledgor shall be required to pledge hereunder 100% of the Non-Voting Equity
Interests of each Exempted Foreign Entity at any time and from time to time acquired by such
Pledgor and (z) each Pledgor shall be required to pledge hereunder any Notes at any time and from
time to time after the date hereof acquired by such Pledgor, provided that any such pledge
or Note shall be subject to the provisions of clause (z)(ii) of the proviso to Section 3.1(A)
hereof.




          3.4 Transfer Taxes. Each pledge of Collateral under Section 3.1 or Section 3.3 hereof
shall be accompanied by any transfer tax stamps required in connection with the pledge of such
Collateral.




          3.5 Certain Representations and Warranties Regarding the Collateral. Each Pledgor
that was a Pledgor on the Effective Date (each, an “Initial Pledgor”) represents and
warrants that as of the Effective Date: (i) each Subsidiary of such Pledgor, and the direct
ownership thereof, is listed in Annex B hereto; (ii) the Pledged Stock (and any warrants or options
to purchase Pledged Stock) held by such Pledgor consists of the number and type of shares of the
stock (or warrants or options to purchase any stock) of the corporations as described in Annex C
hereto; (iii) such Pledged Stock referenced in clause (ii) of this paragraph constitutes that
percentage of the issued and outstanding capital stock of the issuing corporation as is set forth
in Annex C hereto; (iv) the Pledged Notes held by such Pledgor consist of the promissory notes
described in Annex D hereto where such Pledgor is listed as the lender; (v) the Pledged Limited
Liability Company Interests held by such Pledgor consist of the number and type of interests of the
Persons described in Annex E hereto; (vi) each such Pledged Limited Liability Company Interest
referenced in clause (v) of this paragraph constitutes that percentage of the issued and
outstanding equity interest of the issuing Person as set forth in Annex E hereto; (vii) the Pledged
Partnership Interests held by such Pledgor consist of the number and type of interests of the
Persons described in Annex F hereto; (viii) each such Pledged Partnership Interest referenced in
clause (vii) of this paragraph constitutes that percentage or portion of the entire partnership
interest of the issuing Person as set forth in Annex F hereto; (ix) the exact address of each chief
executive office of such Pledgor is listed on Annex G hereto; (x) the Pledgor has complied with the
respective procedure set forth in Section 3.2(a) hereof with respect to each item of Collateral
described in Annexes C through F hereto; and (xi) on the date hereof, such Pledgor owns no other
Pledged Securities, Pledged Stock, Pledged Notes, Pledged Limited Liability Company Interests or
Pledged Partnership Interests.




          3.6 Overriding Provisions with respect to TL Priority Collateral. Notwithstanding
anything to the contrary contained above in this Section 3, or elsewhere in this Agreement or any
other Security Document, to the extent the provisions of this Agreement (or any other Security
Documents) require the delivery of, or control over, TL Priority Collateral to be granted to the
Pledgee at any time prior to the TL Credit Document Obligations Termination Date, then delivery of
such TL Priority Collateral (or control with respect thereto) shall instead be granted to the Term
Collateral Agent, to be held in accordance with the Term Documents and the Intercreditor Agreement.
Furthermore, at all times prior to the TL Credit Document Obliga–






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tions Termination Date, the Collateral Agent is authorized by the parties hereto to effect
transfers of TL Priority Collateral at any time in its possession (and any “control” or similar
agreements with respect to TL Priority Collateral) to the Term Collateral Agent.




          4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Pledgee shall have the right to appoint
one or more sub-agents for the purpose of retaining physical possession of the Collateral, which
may be held (in the discretion of the Pledgee) in the name of the relevant Pledgor, endorsed or
assigned in blank or in favor of the Pledgee or any nominee or nominees of the Pledgee or a
sub-agent appointed by the Pledgee.




          5. VOTING, ETC., WHILE NO EVENT OF DEFAULT OR SPECIFIED DEFAULT. Unless and until there shall
have occurred and be continuing any Event of Default under the Credit Agreement or a Default under
Section 11.01 or 11.05 of the Credit Agreement (each such Default, a “Specified Default”),
each Pledgor shall be entitled to exercise any and all voting and other consensual rights
pertaining to the Collateral owned by it, and to give consents, waivers or ratifications in respect
thereof; provided that, in each case, no vote shall be cast or any consent, waiver or
ratification given or any action taken or omitted to be taken which would violate, result in a
breach of any covenant contained in, or be inconsistent in any material respect with any of the
terms of the Intercreditor Agreement or Secured Debt Agreement, or which could reasonably be
expected to have the effect of impairing the value of the Collateral or any part thereof or the
position or interests of the Pledgee or any other Secured Creditor in the Collateral, unless
expressly permitted by the terms of the Intercreditor Agreement or the Credit Documents. All such
rights of each Pledgor to vote and to give consents, waivers and ratifications shall cease in case
an Event of Default has occurred and is continuing, and Section 7 hereof shall become applicable.




          6. DIVIDENDS AND OTHER DISTRIBUTIONS. Subject to the terms of the Intercreditor Agreement,
unless and until there shall have occurred and be continuing an Event of Default, all cash
dividends, cash distributions, cash Proceeds and other cash amounts payable in respect of the
Collateral shall be paid to the respective Pledgor, provided that all cash dividends
payable in respect of the Pledged Stock which are determined by the Pledgee to represent in whole
or in part an extraordinary, liquidating or other distribution in return of capital shall be paid,
to the extent so determined to represent an extraordinary, liquidating or other distribution in
return of capital, to the Pledgee and retained by it as part of the Collateral. Subject to the
terms of the Intercreditor Agreement, the Pledgee shall be entitled to receive directly, and to
retain as part of the Collateral, subject to the other terms of this Agreement:





     (i) all other or additional stock, notes, certificates, limited liability company
interests, partnership interests, instruments or other securities or property (including,
but not limited to, cash dividends other than as set forth above) paid or distributed by way
of dividend or otherwise in respect of the Collateral;




     (ii) all other or additional stock, notes, certificates, limited liability company
interests, partnership interests, instruments or other securities or property (including,
but not limited to, cash (although such cash may be paid directly to the respective Pledgor
so long as no Event of Default then exists)) paid or distributed in respect of the
Collateral by



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way of stock-split, spin-off, split-up, reclassification, combination of shares or
similar rearrangement; and




     (iii) all other or additional stock, notes, certificates, limited liability company
interests, partnership interests, instruments or other securities or property (including,
but not limited to, cash) which may be paid in respect of the Collateral by reason of any
consolidation, merger, exchange of stock, conveyance of assets, liquidation or similar
corporate or other reorganization.


Except as set forth in the Intercreditor Agreement, nothing contained in this Section 6 shall limit
or restrict in any way the Pledgee’s right to receive the proceeds of the Collateral in any form in
accordance with Section 3 of this Agreement. To the extent not inconsistent with the terms of the
Intercreditor Agreement, all dividends, distributions or other payments which are received by any
Pledgor contrary to the provisions of this Section 6 or Section 7 hereof shall be received in trust
for the benefit of the Pledgee, shall be segregated from other property or funds of such Pledgor
and shall be forthwith paid over to the Pledgee as Collateral in the same form as so received (with
any necessary endorsement).




          7. REMEDIES IN CASE OF AN EVENT OF DEFAULT OR A SPECIFIED DEFAULT.




          (a) If there shall have occurred and be continuing an Event of Default, then and in every such
case, to the extent not inconsistent with the terms of the Intercreditor Agreement, the Pledgee
shall be entitled to exercise all of the rights, powers and remedies (whether vested in it by this
Agreement, any other Secured Debt Agreement or by law) for the protection and enforcement of its
rights in respect of the Collateral, and the Pledgee shall be entitled to exercise all the rights
and remedies of a secured party under the UCC as in effect in any relevant jurisdiction and also
shall be entitled, without limitation, to exercise the following rights, which each Pledgor hereby
agrees to be commercially reasonable:





     (i) to receive all amounts payable in respect of the Collateral otherwise payable under
Section 6 hereof to the respective Pledgor;




     (ii) to transfer all or any part of the Collateral into the Pledgee’s name or the name
of its nominee or nominees;




     (iii) to accelerate any Pledged Note which may be accelerated in accordance with its
terms, and take any other lawful action to collect upon any Pledged Note (including, without
limitation, to make any demand for payment thereon);




     (iv) to vote (and exercise all rights and powers in respect of voting) all or any part
of the Collateral (whether or not transferred into the name of the Pledgee) and give all
consents, waivers and ratifications in respect of the Collateral and otherwise act with
respect thereto as though it were the outright owner thereof (each Pledgor hereby
irrevocably constituting and appointing the Pledgee the proxy and attorney-in-fact of such
Pledgor, with full power of substitution to do so);



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     (v) at any time and from time to time to sell, assign and deliver, or grant options to
purchase, all or any part of the Collateral, or any interest therein, at any public or
private sale, without demand of performance, advertisement or, notice of intention to sell
or of the time or place of sale or adjournment thereof or to redeem or otherwise purchase or
dispose (all of which are hereby waived by each Pledgor), for cash, on credit or for other
property, for immediate or future delivery without any assumption of credit risk, and for
such price or prices and on such terms as the Pledgee in its absolute discretion may
determine, provided at least 10 days’ written notice of the time and place of any
such sale shall be given to the respective Pledgor. The Pledgee shall not be obligated to
make any such sale of Collateral regardless of whether any such notice of sale has
theretofore been given. Each Pledgor hereby waives and releases to the fullest extent
permitted by law any right or equity of redemption with respect to the Collateral, whether
before or after sale hereunder, and all rights, if any, of marshalling the Collateral and
any other security or the Obligations or otherwise. At any such sale, unless prohibited by
applicable law, the Pledgee on behalf of the Secured Creditors may bid for and purchase all
or any part of the Collateral so sold free from any such right or equity of redemption.
Neither the Pledgee nor any other Secured Creditor shall be liable for failure to collect or
realize upon any or all of the Collateral or for any delay in so doing nor shall any of them
be under any obligation to take any action whatsoever with regard thereto; and




     (vi) to set off any and all Collateral against any and all Obligations, and to withdraw
any and all cash or other Collateral from any and all Collateral Accounts and to apply such
cash and other Collateral to the payment of any and all Obligations.



          (b) If there shall have occurred and be continuing a Specified Default, then and in every such
case, the Pledgee shall be entitled to vote (and exercise all rights and powers in respect of
voting) all or any part of the Collateral (whether or not transferred into the name of the Pledgee)
and give all consents, waivers and ratifications in respect of the Collateral and otherwise act
with respect thereto as though it were the outright owner thereof (each Pledgor hereby irrevocably
constituting and appointing the Pledgee the proxy and attorney-in-fact of such Pledgor, with full
power of substitution to do so).




          8. REMEDIES, CUMULATIVE, ETC. Subject to the terms of (and to the extent not inconsistent
with) the Intercreditor Agreement, each and every right, power and remedy of the Pledgee provided
for in this Agreement or in any other Secured Debt Agreement, or now or hereafter existing at law
or in equity or by statute shall be cumulative and concurrent and shall be in addition to every
other such right, power or remedy. The exercise or beginning of the exercise by the Pledgee or any
other Secured Creditor of any one or more of the rights, powers or remedies provided for in this
Agreement or any other Secured Debt Agreement (including, without limitation, the Intercreditor
Agreement) or now or hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the Pledgee or any other Secured Creditor of all
such other rights, powers or remedies, and no failure or delay on the part of the Pledgee or any
other Secured Creditor to exercise any such right, power or remedy shall operate as a waiver
thereof. No notice to or demand on any Pledgor in any case shall entitle it to any other or
further notice or demand in similar or other circumstances or constitute a waiver of any of the
rights of the Pledgee or any other Secured Creditor to any other or further






-17-









 







action in any circumstances without notice or demand. The Secured Creditors agree that this
Agreement may be enforced only by the action of the Pledgee, in each case, acting upon the
instructions of the Required Secured Creditors, and that no other Secured Creditor shall have any
right individually to seek to enforce or to enforce this Agreement or to realize upon the security
to be granted hereby, it being understood and agreed that such rights and remedies may be exercised
by the Pledgee for the benefit of the Secured Creditors upon the terms of this Agreement and the
Security Agreement.




          9. APPLICATION OF PROCEEDS.




          (a) Subject to the terms of the Intercreditor Agreement, all monies collected by the Pledgee
upon any sale or other disposition of the Collateral pursuant to the terms of this Agreement,
together with all other monies received by the Pledgee hereunder, shall be applied in the manner
provided in Section 7.4 of the Security Agreement.




          (b) It is understood that the Pledgors shall remain jointly and severally liable to the extent
of any deficiency between the amount of the proceeds of the Collateral and the aggregate amount of
the Obligations.




          (c) It is understood and agreed by all parties hereto that the Pledgee shall have no liability
for any determinations made by it in this Section 9 (including, without limitation, as to whether
given Collateral constitutes TL Priority Collateral or ABL Priority Collateral), in each case
except to the extent resulting from the gross negligence or willful misconduct of the Pledgee (as
determined by a court of competent jurisdiction in a final and non-appealable decision). The
parties also agree that the Pledgee may (but shall not be required to), at any time and in its sole
discretion, and with no liability resulting therefrom, petition a court of competent jurisdiction
regarding any application of Collateral in accordance with the requirements hereof and of the
Intercreditor Agreement, and the Pledgee shall be entitled to wait for, and may conclusively rely
on, any such determination.




          10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the Pledgee hereunder
(whether by virtue of the power of sale herein granted, pursuant to judicial process or otherwise),
the receipt of the Pledgee or the officer making such sale shall be a sufficient discharge to the
purchaser or purchasers of the Collateral so sold, and such purchaser or purchasers shall not be
obligated to see to the application of any part of the purchase money paid over to the Pledgee or
such officer or be answerable in any way for the misapplication or nonapplication thereof.




          11. INDEMNITY. Each Pledgor jointly and severally agrees (i) to indemnify, reimburse and hold
harmless the Pledgee and each other Secured Creditor and their respective successors, assigns,
employees, agents and affiliates (individually an “Indemnitee”, and collectively, the
“Indemnitees”) from and against any and all obligations, damages, injuries, penalties,
claims, demands, losses, judgments and liabilities (including, without limitation, liabilities for
penalties) of whatsoever kind or nature, and (ii) to reimburse each Indemnitee for all reasonable
costs, expenses and disbursements, including reasonable attorneys’ fees and expenses, in each case
arising out of or resulting from this Agreement or the exercise by any Indemnitee of any right or
remedy granted to it hereunder or under any other Credit Documents (but excluding any






-18-









 







obligations, damages, injuries, penalties, claims, demands, losses, judgments and liabilities
(including, without limitation, liabilities for penalties) or expenses of whatsoever kind or nature
to the extent incurred or arising by reason of gross negligence or willful misconduct of such
Indemnitee (as determined by a court of competent jurisdiction in a final and non-appealable
decision)). In no event shall the Pledgee hereunder be liable, in the absence of gross negligence
or willful misconduct on its part (as determined by a court of competent jurisdiction in a final
and non-appealable decision), for any matter or thing in connection with this Agreement other than
to account for monies or other property actually received by it in accordance with the terms
hereof. If and to the extent that the obligations of any Pledgor under this Section 11 are
unenforceable for any reason, such Pledgor hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under applicable law. The
indemnity obligations of each Pledgor contained in this Section 11 shall continue in full force and
effect notwithstanding the full payment of all the Notes issued under the Credit Agreement, the
termination of all Letters of Credit, and the payment of all other Obligations and notwithstanding
the discharge thereof and the occurrence of the Termination Date.




          12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER.




          (a) Nothing herein shall be construed to make the Pledgee or any other Secured Creditor liable
as a member of any limited liability company or as a partner of any partnership and neither the
Pledgee nor any other Secured Creditor by virtue of this Agreement or otherwise (except as referred
to in the following sentence) shall have any of the duties, obligations or liabilities of a member
of any limited liability company or as a partner in any partnership. The parties hereto expressly
agree that, unless the Pledgee shall become the absolute owner of Collateral consisting of a
Limited Liability Company Interest or a Partnership Interest pursuant hereto, this Agreement shall
not be construed as creating a partnership or joint venture among the Pledgee, any other Secured
Creditor, any Pledgor and/or any other Person.




          (b) Except as provided in the last sentence of paragraph (a) of this Section 12, the Pledgee,
by accepting this Agreement, did not intend to become a member of any limited liability company or
a partner of any partnership or otherwise be deemed to be a co-venturer with respect to any
Pledgor, any limited liability company, partnership and/or any other Person either before or after
an Event of Default shall have occurred. The Pledgee shall have only those powers set forth herein
and the Secured Creditors shall assume none of the duties, obligations or liabilities of a member
of any limited liability company or as a partner of any partnership or any Pledgor except as
provided in the last sentence of paragraph (a) of this Section 12.




          (c) The Pledgee and the other Secured Creditors shall not be obligated to perform or discharge
any obligation of any Pledgor as a result of the pledge hereby effected.




          (d) The acceptance by the Pledgee of this Agreement, with all the rights, powers, privileges
and authority so created, shall not at any time or in any event obligate the Pledgee or any other
Secured Creditor to appear in or defend any action or proceeding relating to the Collateral to
which it is not a party, or to take any action hereunder or thereunder, or to expend any money or
incur any expenses or perform or discharge any obligation, duty or liability under the Collateral.







-19-









 








          13. FURTHER ASSURANCES; POWER-OF-ATTORNEY.




          (a) Each Pledgor agrees that it will join with the Pledgee in executing and, at such Pledgor’s
own expense, file and refile under the UCC or other applicable law such financing statements,
continuation statements and other documents, in form reasonably acceptable to the Pledgee, in such
offices as the Pledgee (acting on its own or on the instructions of the Required Secured Creditors)
may reasonably deem necessary or appropriate and wherever required or permitted by law in order to
perfect and preserve the Pledgee’s security interest in the Collateral hereunder and hereby
authorizes the Pledgee to file financing statements and amendments thereto relative to all or any
part of the Collateral (including, without limitation, financing statements which list the
Collateral specifically and/or “all assets” as collateral) without the signature of such Pledgor
where permitted by law, and agrees to do such further acts and things and to execute and deliver to
the Pledgee such additional conveyances, assignments, agreements and instruments as the Pledgee may
reasonably require or deem advisable to carry into effect the purposes of this Agreement or to
further assure and confirm unto the Pledgee its rights, powers and remedies hereunder or
thereunder.




          (b) Each Pledgor hereby constitutes and appoints the Pledgee its true and lawful
attorney-in-fact, irrevocably, with full authority in the place and stead of such Pledgor and in
the name of such Pledgor or otherwise, from time to time after the occurrence and during the
continuance of an Event of Default, in the Pledgee’s discretion, to act, require, demand, receive
and give acquittance for any and all monies and claims for monies due or to become due to such
Pledgor under or arising out of the Collateral, to endorse any checks or other instruments or
orders in connection therewith and to file any claims or take any action or institute any
proceedings and to execute any instrument which the Pledgee may deem necessary or advisable to
accomplish the purposes of this Agreement, which appointment as attorney is coupled with an
interest.




          14. THE PLEDGEE AS COLLATERAL AGENT. Subject to the terms of the Intercreditor Agreement, the
Pledgee will hold in accordance with this Agreement all items of the Collateral at any time
received under this Agreement. It is expressly understood, acknowledged and agreed by each Secured
Creditor that by accepting the benefits of this Agreement each such Secured Creditor acknowledges
and agrees that the obligations of the Pledgee as holder of the Collateral and interests therein
and with respect to the disposition thereof, and otherwise under this Agreement, are only those
expressly set forth in this Agreement and in Annex O to the Security Agreement hereto. The Pledgee
shall act hereunder on the terms and conditions set forth herein and in Annex O to the Security
Agreement, the terms of which shall be deemed incorporated herein by reference as fully as if the
same were set forth herein in its entirety.




          15. TRANSFER BY THE PLEDGORS. Except as permitted pursuant to the Credit Agreement, no
Pledgor will sell or otherwise dispose of, grant any option with respect to, or mortgage, pledge or
otherwise encumber any of the Collateral or any interest therein.




          16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS.




          (a) Each Pledgor represents, warrants and covenants as to itself and each of its Subsidiaries
that:







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     (i) it is the legal, beneficial and record owner of, and has good and marketable title
to, all of its Collateral consisting of one or more Securities, Partnership Interests and
Limited Liability Company Interests and that it has sufficient ownership interest in all of
its Collateral in which a security interest is purported to be created hereunder for such
security interest to attach (subject, in each case, to no pledge, lien, mortgage,
hypothecation, security interest, charge, option, Adverse Claim or other encumbrance
whatsoever, except the liens and security interests created by this Agreement or permitted
under the Secured Debt Agreements);




     (ii) it has full Company power, authority and legal right to pledge all the Collateral
pledged by it pursuant to this Agreement;




     (iii) this Agreement has been duly authorized, executed and delivered by such Pledgor
and constitutes a legal, valid and binding obligation of such Pledgor enforceable against
such Pledgor in accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors’ rights generally and by general equitable principles
(regardless of whether enforcement is sought in equity or at law);




     (iv) except to the extent already obtained or made, no consent of any other party
(including, without limitation, any stockholder, partner, member or creditor of such Pledgor
or any of its Subsidiaries) and no consent, license, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or declaration with, any
governmental authority is required to be obtained by such Pledgor in connection with (a) the
execution, delivery or performance of this Agreement by such Pledgor, (b) the validity or
enforceability of this Agreement against such Pledgor (except as set forth in clause (iii)
above), (c) the perfection or enforceability of the Pledgee’s security interest in such
Pledgor’s Collateral or (d) except for compliance with or as may be required by applicable
securities laws, the exercise by the Pledgee of any of its rights or remedies provided
herein;




     (v) neither the execution, delivery or performance by such Pledgor of this Agreement,
or any other Secured Debt Agreement to which it is a party, nor compliance by it with the
terms and provisions hereof and thereof nor the consummation of the transactions
contemplated therein: (i) will contravene any material provision of any applicable law,
statute, rule or regulation, or any applicable order, writ, injunction or decree of any
court, arbitrator or governmental instrumentality, domestic or foreign, applicable to such
Pledgor; (ii) will conflict or be inconsistent with or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default under, or result in
the creation or imposition of (or the obligation to create or impose) any Lien (except
pursuant to the Security Documents) upon any of the material properties or assets of such
Pledgor or any of its Subsidiaries pursuant to the terms of any indenture, lease, mortgage,
deed of trust, credit agreement, loan agreement or any other material agreement, contract or
other instrument to which such Pledgor or any of its Subsidiaries is a party or is otherwise
bound, or by which it or any of its material properties or assets is bound or to which it
may be subject; or (iii) will violate any provision of the certificate of incorporation, by-



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laws, certificate of partnership, partnership agreement, certificate of formation or
limited liability company agreement (or equivalent organizational documents), as the case
may be, of such Pledgor or any of its Subsidiaries;




     (vi) all of such Pledgor’s Collateral consisting of Securities, Limited Liability
Company Interests and Partnership Interests has been duly and validly issued, is fully paid
and non-assessable and is subject to no options to purchase or similar rights;




     (vii) to such Pledgor’s knowledge, each of such Pledgor’s Pledged Notes constitutes, or
when executed by the obligor thereof will constitute, the legal, valid and binding
obligation of such obligor, enforceable in accordance with its terms, except to the extent
that the enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors’ rights generally and
by general equitable principles (regardless of whether enforcement is sought in equity or at
law);




     (viii) the pledge, collateral assignment and delivery to the Pledgee of such Pledgor’s
Collateral consisting of Certificated Securities and Pledged Notes pursuant to this
Agreement creates a valid and perfected first priority security interest in such
Certificated Securities and Pledged Notes, and the proceeds thereof, subject to no prior
Lien or encumbrance or to any agreement purporting to grant to any third party a Lien or
encumbrance on the property or assets of such Pledgor which would include the Securities
(other than the liens and security interests permitted under the Credit Documents then in
effect) and the Pledgee is entitled to all the rights, priorities and benefits afforded by
the UCC or other relevant law as enacted in any relevant jurisdiction to perfect security
interests in respect of such Collateral; and




     (ix) “control” (as defined in Section 8-106 of the UCC) has been obtained by the
Pledgee over all of such Pledgor’s Collateral consisting of Securities (including, without
limitation, Pledged Notes which are Securities) with respect to which such “control” may be
obtained pursuant to Section 8-106 of the UCC, except to the extent that the obligation of
the applicable Pledgor to provide the Pledgee with “control” of such Collateral has not yet
arisen under this Agreement; provided that in the case of the Pledgee obtaining
“control” over Collateral consisting of a Security Entitlement, such Pledgor shall have
taken all steps in its control so that the Pledgee obtains “control” over such Security
Entitlement.



          (b) Each Pledgor covenants and agrees that it will defend the Pledgee’s right, title and
security interest in and to such Pledgor’s Collateral and the proceeds thereof against the claims
and demands of all persons whomsoever; and each Pledgor covenants and agrees that it will have like
title to and right to pledge any other property at any time hereafter pledged to the Pledgee by
such Pledgor as Collateral hereunder and will likewise defend the right thereto and security
interest therein of the Pledgee and the other Secured Creditors.




          (c) Each Pledgor covenants and agrees that it will take no action which would violate any of
the terms of any Credit Document.







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          17. LEGAL NAMES; TYPE OF ORGANIZATION (AND WHETHER A REGISTERED ORGANIZATION AND/OR A
TRANSMITTING UTILITY); JURISDICTION OF ORGANIZATION; LOCATION; ORGANIZATIONAL IDENTIFICATION
NUMBERS; CHANGES THERETO; ETC. The exact legal name of each Initial Pledgor, the type of
organization of such Initial Pledgor, whether or not such Initial Pledgor is a Registered
Organization, the jurisdiction of organization of such Initial Pledgor, such Initial Pledgor’s
Location, the organizational identification number (if any) of such Initial Pledgor, and whether or
not such Initial Pledgor is a Transmitting Utility, is listed on Annex A hereto for such Initial
Pledgor as of the Effective Date. No Pledgor shall change its legal name, its type of
organization, its status as a Registered Organization (in the case of a Registered Organization),
its status as a Transmitting Utility or as a Person which is not a Transmitting Utility, as the
case may be, its jurisdiction of organization, its Location, or its organizational identification
number (if any), except that any such changes shall be permitted (so long as not in violation of
the applicable requirements of the Credit Documents and so long as same do not involve (x) a
Registered Organization ceasing to constitute same or (y) any Pledgor changing its jurisdiction of
organization or Location from the United States or a State thereof to a jurisdiction of
organization or Location, as the case may be, outside the United States or a State thereof) if (i)
it shall have given to the Collateral Agent not less than 15 days’ prior written notice of each
change to the information listed on Annex A (as adjusted for any subsequent changes thereto
previously made in accordance with this sentence), together with a supplement to Annex A which
shall correct all information contained therein for such Pledgor, and (ii) in connection with the
respective change or changes, it shall have taken all action reasonably requested by the Collateral
Agent to maintain the security interests of the Collateral Agent in the Collateral intended to be
granted hereby at all times fully perfected and in full force and effect. In addition, to the
extent that any Pledgor does not have an organizational identification number on the date hereof
and later obtains one, such Pledgor shall promptly thereafter deliver a notification of the
Collateral Agent of such organizational identification number and shall take all actions reasonably
satisfactory to the Collateral Agent to the extent necessary to maintain the security interest of
the Collateral Agent in the Collateral intended to be granted hereby fully perfected and in full
force and effect.




          18. PLEDGORS’ OBLIGATIONS ABSOLUTE, ETC. The obligations of each Pledgor under this Agreement
shall be absolute and unconditional and shall remain in full force and effect without regard to,
and shall not be released, suspended, discharged, terminated or otherwise affected by, any
circumstance or occurrence whatsoever (other than termination of this Agreement pursuant to Section
20 hereof), including, without limitation:





     (i) any renewal, extension, amendment or modification of, or addition or supplement to
or deletion from any Secured Debt Agreement (other than this Agreement in accordance with
its terms), or any other instrument or agreement referred to therein, or any assignment or
transfer of any thereof;




     (ii) any waiver, consent, extension, indulgence or other action or inaction under or in
respect of any such agreement or instrument including, without limitation, this Agreement
(other than a waiver, consent or extension with respect to this Agreement in accordance with
its terms);



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     (iii) any furnishing of any additional security to the Pledgee or its assignee or any
acceptance thereof or any release of any security by the Pledgee or its assignee;




     (iv) any limitation on any party’s liability or obligations under any such instrument
or agreement or any invalidity or unenforceability, in whole or in part, of any such
instrument or agreement or any term thereof; or




     (v) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to any Pledgor or any Subsidiary of any
Pledgor, or any action taken with respect to this Agreement by any trustee or receiver, or
by any court, in any such proceeding, whether or not such Pledgor shall have notice or
knowledge of any of the foregoing.



          19. SALE OF COLLATERAL WITHOUT REGISTRATION.




          (a) If an Event of Default shall have occurred and be continuing and any Pledgor shall have
received from the Pledgee a written request or requests that such Pledgor cause any registration,
qualification or compliance under any federal or state securities law or laws to be effected with
respect to all or any part of the Collateral consisting of Securities, Limited Liability Company
Interests or Partnership Interests, such Pledgor as soon as practicable and at its expense will use
its best efforts to cause such registration to be effected (and be kept effective) and will use its
best efforts to cause such qualification and compliance to be effected (and be kept effective) as
may be so requested and as would permit or facilitate the sale and distribution of such Collateral
consisting of Securities, Limited Liability Company Interests or Partnership Interests, including,
without limitation, registration under the Securities Act, as then in effect (or any similar
statute then in effect), appropriate qualifications under applicable blue sky or other state
securities laws and appropriate compliance with any other governmental requirements; provided that
the Pledgee shall furnish to such Pledgor such information regarding the Pledgee as such Pledgor
may request in writing and as shall be required in connection with any such registration,
qualification or compliance. Each Pledgor will cause the Pledgee to be kept reasonably advised in
writing as to the progress of each such registration, qualification or compliance and as to the
completion thereof, will furnish to the Pledgee such number of prospectuses, offering circulars and
other documents incident thereto as the Pledgee from time to time may reasonably request, and will
indemnify, to the extent permitted by law, the Pledgee and all other Secured Creditors
participating in the distribution of such Collateral consisting of Securities, Limited Liability
Company Interests or Partnership Interests against all claims, losses, damages and liabilities
caused by any untrue statement (or alleged untrue statement) of a material fact contained therein
(or in any related registration statement, notification or the like) or by any omission (or alleged
omission) to state therein (or in any related registration statement, notification or the like) a
material fact required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same may have been caused by an untrue statement or omission
based upon information furnished in writing to such Pledgor by the Pledgee or such other Secured
Creditor expressly for use therein.




          (b) If at any time when the Pledgee shall determine to exercise its right to sell all or any
part of the Collateral consisting of Securities, Limited Liability Company Interests or Partnership
Interests pursuant to Section 7 hereof, and such Collateral or the part thereof to be






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sold shall not, for any reason whatsoever, be effectively registered under the Securities Act,
as then in effect, the Pledgee may, in its sole and absolute discretion, sell such Collateral or
part thereof by private sale in such manner and under such circumstances as the Pledgee may deem
necessary or advisable in order that such sale may legally be effected without such registration.
Without limiting the generality of the foregoing, in any such event the Pledgee, in its sole and
absolute discretion (i) may proceed to make such private sale notwithstanding that a registration
statement for the purpose of registering such Collateral or part thereof shall have been filed
under such Securities Act, (ii) may approach and negotiate with a single possible purchaser to
effect such sale, and (iii) may restrict such sale to a purchaser who will represent and agree that
such purchaser is purchasing for its own account, for investment, and not with a view to the
distribution or sale of such Collateral or part thereof. In the event of any such sale, the
Pledgee shall incur no responsibility or liability for selling all or any part of the Collateral at
a price which the Pledgee, in its sole and absolute discretion, may in good faith deem reasonable
under the circumstances, notwithstanding the possibility that a substantially higher price might be
realized if the sale were deferred until the registration as aforesaid.




          20. TERMINATION; RELEASE.




          (a) On the Termination Date (as defined below), this Agreement shall terminate
(provided that all indemnities set forth herein including, without limitation, in Section
11 hereof shall survive any such termination) and the Pledgee, at the request and expense of such
Pledgor, will execute and deliver to such Pledgor a proper instrument or instruments (including UCC
termination statements) acknowledging the satisfaction and termination of this Agreement
(including, without limitation, UCC termination statements and instruments of satisfaction,
discharge and/or reconveyance), and will, subject to the provisions of the Intercreditor Agreement,
duly release from the security interest created hereby and assign, transfer and deliver to such
Pledgor (without recourse and without any representation or warranty) such of the Collateral as may
be in the possession of the Pledgee or any of its sub-agents hereunder and as has not theretofore
been sold or otherwise applied or released pursuant to this Agreement, together with any moneys at
the time held by the Pledgee or any of its sub-agents hereunder and, with respect to any Collateral
consisting of an Uncertificated Security, a Partnership Interest or a Limited Liability Company
Interest (other than an Uncertificated Security, Partnership Interest or Limited Liability Company
Interest credited on the books of a Clearing Corporation or Securities Intermediary), a termination
of the agreement relating thereto executed and delivered by the issuer of such Uncertificated
Security pursuant to Section 3.2(a)(ii) or by the respective partnership or limited liability
company pursuant to Section 3.2(a)(iv)(2). As used in this Agreement, “Termination Date”
shall mean the date upon which the Obligations Termination Date shall have occurred.




          (b) In the event that any part of the Collateral is sold or otherwise disposed of (to a Person
other than a Credit Party), in connection with a sale or disposition permitted by Section 10.02 of
the Credit Agreement, or is otherwise released at the direction of the Required Lenders (or all the
Lenders if required by Section 13.12 of the Credit Agreement) and the proceeds of such sale or
disposition (or from such release) are applied in accordance with the terms of the Credit Agreement
to the extent required to be so applied, the Pledgee, at the request and expense of such Pledgor,
will duly release from the security interest created hereby (and will






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execute and deliver such documentation, including termination or partial release statements
and the like in connection therewith) and assign, transfer and deliver to such Pledgor (without
recourse and without any representation or warranty) such of the Collateral as is then being (or
has been) so sold or otherwise disposed of, or released, and as may be in the possession of the
Pledgee (or, in the case of Collateral held by any sub-agent designated pursuant to Section 4
hereof, such sub-agent) and has not theretofore been released pursuant to this Agreement.
Furthermore, upon the release of any Subsidiary Guarantor from the Subsidiaries Guaranty in
accordance with the provisions thereof, such Pledgor (and the Collateral at such time assigned by
the respective Pledgor pursuant hereto) shall be released from this Agreement. Notwithstanding
anything to the contrary contained above in this clause (b), at the time of each release of
Collateral pursuant to this clause (b), the Pledgor requesting such release shall certify to the
Pledgee that, at the time of such release and immediately after giving effect thereto (and to the
sale of the respective Collateral), either (x) no Obligations are or will be then due and payable
or (y) that all Obligations which will then be due and payable shall be paid on such date in
accordance with the requirements of the respective Secured Debt Agreement(s).




          (c) At any time that any Pledgor desires that Collateral be released as provided in the
foregoing Section 20(a) or (b), such Pledgor shall deliver to the Pledgee (and the relevant
sub-agent, if any, designated pursuant to Section 4 hereof) a certificate signed by an officer of
such Pledgor stating that the release of the respective Collateral is permitted pursuant to Section
20(a) or (b) hereof. At any time that the Borrower or the respective Pledgor desires that a
Subsidiary of the Borrower which has been released from the Subsidiaries Guaranty be released
hereunder as provided in the penultimate sentence of Section 20(b), it shall deliver to the Pledgee
a certificate signed by an officer of the Borrower and the respective Pledgor stating that the
release of the respective Pledgor (and its Collateral) is permitted pursuant to such Section 20(b).
If reasonably requested by the Pledgee (although the Pledgee shall have no obligation to make any
such request), the respective Pledgor shall furnish appropriate legal opinions (from counsel,
reasonably acceptable to the Pledgee) to the effect set forth in the immediately preceding
sentence.




          (d) The Pledgee shall have no liability whatsoever to any other Secured Creditor as the result
of any release of Collateral by it in accordance with, or which the Collateral Agent believes to be
in accordance with, this Section 20.




          21. NOTICES, ETC. Except as otherwise specified herein, all notices, requests, demands or
other communications to or upon the respective parties hereto shall be sent or delivered by mail,
telegraph, telex, telecopy, cable or courier service and all such notices and communications shall,
when mailed, telegraphed, telexed, telecopied, or cabled or sent by courier, be effective when
deposited in the mails, delivered to the telegraph company, cable company or overnight courier, as
the case may be, or sent by telex or telecopier, except that notices and communications to the
Pledgee or any Pledgor shall not be effective until received by the Pledgee or such Pledgor, as the
case may be. All notices and other communications shall be in writing and addressed as follows:




          (a) if to any Pledgor, at its address set forth opposite its signature below;




          (b) if to the Pledgee, at:







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60 Wall Street

New York, NY 10005

Attention: Scottye Lindsey

Telephone No.: 212-250-6150

Telecopier No.: 212-797-4645





     (c) if to any Secured Creditor, either (x) to the Administrative Agent, at the address
of the Administrative Agent specified in the Credit Agreement, or (y) at such address as
such Secured Creditor shall have specified in the Credit Agreement;


or at such other address or addressed to such other individual as shall have been furnished in
writing by any Person described above to the party required to give notice hereunder.




          22. WAIVER; AMENDMENT. None of the terms and conditions of this Agreement may be changed,
waived, modified or varied in any manner whatsoever unless in writing duly signed by each Pledgor
directly and adversely affected thereby and the Pledgee (with the consent of the Required Secured
Creditors).




          23. SUCCESSORS AND ASSIGNS. This Agreement shall create a continuing security interest in the
Collateral and shall (i) remain in full force and effect, subject to release and/or termination as
set forth in Section 20, (ii) be binding upon each Pledgor, its successors and assigns;
provided, however, that no Pledgor shall assign any of its rights or obligations
hereunder without the prior written consent of the Pledgee (with the consent of the Required
Secured Creditors), and (iii) inure, together with the rights and remedies of the Pledgee
hereunder, to the benefit of the Pledgee, the other Secured Creditors and their respective
successors, transferees and assigns. All agreements, statements, representations and warranties
made by each Pledgor herein or in any certificate or other instrument delivered by such Pledgor or
on its behalf under this Agreement shall be considered to have been relied upon by the Secured
Creditors and shall survive the execution and delivery of this Agreement and the other Secured Debt
Agreements regardless of any investigation made by the Secured Creditors or on their behalf.




          24. HEADINGS DESCRIPTIVE. The headings of the several Sections of this Agreement are inserted
for convenience only and shall not in any way affect the meaning or construction of any provision
of this Agreement.




          25. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.




          (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED
IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS
OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH
CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH PLEDGOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND






-27-









 







UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH PLEDGOR HEREBY
FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH
PLEDGOR, AND AGREES NOT TO PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH COURT
LACKS PERSONAL JURISDICTION OVER SUCH PLEDGOR. EACH PLEDGOR FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ANY SUCH PLEDGOR AT
ITS ADDRESS FOR NOTICES AS PROVIDED IN SECTION 21 ABOVE, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS
AFTER SUCH MAILING. EACH PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF
PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING
COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SUCH SERVICE OF PROCESS WAS IN ANY WAY
INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE PLEDGEE UNDER THIS AGREEMENT,
OR ANY SECURED CREDITOR, TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY PLEDGOR IN ANY OTHER JURISDICTION.




          (b) EACH PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a)
ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT
ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.




          (c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.




          26. PLEDGOR’S DUTIES. It is expressly agreed, anything herein contained to the contrary
notwithstanding, that each Pledgor shall remain liable to perform all of the obligations, if any,
assumed by it with respect to the Collateral and the Pledgee shall not have any obligations or
liabilities with respect to any Collateral by reason of or arising out of this Agreement, except
for the safekeeping of Collateral actually in Pledgor’s possession, nor shall the Pledgee be
required or obligated in any manner to perform or fulfill any of the obligations of any Pledgor
under or with respect to any Collateral.







-28-









 








          27. COUNTERPARTS. This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so executed and delivered
shall be an original, but all of which shall together constitute one and the same instrument. A
set of counterparts executed by all the parties hereto shall be lodged with each Pledgor and the
Pledgee.




          28. SEVERABILITY. Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.




          29. RECOURSE. This Agreement is made with full recourse to each Pledgor and pursuant to and
upon all the representations, warranties, covenants and agreements on the part of such Pledgor
contained herein and in the other Secured Debt Agreements and otherwise in writing in connection
herewith or therewith.




          30. ADDITIONAL PLEDGORS. It is understood and agreed that any Subsidiary of the Company that
is required to become a party to this Agreement after the date hereof pursuant to the requirements
of the Credit Agreement or any other Credit Document, shall become a Pledgor hereunder by (x)
executing a counterpart hereof and delivering same to the Pledgee, (y) delivering supplements to
Annexes A through G hereto as are necessary to cause such annexes to be complete and accurate with
respect to such additional Pledgor on such date and (z) taking all actions as specified in this
Agreement as would have been taken by such Pledgor had it been an original party to this Agreement,
in each case with all documents required above to be delivered to the Pledgee and with all
documents and actions required above to be taken to the reasonable satisfaction of the Pledgee.




          31. LIMITED OBLIGATIONS. It is the desire and intent of each Pledgor and the Secured
Creditors that this Agreement shall be enforced against each Pledgor to the fullest extent
permissible under the laws applied in each jurisdiction in which enforcement is sought.
Notwithstanding anything to the contrary contained herein, in furtherance of the foregoing, it is
noted that the obligations of each Pledgor constituting a Subsidiary Guarantor have been limited as
provided in the Subsidiaries Guaranty.




          32. RELEASE OF PLEDGORS. If at any time all of the Equity Interests of any Pledgor owned by
the Borrower or any of its Subsidiaries are sold (to a Person other than the Borrower or any of its
Wholly-Owned Subsidiaries) in a transaction permitted pursuant to the Credit Agreement (and which
does not violate the terms of any other Secured Debt Agreement then in effect), then, at the
request and expense of the Borrower, the respective Pledgor shall be released as a Pledgor pursuant
to this Agreement without any further action hereunder (it being understood that the sale of all of
the Equity Interests in any Person that owns, directly or indirectly, all of the Equity Interests
in any Pledgor shall be deemed to be a sale of all of the Equity Interests in such Pledgor for
purposes of this Section), and the Pledgee is authorized and directed to execute and deliver such
instruments of release as are reasonably satisfactory to it. At any time that the Borrower desires
that a Pledgor be released from this Agreement as provided in this Section 32, the Borrower shall
deliver to the Pledgee a certificate signed by an officer of the Bor–






-29-









 







rower stating that the release of the respective Pledgor is permitted pursuant to this Section
32. If reasonably requested by Pledgee (although the Pledgee shall have no obligation to make any
such request), the Borrower shall furnish legal opinions (from counsel acceptable to the Pledgee)
to the effect set forth in the immediately preceding sentence. The Pledgee shall have no liability
whatsoever to any other Secured Creditor as a result of the release of any Pledgor by it in
accordance with, or which it believes to be in accordance with, this Section 32.




* * * *









-30-









 








Exhibit E to

Amendment No. 3




[Signature Pages Intentionally Omitted]









 









 








Exhibit E to

Amendment No. 3




ANNEX A

to

PLEDGE AGREEMENT




SCHEDULE OF LEGAL NAMES, TYPE OF ORGANIZATION

(AND WHETHER A REGISTERED ORGANIZATION AND/OR

A TRANSMITTING UTILITY), JURISDICTION OF ORGANIZATION,

LOCATION AND ORGANIZATIONAL IDENTIFICATION NUMBERS




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Assignor’s	 	 
	 	 	 	 	Type of	 	 	 	 	 	 	 	 	 	 	 	 	 	Organization	 	 
	 	 	 	 	Organization (or,	 	 	 	 	 	 	 	 	 	 	 	 	 	Identification	 	 
	 	 	 	 	if the Assignor is	 	Registered	 	 	 	 	 	Assignor’s Location	 	Number (or, if it	 	Transmitting
	Exact Legal	 	an Individual, so	 	Organization?	 	Jurisdiction of	 	(for purposes of NY	 	has none, so	 	Utility?
	Name of Assignor	 	indicate)	 	(Yes/No)	 	Organization	 	UCC § 9-307)	 	indicate)	 	(Yes/No)





 









 






Exhibit E to

Amendment No. 3




ANNEX B

to

PLEDGE AGREEMENT




SCHEDULE OF SUBSIDIARIES




	 	 	 	 	 
	 	 	 	 	 	 	 	 	JURISDICTION
	 	 	 	 	 	 	 	 	OF
	ENTITY	 	OWNERSHIP	 	 	ORGANIZATION





 









 






Exhibit E to

Amendment No. 3




ANNEX C

to

PLEDGE AGREEMENT




SCHEDULE OF STOCK



1. Pledgor: Dole Holding Company LLC




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Sub-clause of
	Name of Issuing	 	 	 	 	 	 	 	 	 	Section 3.2(a) of
	Corporation	 	Type of Shares	 	Number of Shares	 	Certificate No.	 	Percentage Owned	 	Pledge Agreement
	Dole Food Company, 

Inc.
	 	common stock
	 	1000
	 	NY200162
	 	100%
	 	(i)





2. Pledgor: Dole Holdings, Inc.




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Sub-clause of
	Name of Issuing	 	Type of	 	 	 	Certificate	 	Percentage	 	Section 3.2(a) of
	Corporation	 	Shares	 	Number of Shares	 	No.	 	Owned	 	Pledge Agreement
	Banana Products 

Corp.
	 	common stock
	 	15.4
	 	29
	 	14%
	 	(i)






 









 






ANNEX D

to

PLEDGE AGREEMENT




SCHEDULE OF NOTES



1. BUD ANTLE, INC.




	 	 	 	 	 	 	 
	 	 	 	 	 	 	Sub-clause of
	 	 	 	 	 	 	Section 3.2(a) of
	Amount	 	Maturity Date	 	Obligor	 	Pledge Agreement
	$750,000
	 	April 7, 2004
	 	JASCO, LLC
	 	(v)





2. COOL CARE, INC.




	 	 	 	 	 	 	 
	 	 	 	 	 	 	Sub-clause of
	 	 	 	 	 	 	Section 3.2(a) of
	Amount	 	Maturity Date	 	Obligor	 	Pledge Agreement
	That amount owing 

under the 

Conditional Sales 

Contract of 

September 04,1997, 

as amended by 

the Addendum dated 

February 20, 1998
	 	As set forth in

such agreement
	 	N.A. Plus S.A.
	 	(v)






-2-









 






ANNEX E

to

PLEDGE AGREEMENT




SCHEDULE OF LIMITED LIABILITY COMPANY INTERESTS




None.



-3-









 





ANNEX F

to

PLEDGE AGREEMENT




SCHEDULE OF PARTNERSHIP INTERESTS



1.




	 	 	 	 	 	 	 
	Name of	 	Type of	 	Percentage	 	Sub-clause of Section
	Issuing Partnership	 	Interest	 	Owned	 	3.2(a) of Pledge Agreement





-4-









 






Exhibit E to

Amendment No.3




ANNEX G

to

PLEDGE AGREEMENT




SCHEDULE OF CHIEF EXECUTIVE OFFICES








 









 








Exhibit E to

Amendment No.3




ANNEX H

to

PLEDGE AGREEMENT




Form of Agreement Regarding Uncertificated Securities,

Limited Liability Company Interests and Partnership Interests




          AGREEMENT (as amended, modified, restated and/or supplemented from time to time, this
“Agreement”), dated as of [                     ___, 200_], among the undersigned pledgor (the
“Pledgor”), [                    ], not in its individual capacity but solely as Collateral Agent
(the “Pledgee”), and [                    ], as the issuer of the Uncertificated Securities, Limited
Liability Company Interests and/or Partnership Interests (each as defined below) (the
“Issuer”).




W I T N E S S E T H

:




          WHEREAS, the Pledgor, certain of its affiliates and the Pledgee have entered into a Pledge
Agreement, dated as of April 12, 2006 (as the same may be amended, modified, restated and/or
supplemented from time to time, the “Pledge Agreement”), under which, among other things,
in order to secure the payment of the Obligations (as defined in the Pledge Agreement), the Pledgor
has or will pledge to the Pledgee for the benefit of the Secured Creditors (as defined in the
Pledge Agreement), and grant a security interest in favor of the Pledgee for the benefit of the
Secured Creditors in, all of the right, title and interest of the Pledgor in and to any and all
Collateral (as defined in the Pledge Agreement) constituting [“uncertificated securities” (as
defined in Section 8-102(a)(18) of the Uniform Commercial Code, as adopted in the State of New
York) (“Uncertificated Securities”)] [Partnership Interests (as defined in the Pledge
Agreement)] [Limited Liability Company Interests (as defined in the Pledge Agreement)], from time
to time by the Issuer, whether now existing or hereafter from time to time acquired by the Pledgor
(with all of such [Uncertificated Securities] [Partnership Interests] [Limited Liability Company
Interests] being herein collectively called the “Issuer Pledged Interests”); and




          WHEREAS, the Pledgor desires the Issuer to enter into this Agreement in order to perfect the
security interest of the Pledgee under the Pledge Agreement in the Issuer Pledged Interests, to
vest in the Pledgee control of the Issuer Pledge Interests and to provide for the rights of the
parties under this Agreement;




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




          1. The Pledgor hereby irrevocably authorizes and directs the Issuer, and the Issuer hereby
agrees, to comply with any and all instructions and orders originated by the Pledgee (and its
successors and assigns) regarding any and all of the Issuer Pledged Interests without the further
consent by the registered owner (including the Pledgor), and, following its receipt of a notice
from the Pledgee stating that an “Event of Default” has occurred and is continuing, not to comply
with any instructions or orders regarding any or all of the Issuer Pledged






 









 







Interests originated by any person or entity other than the Pledgee (and its successors and
assigns) or a court of competent jurisdiction.




          2. The Issuer hereby certifies that (i) no notice of any security interest, lien or other
encumbrance or claim affecting the Issuer Pledged Interests (other than the security interest of
the Pledgee) has been received by it, and (ii) the security interest of the Pledgee in the Issuer
Pledged Interests has been registered in the books and records of the Issuer.




          3. The Issuer hereby represents and warrants that (i) the pledge by the Pledgor of, and the
granting by the Pledgor of a security interest in, the Issuer Pledged Interests to the Pledgee, for
the benefit of the Secured Creditors, does not violate the charter, by-laws, partnership agreement,
membership agreement or any other agreement governing the Issuer or the Issuer Pledged Interests,
and (ii) the Issuer Pledged Interests consisting of capital stock of a corporation are fully paid
and nonassessable.




          4. All notices, statements of accounts, reports, prospectuses, financial statements and other
communications to be sent to the Pledgor by the Issuer in respect of the Issuer will also be sent
to the Pledgee at the following address:



60 Wall Street

New York, NY 10005

Attention: Scottye Lindsey

Telephone No.: 212-250-6150

Telecopier No.: 212-797-4645




          5. Following its receipt of a notice from the Pledgee stating that the Pledgee is exercising
exclusive control of the Issuer Pledged Interests and until the Pledgee shall have delivered
written notice to the Issuer that all of the Obligations have been paid in full and this Agreement
is terminated, the Issuer will send any and all redemptions, distributions, interest or other
payments in respect of the Issuer Pledged Interests from the Issuer for the account of the Pledgee
only by wire transfers to such account as the Pledgee shall instruct.




          6. Except as expressly provided otherwise in Sections 4 and 5, all notices, instructions,
orders and communications hereunder shall be sent or delivered by mail, telegraph, telex, telecopy,
cable or overnight courier service and all such notices and communications shall, when mailed,
telexed, telecopied, cabled or sent by overnight courier, be effective when deposited in the mails
or delivered to overnight courier, prepaid and properly addressed for delivery on such or the next
Business Day, or sent by telex or telecopier, except that notices and communications to the Pledgee
or the Issuer shall not be effective until received. All notices and other communications shall be
in writing and addressed as follows:







-2-









 








          if to the Pledgor, at:




                                                  

                                                  

                                                  

                                                  

          Attention:                     

          Telephone No.:

          Fax No.:




          (a) if to the Pledgee, at the address given in Section 4 hereof;




          (b) if to the Issuer, at:




                                                  

                                                  

                                                  



or at such other address as shall have been furnished in writing by any Person described above to
the party required to give notice hereunder. As used in this Section 6, “Business Day”
means any day other than a Saturday, Sunday, or other day in which banks in New York are authorized
to remain closed.




          7. This Agreement shall be binding upon the successors and assigns of the Pledgor and the
Issuer and shall inure to the benefit of and be enforceable by the Pledgee and its successors and
assigns. This Agreement may be executed in any number of counterparts, each of which shall be an
original, but all of which shall constitute one instrument. In the event that any provision of
this Agreement shall prove to be invalid or unenforceable, such provision shall be deemed to be
severable from the other provisions of this Agreement which shall remain binding on all parties
hereto. None of the terms and conditions of this Agreement may be changed, waived, modified or
varied in any manner whatsoever except in writing signed by the Pledgee, the Issuer and the
Pledgor.




          8. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York, without regard to its principles of conflict of laws.







-3-









 








          IN WITNESS WHEREOF, the Pledgor, the Pledgee and the Issuer have caused this Agreement to be
executed by their duly elected officers duly authorized as of the date first above written.




	 	 	 	 	 
	 	[     ],

as Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH,

     not in its individual capacity but solely

     as Collateral Agent and Pledgee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[     ],

     as Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



-4-









 






	 	 	 	 	 



ANNEX I

to

PLEDGE AGREEMENT




THE PLEDGEE AND

SECURED CREDITOR ACKNOWLEDGEMENTS1




          1. Appointment. The Secured Creditors, by their acceptance of the benefits of
the Pledge Agreement to which this Annex I is attached (the “Pledge Agreement”) hereby
irrevocably designate Deutsche Bank AG New York Branch (and any successor Pledgee) to act as
specified herein, therein, in the other Security Documents and in the Intercreditor Agreement.
Each Secured Creditor hereby irrevocable authorizes, and each holder of any Obligation by the
acceptance of such Obligation and by the acceptance of the benefits of the Pledge Agreement and the
other Security Documents shall be deemed irrevocably to authorize, the Pledgee to take such action
on its behalf under the provisions of the Security Documents, the Intercreditor Agreement and any
instruments and agreements referred to therein and to exercise such powers and to perform such
duties hereunder and thereunder as are specifically delegated to or required of the Pledgee by the
terms hereof and thereof and such other powers as are reasonably incidental thereto. The Pledgee
may perform any of its duties hereunder or thereunder by or through its authorized agents,
sub-agents or employees. The Pledgee, for itself and its successors and assigns, hereby accepts
such appointment created hereby upon the terms and conditions specified herein.




          2. Nature of Duties.




          (a) The Pledgee shall have no duties or responsibilities except those expressly set forth
herein, in the respective Security Documents and in the Intercreditor Agreement. The duties of the
Pledgee shall be mechanical and administrative in nature; the Pledgee shall not have by reason of
this Agreement, any other Credit Document or any other Secured Debt Agreement a fiduciary
relationship in respect of any Secured Creditor; and nothing in this Agreement, any other Credit
Document or any other Secured Debt Agreement, expressed or implied, is intended to or shall be so
construed as to impose upon the Pledgee any obligations in respect of the Security Documents except
as expressly set forth herein and therein.




          (b) The Pledgee shall not be responsible for insuring the Collateral (which term, for purposes
of this Annex I, shall include the “collateral” under all of the Security Documents) or for the
payment of taxes, charges or assessments or discharging of Liens upon the Collateral or otherwise
as to the maintenance of the Collateral.






 




			
	1	 	Unless otherwise defined herein, all
capitalized terms used herein (x) and defined in the Pledge Agreement, are used
herein as therein defined and (y) not defined the Pledge Agreement, are used
herein as defined in the Credit Agreement referenced in the Pledge Agreement.




-5-









 










          (c) The Pledgee shall not be required to ascertain or inquire as to the performance by any
Pledgor of any of the covenants or agreements contained in any Security Document, any other Credit
Document or any other Secured Debt Agreement.




          (d) The Pledgee shall be under no obligation or duty to take any action under, or with respect
to, any Security Document or the Intercreditor Agreement if taking such action (i) would subject
the Pledgee to a tax in any jurisdiction where it is not then subject to a tax or (ii) would
require the Pledgee to qualify to do business, or obtain any license, in any jurisdiction where it
is not then so qualified or licensed or (iii) would subject the Pledgee to in personam jurisdiction
in any locations where it is not then so subject.




          (e) Notwithstanding any other provision of this Annex I, neither the Pledgee nor any of its
officers, directors, employees, affiliates or agents shall, in its individual capacity, be
personally liable for any action taken or omitted to be taken by it in accordance with, or pursuant
to this Annex I of, the Pledge Agreement, any other Security Document or the Intercreditor
Agreement, unless caused by its or their own gross negligence or willful misconduct (as determined
by a court of competent jurisdiction in a final and non-appealable decision).




          (f) Notwithstanding any other provision of any Security Document, the Intercreditor Agreement
or this Annex I, the Pledgee shall not be responsible or liable for perfecting, or maintaining the
priority of, the Liens created pursuant to the Security Documents.




          3. Lack of Reliance on the Pledgee. Independently and without reliance upon the
Pledgee, each Secured Creditor, to the extent it deems appropriate, has made and shall continue to
make (i) its own independent investigation of the financial condition and affairs of each Pledgor
and its Subsidiaries in connection with the making and the continuance of the Obligations and the
taking or not taking of any action in connection therewith, and (ii) its own appraisal of the
creditworthiness of each Pledgor and its Subsidiaries, and the Pledgee shall have no duty or
responsibility, either initially or on a continuing basis, to provide any Secured Creditor with any
credit or other information with respect thereto, whether coming into its possession before the
extension of any Obligations or the purchase of any Notes or at any time or times thereafter. The
Pledgee shall not be responsible or liable in any manner whatsoever to any Secured Creditor for the
correctness of any recitals, statements, information, representations or warranties herein, in the
other Secured Debt Agreements or in any document, certificate or other writing delivered in
connection herewith or therewith or for the execution, effectiveness, genuineness, validity,
enforceability, perfection, collectibility, priority or sufficiency of any Security Document or the
security interests granted thereunder or the financial condition of any Pledgor or any Subsidiary
of any Pledgor or be required to make any inquiry concerning either the performance or observance
of any of the terms, provisions or conditions of any Security Document or any other Secured Debt
Agreement, or the financial condition of any Pledgor or any Subsidiary of any Pledgor, or the
existence or possible existence of any Default or Event of Default (or similar term) under any
Secured Debt Agreement. The Pledgee makes no representations as to the value or condition of the
Collateral or any part thereof, or as to the title of any Pledgor thereto or as to the security
afforded by any Security Document.







-6-









 








          4. Certain Rights of the Pledgee.




          (a) No Secured Creditor shall have the right to take any action with respect to (or against)
any Collateral, or cause the Pledgee to take any action with respect to (or against) any
Collateral, with only the Required Secured Creditors having the right to direct the Pledgee by
written instruction in accordance with Section 4(d) of this Annex I to take any such action.
Except for actions required to be taken by the Pledgee in accordance with the respective Security
Documents, if the Pledgee shall request instructions from the Required Secured Creditors with
respect to any act or action (including failure to act) in connection with any Security Document
and the Required Secured Creditors shall fail to instruct the Pledgee with respect to any act or
action (including failure to act and refrain from acting) in connection with such Security
Document, the Pledgee shall be entitled to refrain from such act or taking such action unless and
until it shall have received express instructions from the Required Secured Creditors and to the
extent requested, appropriate indemnification in respect of actions to be taken, and the Pledgee
shall not incur liability to any Secured Creditor or any other Person by reason of so refraining.
Without limiting the foregoing, (x) no Secured Creditor shall have any right of action whatsoever
against the Pledgee as a result of the Pledgee acting or refraining from acting hereunder or under
the Security Documents in accordance with the instructions of the Required Secured Creditors or as
expressly provided in the Security Documents and (y) without limiting preceding clause (x), the
Pledgee shall not be liable to any Secured Creditor or any other Person for any action taken or
omitted to be taken by it hereunder or under the Security Documents, unless caused by its gross
negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and
non-appealable decision).




          (b) Notwithstanding anything to the contrary contained herein (and subject to Section 2(f) of
this Annex I), the Pledgee is authorized, but not obligated, (i) to take any action reasonably
required to perfect or continue the perfection of the Liens on the Collateral for the benefit of
the Secured Creditors and (ii) when instructions from the Required Secured Creditors have been
requested by the Pledgee but have not yet been received, to take any action which the Pledgee, in
good faith, believes to be reasonably required to promote and protect the interests of the Secured
Creditors in the Collateral; provided that once instructions have been received, the
actions of the Pledgee shall be governed thereby and the Pledgee shall not take any further action
which would be contrary thereto.




          (c) Notwithstanding anything to the contrary contained herein or in any Security Document, the
Pledgee shall not be required to take or refrain from taking, and shall have no liability to any
Secured Creditor for taking or refraining from taking, any action that exposes or, in the good
faith judgment of the Pledgee may expose, the Pledgee or its officers, directors, agents, employees
or representatives to personal liability, unless the Pledgee shall be adequately indemnified as
provided herein or that is, or in the good faith judgment of the Pledgee may be, contrary to any
Security Document, any other Secured Debt Agreement or applicable law.




          (d) For purposes of each Security Document, each Secured Creditor shall appoint a Person as
such Secured Creditor’s authorized representative (each, an “Authorized Representative”)
for the purpose of giving or delivering any notices or instructions thereunder. Any instructions
given by the Required Secured Creditors to the Pledgee pursuant to the Security






-7-









 







Documents shall be in writing signed by the Authorized Representative(s) of the various
Secured Creditors comprising the Required Secured Creditors with respect to such instructions and
such instructions shall certify to and for the benefit of the Pledgee that the Secured Creditors
issuing or delivering such instructions constitute the Required Secured Creditors for purposes of
this Section 4 and the instructions being delivered. The Pledgee shall be entitled to conclusively
and absolutely rely on such instructions and certification as to the identity of the Required
Secured Creditors with respect to such instructions, and the Pledgee shall not be required to take
any action, and shall not be liable to any Secured Creditor for failing or refusing to act,
pursuant to any instructions which are not given or delivered by the Authorized Representatives of
various Secured Creditors comprising the Required Secured Creditors with respect to such
instructions. The parties hereto acknowledge that the Authorized Representative of each of the
Secured Creditors shall be (x) the Administrative Agent, in the case of the Lender Creditors, and
(y) in the case of any Hedging Creditor, such representative as may be designated by such Hedging
Creditor by written notice to the Pledgee from time to time.




          5. Reliance; Interpretation. The Pledgee shall be entitled to rely, and shall be
fully protected in relying, upon, any note, writing, resolution, notice, statement, certificate,
telex, teletype or telescopes message, cablegram, radiogram, order or other document or telephone
message signed, sent or made by the proper Person or entity, and, with respect to all legal matters
pertaining hereto or to the Security Documents and its duties thereunder and hereunder, upon advice
of counsel selected by it. If, in its good faith judgment, the Pledgee reasonably believes that
any instructions given or delivered pursuant to any Security Document or the Intercreditor
Agreement require judicial interpretation or are invalid or otherwise contrary to the provisions of
any Security Document, the Intercreditor Agreement, any other Secured Debt Agreement or applicable
law, the Pledgee shall have the right to petition a court of competent jurisdiction to determine
the validity of, or otherwise interpret, any such instructions. In such event, the Pledgee shall
not be required to carry out such instructions unless directed to do so, or it is determined that
it may do so, by such court.




          6. Indemnification. To the extent the Pledgee is not reimbursed and indemnified by
the Pledgors under the Security Documents or the Intercreditor Agreement, the TL Creditors will
reimburse and indemnify the Pledgee, in proportion to their respective outstanding principal
amounts (including, for this purpose, the Stated Amount of outstanding Letters of Credit (without
giving effect to clause (y) of the proviso in the definition of Stated Amount), the Face Amount of
outstanding Bank Guaranties (without giving effect to clause (y) of the proviso in the definition
of Face Amount) and any unpaid TL Primary Obligations in respect of Interest Rate Protection
Agreements and Other Hedging Agreements, as outstanding principal) of Obligations, for and against
any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or
asserted against the Pledgee in performing its duties hereunder, or in any way relating to or
arising out of its actions as Pledgee in respect of the Security Documents except for those
resulting solely from the Pledgee’s own gross negligence or willful misconduct (as determined by a
court of competent jurisdiction in a final and non-appealable decision). The indemnities set forth
in this Section 6 shall survive the repayment of all Obligations, with the respective
indemnification at such time to be based upon the outstanding principal amounts (determined as
described above) of Obligations at the time of the respective occurrence






-8-









 







upon which the claim against the Pledgee is based or, if same is not reasonably determinable,
based upon the outstanding principal amounts (determined as described above) of Obligations as in
effect immediately prior to the termination of the Security Documents. The indemnities set forth
in this Section 6 are in addition to any indemnities provided by the Lenders to the Pledgee
pursuant to the Credit Agreement, with the effect being that the Lenders shall be responsible for
indemnifying the Pledgee to the extent the Pledgee does not receive payments pursuant to this
Section 6 of this Annex I from the TL Creditors (although in such event, and upon the payment in
full of all such amounts owing to the Pledgee by the Lenders, the Lenders shall be subrogated to
any rights of the Pledgee to receive payment from the TL Creditors).




          7. The Pledgee in its Individual Capacity. With respect to its obligations as a
Secured Creditor under any Secured Debt Agreement to which the Pledgee is a party, and to act as
agent under one or more of such Secured Debt Agreements, the Pledgee shall have the rights and
powers specified therein and herein for a “Secured Creditor”, and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the terms “Secured
Creditors”, “Required Secured Creditors”, “TL Creditors”, “Lender
Creditors”, “Lenders”, “Required Lenders”, “Requisite Lenders”,
“Hedging Creditors”, “holders of Notes”, or any similar terms shall, unless the
context clearly otherwise indicates, include the Pledgee in its individual capacity. The Pledgee
and its affiliates may accept deposits from, lend money to, and generally engage in any kind of
banking, investment banking, trust or other business with any Pledgor or any Affiliate or
Subsidiary of any Pledgor as if it were not performing the duties specified herein or in the other
Secured Debt Agreements, and may accept fees and other consideration from the Pledgors for services
in connection with the Credit Agreement, the other Secured Debt Agreements and otherwise without
having to account for the same to the Secured Creditors.




          8. Holders. The Pledgee may deem and treat the payee of any Note as the owner
respectively thereof for all purposes hereof unless and until written notice of the assignment,
transfer or endorsement thereof, as the case may be, shall have been filed with the Pledgee. Any
request, authority or consent of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Note, shall be final and conclusive and binding on any
subsequent holder, transferee, assignee or endorsee, as the case may be, of such Note, or of any
Note issued in exchange therefor.




          9. Resignation and Removal of the Pledgee.




          (a) The Pledgee may resign from the performance of all of its functions and duties hereunder
and under the other Security Documents at any time by giving 30 Business Days’ prior written notice
to the Borrower and the Authorized Representatives. Such resignation shall take effect upon the
appointment of a successor Pledgee pursuant to clause (b) or (c) below.




          (b) Upon any such notice of resignation by the Pledgee, the Required Secured Creditors, with
the consent (unless a Specified Default or an Event of Default shall exist, in which case no such
consent shall be required) of the Company (which consent shall not be unreasonably withheld or
delayed), shall then appoint a successor Pledgee who shall serve as Pledgee hereunder or thereunder
until such time, if any, as the Required Secured Creditors appoint a successor Pledgee as provided
above.







-9-









 








          (c) If no successor Pledgee has been appointed pursuant to clause (b) above by the 30th
Business Day after the date of such notice of resignation was given by the Pledgee, as a result of
a failure by the Company to consent to the appointment of such a successor Pledgee, (i) the Pledgee
shall then appoint a successor Pledgee who shall serve as Pledgee hereunder or thereunder or (ii)
if the Pledgee shall have failed to appoint a successor Pledgee by the 25th Business Day after the
date such notice of resignation was given by the Pledgee, the Pledgee may appoint (or petition a
court of competent jurisdiction to appoint) a successor Pledgee who shall serve as Pledgee
hereunder or thereunder, in either such case until such time, if any, as the Required Secured
Creditors appoint a successor Pledgee as provided above.




          (d) Notwithstanding anything to the contrary contained herein, after the TL Credit Document
Obligations Termination Date, the Required Secured Creditors may remove the Pledgee by an
instrument in writing executed by the Required Secured Creditors and, thereupon, appoint a
successor Pledgee designated by the Required Secured Creditors, effective as provided in Section
9(e) below.




          (e) The resignation or removal of a Pledgee shall become effective only upon the execution and
delivery of such documents or instruments as are necessary to transfer the rights and obligations
of the Pledgee under the Security Documents and the recording or filing of such documents,
instruments or financing statements as may be necessary to maintain the priority and perfection of
any security interest granted by the Security Documents. Copies of each such document or
instrument shall be delivered to the Company and the Administrative Agent. The appointment of a
successor Pledgee pursuant to this Section 9 of this Annex I shall become effective upon the
acceptance of such appointment (and execution by such successor of the documents, instruments or
financing statements referred to above) and such successor Pledgee shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Pledgee.




          (f) After any resignation or removal hereunder of the Pledgee, the indemnification provisions
specified in this Annex I and in the Credit Documents shall continue to inure to its benefit as to
any actions taken or omitted to be taken by it in connection with its agency hereunder while it was
Pledgee.




          10. Co-Pledgees; Separate Pledgees.




          (a) If at any time or times it shall be necessary or prudent in order to conform to any law of
any jurisdiction in which any of the Collateral shall be located, or the Pledgee shall be advised
by counsel, satisfactory to it, that it is necessary or prudent in the interest of the Pledgee or
the Secured Creditors (or any class thereof), then the Pledgee shall be entitled to appoint one or
more sub-Pledgees or co-Pledgees, and in such case the Pledgee, the Borrower and each of the other
Pledgors having an interest in the Collateral located in the jurisdiction in which such separate or
sub-Pledgee or co-Pledgee is to act shall execute and deliver all instruments and agreements
necessary or proper to constitute another bank or trust company, or one or more individuals
approved by the Pledgee, either to act as co-Pledgee or co-Pledgees jointly with the Pledgee
originally named herein or any successor or successors, or to act as a separate or sub-Pledgee or
agents of the Pledgee and the Secured Creditors in respect of any or all of the Collateral. If the
Borrower and each of the other Pledgors having an interest in the Collateral located






-10-









 







in the jurisdiction in which such separate or sub-Pledgee or co-Pledgee is to act shall not
have joined in the execution of such instruments or agreements within 10 days after the receipt of
a written request from the Pledgee so to do, or if a Default or an Event of Default shall be
continuing, the Pledgee may act under the foregoing provisions of this Section 10 of this Annex I
without the concurrence of the Borrower and the other Pledgors, and the Borrower and each of the
other Pledgors hereby irrevocably appoint the Pledgee as their agent and attorney to act for them
under the foregoing provisions of this Section 10 in either of such contingencies.




          (b) Every separate or sub-Pledgee (and all references herein to a “separate Pledgee” shall be
deemed to refer also to a “sub-Pledgee” or a “collateral sub-agent”) and every co-Pledgee, other
than any Pledgee which may be appointed as successor to any Pledgee, shall, to the extent permitted
by applicable law, be appointed and act and be such, subject to the following provisions and
conditions, namely:






     (i) all rights, remedies, powers, duties and obligations conferred upon, reserved to or
imposed upon the Pledgee in respect of the custody, control and management of monies, papers
or securities shall be exercised solely by the Pledgee hereunder;




     (ii) all rights, remedies, powers, duties and obligations conferred upon, reserved to
or imposed upon the Pledgee hereunder shall be conferred, reserved or imposed and exercised
or performed by the Pledgee and such separate Pledgee or separate Pledgees or co-Pledgee or
co-Pledgees, jointly or severally, as shall be provided in the instrument appointing such
separate Pledgee or separate Pledgees or co-Pledgee or co-Pledgees, except to the extent
that, under any law of any jurisdiction in which any particular act or acts are to be
performed, the Pledgee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, remedies, powers, duties and obligations shall be exercised and
performed by such separate Pledgee or separate Pledgees or co-Pledgee or co-Pledgees;




     (iii) no power given hereby to, or which it is provided hereby may be exercised by, any
such separate Pledgee or separate Pledgees or co-Pledgee or co-Pledgees shall be exercised
hereunder by such separate Pledgee or separate Pledgees or co-Pledgee or co-Pledgees except
(subject to applicable law) jointly with, or with the consent or at the direction in writing
of, the Pledgee (which direction shall be made in accordance with the provisions of the
Pledge Agreement);




     (iv) all provisions of the respective Security Documents and the Intercreditor
Agreement relating to the Pledgee or to releases of Collateral shall apply to any such
separate Pledgee or separate Pledgees or co-Pledgee or co-Pledgees;




     (v) no Pledgee constituted under this Section 10 of this Annex I shall be personally
liable by reason of any act or omission of any other separate or co-Pledgee or the Pledgee
hereunder; and




     (vi) the Pledgee at any time by an instrument in writing, executed by it, may accept
the resignation of any such separate Pledgee or co-Pledgee and the Pledgee or the Required
Secured Creditors may individually or jointly remove any such separate



-11-









 







Pledgee or co-Pledgee, and in that case, by an instrument in writing executed by the
Pledgee or the Required Secured Creditors, as the case may be, and the Pledgee or the
Required Secured Creditors, as the case may be, may appoint a successor to such separate
Pledgee or co-Pledgee, as the case may be, anything in this Annex I to the contrary
notwithstanding. If the Borrower and each of the other Pledgors shall not have joined in
the execution of any such instrument within 10 days after the receipt of a written request
from the Pledgee so to do, or if a Default or an Event of Default shall be continuing, the
Pledgee shall have the power to accept the resignation of or remove any such separate
Pledgee or co-Pledgee and to appoint a successor to such separate Pledgee or co-Pledgee, as
the case may be, and to execute any such instrument without the concurrence of the Borrower
or such other Pledgors, and the Borrower and each of the other Pledgors hereby irrevocably
appoint the Pledgee their agent and attorney to act for them in such connection in either of
such contingencies. If the Pledgee shall have appointed a separate Pledgee or separate
Pledgees or co-Pledgee or co-Pledgees as above provided, the Pledgee may at any time, by an
instrument in writing, accept the resignation of or remove any such separate Pledgee or
co-Pledgee, the successor to any such separate Pledgee or co-Pledgee to be appointed by the
Borrower and each of the other Pledgors and the Pledgee, or by the Pledgee alone, as
hereinabove provided in this Section 10.



          11. Acknowledgment of Priorities of Security Interests and Liens.




          (a) Each Secured Creditor, by its acceptance of the benefits hereunder and of the Security
Documents, hereby agrees for the benefit of the other Secured Creditors that, to the extent any
additional or substitute collateral for any of the Obligations of the type covered by the Pledge
Agreement delivered by a Pledgor to or for the benefit of any Secured Creditor, such collateral
shall be subject to the provisions of this Annex I and of the Pledge Agreement.




          (b) If any Secured Creditor shall acquire by indemnification, subrogation, contract or
otherwise (including pursuant to the Pledge Agreement), any lien, estate, right or other interest
in, or possession or control of, any of the assets of any Pledgor that would otherwise constitute
Collateral to secure (or providing security for) the respective Obligations owed to such Secured
Creditor, that lien, estate, right or other interest shall, and any such possession or control
shall, be held for the benefit of the Secured Creditors under the Pledge Agreement and shall be
subject to the relative priorities set forth in the Pledge Agreement.




          12. Sharing Arrangements.




          (a) The Secured Creditors agree that none of them shall be entitled to benefit from any
avoidance action affecting or otherwise relating to any distribution or allocation made in
accordance with the Security Documents, whether by preference or otherwise, it being understood and
agreed that the benefit of any such avoidance action otherwise allocable to them shall instead be
allocated and turned over for application in accordance with the priorities set forth in the Pledge
Agreement.




          (b) In the event that any payment or distribution shall be received by any Secured Creditor in
a manner that is inconsistent with the provisions of Section 9 of the Pledge Agreement, such
payment or distribution shall be held by such Secured Creditor for the benefit






-12-









 







of, and shall be paid over or delivered to, the respective Secured Creditors entitled thereto
for application to such Secured Creditors’ Obligations (including, without limitation, all interest
that accrues after the commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency, reorganization or similar proceeding of any Pledgor at the rate provided
for in the respective documentation for such Obligations, whether or not a claim for post-petition
interest is allowed in any such proceeding) in accordance with Section 9 of the Pledge Agreement.




          13. Provisions in the Event of Insolvency Proceedings. Without limiting the other
provisions of this Annex I, upon the commencement of a case under the Bankruptcy Code by or against
any Pledgor:





     (a) The Security Documents shall remain in full force and effect and enforceable
pursuant to their respective terms in accordance with Section 510(a) of the Bankruptcy Code,
and all references herein to such Pledgor shall be deemed to apply to such entity as
debtor-in-possession and to any trustee in bankruptcy for the estate of such entity.




     (b) In the event that any of the Term Obligations shall be paid in full and
subsequently, for whatever reason (including, but not limited to, an order or judgment for
disgorgement of a preference under Title 11 of the United Stated Code, or any similar law,
or the settlement of any claim in respect thereof), formerly paid or satisfied TL
Obligations become unpaid or unsatisfied, the terms and conditions of this Annex I shall be
fully applicable thereto until all such Term Obligations are again paid in full in cash.



          14. Special Releases and Waivers. Each Secured Creditor agrees that neither the
Pledgee nor the Required Secured Creditors (in directing the Pledgee to take any action with
respect to the Collateral) shall have any duty or obligation to realize first upon any type of
Collateral or to sell, dispose of or otherwise liquidate all or any portion of the Collateral in
any manner that would maximize the return to any Class of Secured Creditors holding Obligations of
any type (whether Credit Document Obligations, Cash Management Obligations or Hedging Obligations),
notwithstanding that the order and timing of any such realization, sale, disposition or liquidation
may affect the amount of proceeds actually received by such Class of Secured Creditors from such
realization, sale, disposition or liquidation.




          15. Successors and Assigns. Each of the agreements and acknowledgments made by each
Secured Creditor is made on behalf of itself and its successors and assigns and is deemed effective
by virtue of such Secured Creditor’s acceptance of the benefits of the Pledge Agreement and the
other Security Documents.




* * *










-13-









 








Exhibit E to

Amendment No. 3




TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	1. SECURITY FOR OBLIGATIONS
	 	 	2	 
	 
	 	 	 	 
	2. DEFINITIONS.
	 	 	3	 
	 
	 	 	 	 
	3. PLEDGE OF SECURITIES, ETC.
	 	 	8	 
	 
	 	 	 	 
	3. 1 Pledge
	 	 	8	 
	3. 2 Procedures
	 	 	12	 
	3. 3 Subsequently Acquired Collateral
	 	 	13	 
	3. 4 Transfer Taxes
	 	 	14	 
	3. 5 Certain Representations and Warranties Regarding the Collateral
	 	 	14	 
	3. 6 Overriding Provisions with respect to TL Priority Collateral
	 	 	14	 
	 
	 	 	 	 
	4.
APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC.
	 	 	15	 
	 
	 	 	 	 
	5. VOTING, ETC. , WHILE NO EVENT OF DEFAULT OR SPECIFIED DEFAULT
	 	 	15	 
	 
	 	 	 	 
	6. DIVIDENDS AND OTHER DISTRIBUTIONS
	 	 	15	 
	 
	 	 	 	 
	7. REMEDIES IN CASE OF AN EVENT OF DEFAULT OR A SPECIFIED DEFAULT
	 	 	16	 
	 
	 	 	 	 
	8. REMEDIES,
CUMULATIVE, ETC.
	 	 	17	 
	 
	 	 	 	 
	9. APPLICATION OF PROCEEDS
	 	 	18	 
	 
	 	 	 	 
	10. PURCHASERS OF COLLATERAL
	 	 	18	 
	 
	 	 	 	 
	11. INDEMNITY
	 	 	18	 
	 
	 	 	 	 
	12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER
	 	 	19	 
	 
	 	 	 	 
	13. FURTHER
ASSURANCES; POWER-OF-ATTORNEY
	 	 	20	 
	 
	 	 	 	 
	14. THE PLEDGEE AS COLLATERAL AGENT
	 	 	20	 
	 
	 	 	 	 
	15. TRANSFER BY THE PLEDGORS
	 	 	20	 






 









 






	 	 	 	 	 
	 	 	Page	 
	16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS
	 	 	20	 
	 
	 	 	 	 
	17. LEGAL NAMES; TYPE OF ORGANIZATION (AND WHETHER A REGISTERED ORGANIZATION AND/OR A TRANSMITTING UTILITY); JURISDICTION OF
ORGANIZATION; LOCATION; ORGANIZATIONAL IDENTIFICATION NUMBERS;
CHANGES THERETO; ETC.
	 	 	23	 
	 
	 	 	 	 
	18.
PLEDGORS’ OBLIGATIONS ABSOLUTE, ETC.
	 	 	23	 
	 
	 	 	 	 
	19. SALE OF COLLATERAL WITHOUT REGISTRATION
	 	 	24	 
	 
	 	 	 	 
	20. TERMINATION; RELEASE
	 	 	25	 
	 
	 	 	 	 
	21. NOTICES,
ETC.
	 	 	26	 
	 
	 	 	 	 
	22. WAIVER; AMENDM ENT
	 	 	27	 
	 
	 	 	 	 
	23. SUCCESSORS AND ASSIGNS
	 	 	27	 
	 
	 	 	 	 
	24. HEADINGS DESCRIPTIVE
	 	 	27	 
	 
	 	 	 	 
	25. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL
	 	 	27	 
	 
	 	 	 	 
	26. PLEDGOR’S DUTIES
	 	 	28	 
	 
	 	 	 	 
	27. COUNTERPARTS
	 	 	29	 
	 
	 	 	 	 
	28. SEVERABILITY
	 	 	29	 
	 
	 	 	 	 
	29. RECOURSE
	 	 	29	 
	 
	 	 	 	 
	30. ADDITIONAL PLEDGORS
	 	 	29	 
	 
	 	 	 	 
	31. LIMITED OBLIGATIONS
	 	 	29	 
	 
	 	 	 	 
	32. RELEASE OF PLEDGORS
	 	 	29	 
	 
	 	 	 	 





	 	 	 	 	 
	ANNEX A 	 	—	 	 SCHEDULE OF LEGAL NAMES, TYPE OF ORGANIZATION (AND WHETHER A REGISTERED
ORGANIZATION AND/OR A TRANSMITTING UTILITY), JURISDICTION OF ORGANIZATION,
LOCATION AND ORGANIZATIONAL IDENTIFICATION NUMBERS
	ANNEX B 	 	—	 	 SCHEDULE OF SUBSIDIARIES
	ANNEX C  	 	—	 	SCHEDULE OF STOCK






-2-








 






	 	 	 	 	 
	ANNEX D  
	 	—	 	SCHEDULE OF NOTES
	ANNEX E  	 	—	 	SCHEDULE OF LIMITED LIABILITY COMPANY INTERESTS
	ANNEX F  	 	—	 	SCHEDULE OF PARTNERSHIP INTERESTS
	ANNEX G  	 	—	 	SCHEDULE OF CHIEF EXECUTIVE OFFICES
	ANNEX H 	 	—	 	 FORM OF AGREEMENT REGARDING UNCERTIFICATED SECURITIES, LIMITED LIABILITY
COMPANY INTERESTS AND PARTNERSHIP INTERESTS
	ANNEX I 	 	—	 	 THE PLEDGEE AND SECURED CREDITOR ACKNOWLEDGEMENTS







-3-











 





Exhibit F to

Amendment No. 3




SUBSIDIARIES GUARANTY




          GUARANTY, dated as of April 12, 2006, as amended on March 2, 2010 (as amended, restated,
modified and/or supplemented from time to time, this “Guaranty”), made by each of the
undersigned guarantors (each, a “Guarantor” and, together with any other entity that
becomes a guarantor hereunder pursuant to Section 25 hereof, the “Guarantors”). Except as
otherwise defined herein, all capitalized terms used herein and defined in the Credit Agreement (as
defined below) shall be used herein as therein defined.




W I T N E S S E T H :




          WHEREAS, Dole Food Company, Inc. (the “Borrower”), various financial institutions from
time to time party thereto (the “Lenders”) and Deutsche Bank AG New York Branch, as
Administrative Agent (in such capacity, together with any successor agent, the “Administrative
Agent”), have entered into a Credit Agreement, dated as of April 12, 2006, as amended on March
18, 2009, as amended on October 26, 2009 and amended on March 2, 2010 (as amended, restated,
modified and/or supplemented from time to time, the “Credit Agreement”), providing for the
making of Loans to the Borrower, the issuance of, and participation in, Letters of Credit for the
respective accounts of the Borrower, all as contemplated therein (the Lenders, the Administrative
Agent, the Lead Arranger, the Collateral Agent and each Issuing Lender are herein called the
“Lender Creditors”);




          WHEREAS, each Guarantor is a direct or indirect Wholly-Owned Domestic Subsidiary of the
Borrower;




          WHEREAS, it is a condition precedent to the making of Loans to the Borrower and the issuance
of, and participation in, Letters of Credit for the respective accounts of the Borrower under the
Credit Agreement that each Guarantor shall have executed and delivered this Guaranty; and




          WHEREAS, each Guarantor will obtain benefits from the incurrence of Loans by the Borrower and
the issuance of, and participation in, Letters of Credit for the respective accounts of the
Borrower under the Credit Agreement and, accordingly, desires to execute this Guaranty in order to
satisfy the condition described in the preceding paragraph and to induce the Lenders to make Loans
to the Borrower, issue, and/or participate in Letters of Credit for the respective accounts of the
Borrower;




          NOW, THEREFORE, in consideration of the foregoing and other benefits accruing to each
Guarantor, the receipt and sufficiency of which are hereby acknowledged, each Guarantor hereby
makes the following representations and warranties to the Secured Creditors and hereby covenants
and agrees with each Secured Creditor as follows:




          1. Each Guarantor, jointly and severally, irrevocably, absolutely and unconditionally
guarantees as a primary obligor and not merely as surety: (i) to the Lender Creditors the full and
prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of (x) the
principal of, premium, if any, and interest on the Notes issued by, and the Loans





 









 







made to, the Borrower under the Credit Agreement and all reimbursement obligations and Unpaid
Drawings with respect to Letters of Credit and (y) all other obligations (including obligations
which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due),
liabilities and indebtedness owing by the Borrower to the Lender Creditors under the Credit
Agreement and each other Credit Document to which the Borrower is a party (including, without
limitation, indemnities, Fees and interest thereon (including any interest accruing after the
commencement of any bankruptcy, insolvency, receivership or similar proceeding at the rate provided
for in the Credit Agreement, whether or not such interest is an allowed claim in any such
proceeding)), whether now existing or hereafter incurred under, arising out of or in connection
with the Credit Agreement and any such other Credit Document and the due performance and compliance
by the Borrower with all of the terms, conditions and agreements contained in all such Credit
Documents (all such principal, premium, interest, liabilities, indebtedness and obligations under
this clause (i), except to the extent consisting of obligations or liabilities with respect to
Interest Rate Protection Agreements or Other Hedging Agreements, being herein collectively called
the “Credit Document Guaranteed Obligations”) and (ii) to the Secured Cash Management Banks
the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise)
of (x) the principal of, premium, if any, and interest on any obligations under any Secured Cash
Management Agreements and (y) all other obligations (including obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become due), liabilities and
indebtedness owing by the Borrower or any of its Subsidiaries to the Secured Cash Management Banks
under Secured Cash Management Agreements to which the Borrower or any of its Subsidiaries is a
party (including, without limitation, indemnities, fees and interest thereon (including any
interest accruing after the commencement of any bankruptcy, insolvency, receivership or similar
proceeding, whether or not such interest is an allowed claim in any such proceeding)), whether now
existing or hereafter incurred under, arising out of or in connection with any Secured Cash
Management Agreement and the due performance and compliance by the Borrower and its Subsidiaries
with all of the terms, conditions and agreements contained in all such Secured Cash Management
Agreements (all such principal, premium, interest, liabilities, indebtedness and obligations under
this clause (ii) being herein collectively called the “Cash Management Guaranteed
Obligations” and together with the Credit Document Guaranteed Obligations, the “Guaranteed
Obligations”).




          For purposes of this Guaranty:





     (i) “Guaranteed Party” shall mean the Borrower and each Subsidiary of the Borrower
party to any Secured Cash Management with a Secured Cash Management Bank.




     (ii) “Secured Cash Management Agreement” means a Treasury Services Agreement
entered into by the Borrower or any of its Subsidiaries with a Secured Cash Management Bank;




     (iii) “Secured Cash Management Banks” means, with respect to any Treasury
Services Agreement, any Lender or any affiliate thereof (even if such Lender subsequently
ceases to be a Lender under the Credit Agreement for any reason);



-2-









 






     (iv) “Secured Creditors” means the Lender Creditors and each Secured Cash
Management Bank; and




     (v) “Treasury Services Agreement” shall mean any agreement relating to
treasury, depositary and cash management services or automated clearinghouse transfer of
funds.



          2. Additionally, each Guarantor, jointly and severally, unconditionally, absolutely and
irrevocably, guarantees the payment of any and all Guaranteed Obligations of such Guarantor
(whether or not due or payable by the Borrower or any other Guaranteed Party) upon the occurrence
in respect of the Borrower or any such other Guaranteed Party of any of the events specified in
Section 11.05 of the Credit Agreement, and unconditionally, absolutely and irrevocably, jointly and
severally, promises to pay such Guaranteed Obligations to the Secured Creditors, or order, on
demand. This Guaranty shall constitute a guaranty of payment, and not of collection.




          3. The liability of each Guarantor hereunder is primary, absolute, joint and several, and
unconditional and is exclusive and independent of any security for or other guaranty of the
Guaranteed Obligations of the Borrower or any other Guaranteed Party whether executed by such
Guarantor, any other Guarantor, any other guarantor or by any other party, and the liability of
each Guarantor hereunder shall not be affected or impaired by any circumstance or occurrence
whatsoever, including, without limitation (a) any direction as to application of payment by the
Borrower or any other Guaranteed Party or by any other party, (b) any other continuing or other
guaranty, undertaking or maximum liability of a Guarantor or of any other party as to the
Guaranteed Obligations, (c) any payment on or in reduction of any such other guaranty or
undertaking, (d) any dissolution, termination or increase, decrease or change in personnel by the
Borrower or any other Guaranteed Party, (e) any payment made to any Secured Creditor on the
Guaranteed Obligations which any Secured Creditor repays the Borrower or any other Guaranteed Party
pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor
relief proceeding, and each Guarantor waives any right to the deferral or modification of its
obligations hereunder by reason of any such proceeding, (f) any action or inaction by the Secured
Creditors as contemplated in Section 6 hereof or (g) any invalidity, irregularity or
unenforceability of all or any part of the Guaranteed Obligations or of any security therefor.




          4. The obligations of each Guarantor hereunder are independent of the obligations of any other
Guarantor, any other guarantor, the Borrower or any other Guaranteed Party, and a separate action
or actions may be brought and prosecuted against each Guarantor whether or not action is brought
against any other Guarantor, any other guarantor, the Borrower or any other Guaranteed Party and
whether or not any other Guarantor, any other guarantor, the Borrower or any other Guaranteed Party
be joined in any such action or actions. Each Guarantor waives, to the fullest extent permitted by
law, the benefits of any statute of limitations affecting its liability hereunder or the
enforcement thereof. Any payment by the Borrower or any other Guaranteed Party or other
circumstance which operates to toll any statute of limitations as to the Borrower or such other
Guaranteed Party shall operate to toll the statute of limitations as to each Guarantor.







-3-









 








          5. Each Guarantor hereby waives (to the fullest extent permitted by applicable law) notice of
acceptance of this Guaranty and notice of any liability to which it may apply, and waives
promptness, diligence, presentment, demand of payment, protest, notice of dishonor or nonpayment of
any such liabilities, suit or taking of other action by the Administrative Agent or any other
Secured Creditor against, and any other notice to, any party liable thereon (including such
Guarantor, any other Guarantor, any other guarantor, the Borrower or any other Guaranteed Party).




          6. Subject to Section 18, any Secured Creditor may (except as shall be required by applicable
statute and cannot be waived) at any time and from time to time without the consent of, or notice
to, any Guarantor, without incurring responsibility to such Guarantor, without impairing or
releasing the obligations of such Guarantor hereunder, upon or without any terms or conditions and
in whole or in part:





     (a) change the manner, place or terms of payment of, and/or change, increase or extend
the time of payment of, renew, increase, accelerate or alter, any of the Guaranteed
Obligations (including any increase or decrease in the rate of interest thereon or the
principal amount thereof), any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the guaranty herein made shall apply to the Guaranteed
Obligations as so changed, extended, renewed or altered;




     (b) take and hold security for the payment of the Guaranteed Obligations and sell,
exchange, release, surrender, impair, realize upon or otherwise deal with in any manner and
in any order any property by whomsoever at any time pledged or mortgaged to secure, or
howsoever securing, the Guaranteed Obligations or any liabilities (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof, and/or any offset
thereagainst;




     (c) exercise or refrain from exercising any rights against the Borrower, any other
Guaranteed Party, any other Credit Party, any Subsidiary thereof, any other guarantor of the
Borrower or any other Guaranteed Party or others or otherwise act or refrain from acting;




     (d) settle or compromise any of the Guaranteed Obligations, any security therefor or
any liability (including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and may subordinate the payment of all or any part thereof to the payment
of any liability (whether due or not) of the Borrower or any other Guaranteed Party to
creditors of the Borrower or such other Guaranteed Party other than the Secured Creditors;




     (e) apply any sums by whomsoever paid or howsoever realized to any liability or
liabilities of the Borrower or any other Guaranteed Party to the Secured Creditors
regardless of what liabilities of the Borrower or such other Guaranteed Party remain unpaid;




     (f) consent to or waive any breach of, or any act, omission or default under the Credit
Documents or any of the instruments or agreements referred to therein, or



-4-









 






otherwise amend, modify or supplement any of the Credit Documents or any of such other
instruments or agreements;




     (g) act or fail to act in any manner which may deprive such Guarantor of its right to
subrogation against the Borrower or any other Guaranteed Party to recover full indemnity for
any payments made pursuant to this Guaranty;




     (h) release or substitute any one or more endorsers, Guarantors, other guarantors, the
Borrower, any other Guaranteed Party or other obligors; and/or




     (i) take any other action which would, under otherwise applicable principles of common
law, give rise to a legal or equitable discharge of such Guarantor from its liabilities
under this Guaranty.



          7. No invalidity, irregularity or unenforceability of all or any part of the Guaranteed
Obligations or of any security therefor shall affect, impair or be a defense to this Guaranty, and
this Guaranty shall be primary, absolute and unconditional notwithstanding the occurrence of any
event or the existence of any other circumstances which might constitute a legal or equitable
discharge of a surety or guarantor except payment in full in cash of the Guaranteed Obligations.




          8. This Guaranty is a continuing one and all liabilities to which it applies or may apply
under the terms hereof shall be conclusively presumed to have been created in reliance hereon. No
failure or delay on the part of any Secured Creditor in exercising any right, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein expressly specified are cumulative
and not exclusive of any rights or remedies which any Secured Creditor would otherwise have. No
notice to or demand on any Guarantor in any case shall entitle such Guarantor to any other further
notice or demand in similar or other circumstances or constitute a waiver of the rights of any
Secured Creditor to any other or further action in any circumstances without notice or demand. It
is not necessary for any Secured Creditor to inquire into the capacity or powers of the Borrower or
any other Guaranteed Party or the officers, directors, partners or agents acting or purporting to
act on its or their behalf, and any indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed hereunder.




          9. Any indebtedness of the Borrower or any other Guaranteed Party now or hereafter held by any
Guarantor is hereby subordinated to the indebtedness of the Borrower or such other Guaranteed Party
to the Secured Creditors; and such indebtedness of the Borrower or such other Guaranteed Party to
any Guarantor, if the Administrative Agent or the Collateral Agent, after an Event of Default has
occurred and is continuing, so requests, shall be collected, enforced and received by such
Guarantor as trustee for the Secured Creditors and be paid over to the Secured Creditors on account
of the indebtedness of the Borrower or such other Guaranteed Party to the Secured Creditors, but
without affecting or impairing in any manner the liability of such Guarantor under the other
provisions of this Guaranty. Prior to the transfer by any Guarantor of any note or negotiable
instrument evidencing any indebtedness of the Borrower or any other Guaranteed Party to such
Guarantor, such Guarantor shall mark such note or negotiable






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instrument with a legend that the same is subject to this subordination. Without limiting the
generality of the foregoing, each Guarantor hereby agrees with the Secured Creditors that it will
not exercise any right of subrogation which it may at any time otherwise have as a result of this
Guaranty (whether contractual, under Section 509 of the Bankruptcy Code or otherwise) until all
Guaranteed Obligations have been irrevocably paid in full in cash.




          10. (a) Each Guarantor waives any right (except as shall be required by applicable statute or
law and cannot be waived) to require the Secured Creditors to: (i) proceed against the Borrower,
any other Guaranteed Party, any other Guarantor, any other guarantor of any Guaranteed Obligations
or any other party; (ii) proceed against or exhaust any security held from the Borrower, any other
Guaranteed Party, any other Guarantor, any other guarantor of the Guaranteed Obligations or any
other party; or (iii) pursue any other remedy in the Secured Creditors’ power whatsoever. Each
Guarantor waives any (to the fullest extent permitted by applicable law) defense based on or
arising out of any defense of the Borrower, any other Guaranteed Party, any other Guarantor, any
other guarantor of the Guaranteed Obligations or any other party other than payment in full in cash
of the Guaranteed Obligations, including, without limitation, any defense based on or arising out
of the disability of the Borrower, any other Guaranteed Party, any other Guarantor, any other
guarantor of the Guaranteed Obligations or any other party, or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of the
liability of the Borrower or any other Guaranteed Party other than payment in full in cash of the
Guaranteed Obligations. The Secured Creditors may, at their election, foreclose on any security
held by the Administrative Agent, the Collateral Agent or the other Secured Creditors by one or
more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable (to the extent such sale is permitted by applicable law), or exercise any other right or
remedy the Secured Creditors may have against the Borrower, any other Guaranteed Party or any other
party, or any security, without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent the Guaranteed Obligations have been paid in full in cash. Each
Guarantor waives any defense arising out of any such election by the Secured Creditors, even though
such election operates to impair or extinguish any right of reimbursement or subrogation or other
right or remedy of such Guarantor against the Borrower, any other Guaranteed Party or any other
party or any security.




          (b) Each Guarantor waives all presentments, demands for performance, protests and notices,
including, without limitation, notices of nonperformance, notices of protest, notices of dishonor,
notices of acceptance of this Guaranty, and notices of the existence, creation or incurring of new
or additional indebtedness. Each Guarantor assumes all responsibility for being and keeping itself
informed of the Borrower’s and each other Guaranteed Party’s financial condition and assets, and of
all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the
nature, scope and extent of the risks which such Guarantor assumes and incurs hereunder, and agrees
that the Secured Creditors shall have no duty to advise any Guarantor of information known to them
regarding such circumstances or risks.




          (c) Each Guarantor hereby acknowledges and affirms that it understands that to the extent the
Guaranteed Obligations are secured by Real Property located in the State of California, such
Guarantor shall be liable for the full amount of the liability hereunder notwithstanding
foreclosure on such Real Property by trustee sale or any other reason impairing such






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Guarantor’s or any Secured Creditors’ right to proceed against the Borrower, any other
Guaranteed Party or any other guarantor of the Guaranteed Obligations.




          (d) Each Guarantor hereby waives, to the fullest extent permitted by applicable law, all
rights and benefits under Section 580a, 580b, 580d and 726 of the California Code of Civil
Procedure. Each Guarantor hereby further waives, to the fullest extent permitted by applicable
law, without limiting the generality of the foregoing or any other provision hereof, all rights and
benefits which might otherwise be available to such Guarantor under Sections 2809, 2810, 2815,
2819, 2821, 2839, 2845, 2848, 2849, 2850, 2899 and 3433 of the California Civil Code.




          (e) Until the Guaranteed Obligations have been paid in full in cash, each Guarantor waives its
rights of subrogation and reimbursement and any other rights and defenses available to such
Guarantor by reason of Sections 2787 to 2855, inclusive, of the California Civil Code, including,
without limitation, (1) any defenses such Guarantor may have to this Guaranty by reason of an
election of remedies by the Secured Creditors and (2) any rights or defenses such Guarantor may
have by reason of protection afforded to the Borrower or any other Guaranteed Party pursuant to the
antideficiency or other laws of California limiting or discharging the Borrower’s or such other
Guaranteed Party’s indebtedness, including, without limitation, Section 580a, 580b, 580d or 726 of
the California Code of Civil Procedure. In furtherance of such provisions, each Guarantor hereby
waives all rights and defenses arising out of an election of remedies by the Secured Creditors,
even though that election of remedies, such as a nonjudicial foreclosure, destroys such Guarantor’s
rights of subrogation and reimbursement against the Borrower or any other Guaranteed Party by the
operation of Section 580d of the California Code of Civil Procedure or otherwise.




          (f) Each Guarantor warrants and agrees that each of the waivers set forth above is made with
full knowledge of its significance and consequences and that if any of such waivers are determined
to be contrary to any applicable law or public policy, such waivers shall be effective only to the
maximum extent permitted by law.




          11. Notwithstanding anything to the contrary contained elsewhere in this Guaranty, the Secured
Creditors agree (by their acceptance of the benefits of this Guaranty) that this Guaranty may be
enforced only by the action of the Administrative Agent or the Collateral Agent, in each case
acting upon the instructions of the Required Lenders and that no other Secured Creditor shall have
any right individually to seek to enforce or to enforce this Guaranty or to realize upon the
security to be granted by the Security Documents, it being understood and agreed that such rights
and remedies may be exercised by the Administrative Agent or the Collateral Agent for the benefit
of the Secured Creditors upon the terms of this Guaranty and the Security Documents. The Secured
Creditors further agree that this Guaranty may not be enforced against, and shall be non-recourse
with respect to, any director, officer, employee, partner, member or stockholder of any Guarantor
(except to the extent such partner, member or stockholder is also a Guarantor hereunder). It is
understood and agreed that the agreement in this Section 11 is among and solely for the benefit of
the Secured Creditors and that if the Required Lenders so agree (without requiring the consent of
any Guarantor), this Guaranty may be directly enforced by any Secured Creditor.







-7-









 








          12. In order to induce the Lenders to make Loans to the Borrower and to issue, and/or
participate in, Letters of Credit for the respective accounts of the Borrower pursuant to the
Credit Agreement, each Guarantor represents, warrants and covenants that:





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




     (b) such Guarantor has the Company power and authority to execute, deliver and perform
the terms and provisions of this Guaranty and each other Credit Document (such term, for
purposes of this Guaranty, to mean each Credit Document (as defined in the Credit Agreement)
to which it is a party and has taken all necessary Company action to authorize the
execution, delivery and performance by it of this Guaranty and each such other Credit
Document;




     (c) such Guarantor has duly executed and delivered this Guaranty and each other Credit
Document to which it is a party, and this Guaranty and each such other Credit Document
constitutes the legal, valid and binding obligation of such Guarantor enforceable in
accordance with its terms, except to the extent that the enforceability hereof or thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws generally affecting creditors’ rights and by equitable principles (regardless
of whether enforcement is sought in equity or at law);




     (d) neither the execution, delivery or performance by such Guarantor of this Guaranty
or any other Credit Document to which it is a party, nor compliance by it with the terms and
provisions hereof and thereof, will (i) contravene any material provision of any applicable
law, statute, rule or regulation or any applicable order, writ, injunction or decree of any
court or governmental instrumentality, (ii) conflict with or be inconsistent with or result
in any breach of any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to create or
impose) any Lien (except pursuant to the Security Documents) upon any of the material
property or assets of such Guarantor or any of its Subsidiaries pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement, credit agreement, or any other material
agreement, contract or instrument to which such Guarantor or any of its Subsidiaries is a
party or by which it or any of its material property or assets is bound or to which it may
be subject or (iii) violate any provision of the certificate or articles of incorporation,
by-laws, partnership agreement or limited liability company agreement (or equivalent
organizational documents), as the case may be, of such Guarantor or any of its Subsidiaries;




     (e) no order, consent, approval, license, authorization or validation of, or filing,
recording or registration with (except as may have been obtained or made prior to the date
when required and which remain in full force and effect), or exemption by, any gov



-8-









 






ernmental or public body or authority, or any subdivision thereof, is required to
authorize, or is required in connection with, (i) the execution, delivery and performance of
this Guaranty by such Guarantor or any other Credit Document to which such Guarantor is a
party or (ii) the legality, validity, binding effect or enforceability of this Guaranty or
any other Credit Document to which such Guarantor is a party; and




     (f) there are no actions, suits or proceedings pending or, to such Guarantor’s
knowledge, threatened (i) with respect to this Guaranty or any other Credit Document to
which such Guarantor is a party, (ii) with respect to such Guarantor or any of its
Subsidiaries that, either individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect or (iii) that could reasonably be expected to have a material
adverse effect on the rights or remedies of the Secured Creditors or on the ability of such
Guarantor to perform its respective obligations to the Secured Creditors hereunder and under
the other Credit Documents to which it is a party.



          13. Each Guarantor covenants and agrees that on and after the Effective Date and until the
termination of the Total Commitment and until such time as no Note or Letter of Credit remains
outstanding and all Guaranteed Obligations have been paid in full (other than indemnities described
in Section 13.13 of the Credit Agreement and analogous provisions in the Security Documents which
are not then due and payable), such Guarantor will comply and will cause each of its Subsidiaries
to comply with, all of the applicable provisions, covenants and agreements contained in Sections 9
and 10 of the Credit Agreement, and shall take, or will refrain from taking, as the case may be,
all actions that are necessary to be taken or not taken so that no violation of any provision,
covenant or agreement contained in Section 9 or 10 of the Credit Agreement, and so that no Default
or Event of Default, is caused by the actions of such Guarantor or any of its Subsidiaries.




          14. The Guarantors hereby jointly and severally agree to pay all reasonable out-of-pocket
costs and expenses of each Secured Creditor in connection with the enforcement of this Guaranty and
the protection of such Secured Creditor’s rights hereunder and any amendment, waiver or consent
relating hereto (including, in each case, without limitation, the reasonable fees and disbursements
of counsel (including in-house counsel) employed by any Secured Creditor).




          15. This Guaranty shall be binding upon each Guarantor and its successors and assigns and
shall inure to the benefit of the Secured Creditors and their successors and assigns.




          16. Neither this Guaranty nor any provision hereof may be changed, waived, discharged or
terminated except with the written consent of each Guarantor directly affected thereby (it being
understood that the addition or release of any Guarantor hereunder shall not constitute a change,
waiver, discharge or termination affecting any Guarantor other than the Guarantor so added or
released) and with the written consent of the Required Lenders (or to the extent required by
Section 13.12 of the Credit Agreement, with the written consent of each Lender) at all times prior
to the time at which all Credit Document Obligations have been paid in full.







-9-









 








          17. Each Guarantor acknowledges that an executed (or conformed) copy of each of the Credit
Documents has been made available to an Authorized Officer of such Guarantor and such Authorized
Officer is familiar with the contents thereof.




          18. In addition to any rights now or hereafter granted under applicable law (including,
without limitation, Section 151 of the New York Debtor and Creditor Law) and not by way of
limitation of any such rights, upon the occurrence and during the continuance of an Event of
Default (such term to mean and include any “Event of Default” as defined in the Credit
Agreement), each Secured Creditor is hereby authorized, at any time or from time to time, without
notice to any Guarantor or to any other Person, any such notice being expressly waived, to set off
and to appropriate and apply any and all deposits (general or special) and any other indebtedness
at any time held or owing by such Secured Creditor to or for the credit or the account of such
Guarantor, against and on account of the obligations and liabilities of such Guarantor to such
Secured Creditor under this Guaranty, irrespective of whether or not such Secured Creditor shall
have made any demand hereunder and although said obligations, liabilities, deposits or claims, or
any of them, shall be contingent or unmatured. Notwithstanding anything to the contrary contained
in this Guaranty, at any time that the Guaranteed Obligations shall be secured by any Real Property
located in the State of California, no Secured Creditor shall exercise any right of set-off, lien
or counterclaim or take any court or administrative action or institute any proceedings to enforce
any provisions of this Guaranty without the prior consent of the Administrative Agent or the
Required Lenders or, to the extent required by Section 13.12 of the Credit Agreement, all of the
Lenders, if such setoff or action or proceeding would or might (pursuant to Sections 580a, 580b,
580d and 726 of the California Code of Civil Procedure or Section 2924 of the California Civil
Code, if applicable, or otherwise) affect or impair the validity, priority, or enforceability of
the liens granted to the Collateral Agent pursuant to the Security Documents or the enforceability
of the Guaranteed Obligations hereunder, and any attempted exercise by any Secured Creditor or the
Administrative Agent of any such right without obtaining such consent of the Required Lenders or
the Administrative Agent shall be null and void. It is understood and agreed that the foregoing
sentence of this Section 18 is for the sole benefit of the Secured Creditors and may be amended,
modified or waived in any respect by the Required Lenders without the requirement of prior notice
to or consent by any Credit Party and does not constitute a waiver of any rights against any Credit
Party or against any Collateral. Each Secured Creditor (by its acceptance of the benefits hereof)
acknowledges and agrees that the provisions of this Section 18 are subject to the sharing
provisions set forth in Section 13.06(b) of the Credit Agreement.




          19. All notices, requests, demands or other communications pursuant hereto shall be deemed to
have been duly given or made when delivered to the Person to which such notice, request, demand or
other communication is required or permitted to be given or made under this Guaranty, addressed to
such party at (i) in the case of any Lender Creditor, as provided in the Credit Agreement, (ii) in
the case of any Secured Cash Management Bank, as provided in the applicable Secured Cash Management
Agreement and (iii) in the case of any Guarantor, at its address set forth opposite its signature
below; or in any case at such other address as any of the Persons listed above may hereafter notify
the others in writing.




          20. If claim is ever made upon any Secured Creditor for repayment or recovery of any amount or
amounts received in payment or on account of any of the Guaranteed Obligations and any of the
aforesaid payees repays all or part of said amount by reason of (i) any






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judgment, decree or order of any court or administrative body having jurisdiction over such
payee or any of its property or (ii) any settlement or compromise of any such claim effected by
such payee with any such claimant (including the Borrower or any other Guaranteed Party), then and
in such event each Guarantor agrees that any such judgment, decree, order, settlement or compromise
shall be binding upon such Guarantor, notwithstanding any revocation hereof or the cancellation of
any Note, or any other instrument evidencing any liability of the Borrower or any other Guaranteed
Party, and such Guarantor shall be and remain liable to the aforesaid payees hereunder for the
amount so repaid or recovered to the same extent as if such amount had never originally been
received by any such payee.




          21. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE SECURED CREDITORS AND OF THE
UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK. Any legal action or proceeding with respect to this Guaranty or any other Credit
Document to which any Guarantor is a party may be brought in the courts of the State of New York or
of the United States of America for the Southern District of New York, in each case located within
the City of New York, and, by execution and delivery of this Guaranty, each Guarantor hereby
irrevocably accepts for itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. Each Guarantor hereby further irrevocably waives any claim
that any such courts lack jurisdiction over such Guarantor, and agrees not to plead or claim, in
any legal action or proceeding with respect to this Guaranty or any other Credit Document to which
such Guarantor is a party brought in any of the aforesaid courts, that any such court lacks
jurisdiction over such Guarantor. Each Guarantor further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to each Guarantor at its address
set forth opposite its signature below, such service to become effective 30 days after such
mailing. Each Guarantor hereby irrevocably waives any objection to such service of process and
further irrevocably waives and agrees not to plead or claim in any action or proceeding commenced
hereunder or under any other Credit Document to which such Guarantor is a party that such service
of process was in any way invalid or ineffective. Nothing herein shall affect the right of any of
the Secured Creditors to serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against each Guarantor in any other jurisdiction.




          (b) Each Guarantor hereby irrevocably waives any objection which it may now or hereafter have
to the laying of venue of any of the aforesaid actions or proceedings arising out of or in
connection with this Guaranty or any other Credit Document to which such Guarantor is a party
brought in the courts referred to in clause (a) above and hereby further irrevocably waives and
agrees not to plead or claim in any such court that such action or proceeding brought in any such
court has been brought in an inconvenient forum.




          (c) EACH GUARANTOR AND EACH SECURED CREDITOR (BY ITS ACCEPTANCE OF THE BENEFITS OF THIS
GUARANTY) HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH SUCH
GUARANTOR IS A PARTY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.







-11-









 








          22. In the event that all of the capital stock or other Equity Interests of one or more
Guarantors is sold or otherwise disposed of or liquidated in compliance with the requirements of
Section 10.02 of the Credit Agreement (or such sale, other disposition or liquidation has been
approved in writing by the Required Lenders (or all Lenders if required by Section 13.12 of the
Credit Agreement)) and the proceeds of such sale, disposition or liquidation are applied in
accordance with the provisions of the Credit Agreement, to the extent applicable, such Guarantor
shall, upon consummation of such sale or other disposition (except to the extent that such sale or
disposition is to the Borrower or any of its Wholly-Owned Subsidiaries), be released from this
Guaranty and this Guaranty shall, as to each such Guarantor or Guarantors, terminate, and have no
further force or effect (it being understood and agreed that the sale of one or more Persons that
own, directly or indirectly, all of the capital stock or other equity interests of any Guarantor
shall be deemed to be a sale of such Guarantor for the purposes of this Section 22).




          23. Each Guarantor and each Secured Creditor (by its acceptance of the benefits of this
Guaranty) hereby confirms that it is its intention that this Guaranty not constitute a fraudulent
transfer or conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act
of any similar Federal or state law. To effectuate the foregoing intention, each Guarantor and
each Secured Creditor (by its acceptance of the benefits of this Guaranty) hereby irrevocably
agrees that the Guaranteed Obligations guaranteed by such Guarantor shall be limited to such amount
as will, after giving effect to such maximum amount and all other (contingent or otherwise)
liabilities of such Guarantor that are relevant under such laws (it being understood that it is the
intention of the parties to this Guaranty and the parties to any guaranty of the Existing 2013
Senior Notes, Existing 2014 Senior Notes and the Existing 2016 Senior Notes (collectively, the
“Senior Notes”) that, to the maximum extent permitted under applicable laws, the
liabilities in respect of the guarantees of the Senior Notes shall not be included for the
foregoing purposes and that, if any reduction is required to the amount guaranteed by any Guarantor
hereunder and with respect to the Senior Notes that its guarantee of amounts owing in respect of
the Senior Notes shall first be reduced) and after giving effect to any rights to contribution
pursuant to any agreement providing for an equitable contribution among such Guarantor and the
other Guarantors, result in the Guaranteed Obligations of such Guarantor in respect of such maximum
amount not constituting a fraudulent transfer or conveyance. Notwithstanding the provisions of the
two preceding sentences, as between the Secured Creditors and the holders of the Senior Notes, it
is agreed (and the provisions of the relevant indentures governing the Senior Notes so provide)
that any diminution (whether pursuant to court decree or otherwise) of any Guarantor’s obligation
to make any distribution or payment pursuant to this Guaranty shall have no force or effect for
purposes of the subordination provisions contained in the respective indenture governing such
Senior Notes, and that any payments received in respect of a Guarantor’s obligations with respect
to the Senior Notes shall be turned over to the holders of the Guarantor Senior Debt (as defined in
each indenture governing Senior Notes) (or obligations which would have constituted Guarantor
Senior Debt if same had not been reduced or disallowed) of such Guarantor (which Guarantor Senior
Debt shall be calculated as if there were no diminution thereto pursuant to this Section 23 or for
any other reason other than the irrevocable payment in full in cash of the respective obligations
which would otherwise have constituted Guarantor Senior Debt) until all such Guarantor Senior Debt
(or obligations which would have constituted Guarantor Senior Debt if same had not been reduced or
disallowed) has been irrevocably paid in full in cash.







-12-









 








          24. This Guaranty may be executed in any number of counterparts and by the different parties
hereto on separate counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the Administrative Agent.




          25. It is understood and agreed that any Wholly-Owned Domestic Subsidiary of the Borrower that
is required to become a party to this Guaranty after the date hereof pursuant to the requirements
of the Credit Agreement shall become a Guarantor hereunder by (x) executing a counterpart hereof
and/or an assumption agreement, in each case in form and substance reasonably satisfactory to the
Administrative Agent, and (y) taking all actions as specified in this Guaranty as would have been
taken by such Guarantor had it been an original party to this Guaranty, in each case with all
documents and actions required to be taken to be taken above to the reasonable satisfaction of the
Administrative Agent.




          26. (a) All payments made by any Guarantor hereunder will be made without setoff,
counterclaim or other defense, will be made in the relevant Available Currency in which the
respective Guaranteed Obligations are owing and will be made on the same basis as payments are made
by the Borrower under Sections 5.03 and 5.04 of the Credit Agreement and in accordance with the
following provisions of this Section 26.




          (b) The Guarantors obligations hereunder to make payments in the respective Available Currency
(such Available Currency being herein called the “Obligation Currency”) shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency, except to the extent that such
tender or recovery results in the effective receipt by the Administrative Agent, the Collateral
Agent or the respective other Secured Creditor of the full amount of the Obligation Currency
expressed to be payable to the Administrative Agent, the Collateral Agent or such other Secured
Creditor under this Guaranty or the other Credit Documents as applicable. If for the purpose of
obtaining or enforcing judgment against any Guarantor in any court or in any jurisdiction, it
becomes necessary to convert into or from any currency other than the Obligation Currency (such
other currency being hereinafter referred to as the “Judgment Currency”) an amount due in
the Obligation Currency, the conversion shall be made, at the Dollar Equivalent thereof, as the
case may be, or, in the case of conversion into other currencies, at the rate of exchange (as
quoted by the Administrative Agent or if the Administrative Agent does not quote a rate of exchange
on such currency, by a known dealer in such currency designated by the Administrative Agent)
determined, in each case, as of the date immediately preceding the day on which the judgment is
given (such day being hereinafter referred to as the “Judgment Currency Conversion Date”).




          (c) If there is a change in the rate of exchange prevailing between the Judgment Currency
Conversion Date and the date of actual payment of the amount due, the Guarantors jointly and
severally covenant and agree to pay, or cause to be paid, such additional amounts, if any (but in
any event not a lesser amount), as may be necessary to ensure that the amount paid in the Judgment
Currency, when converted at the rate of exchange prevailing on the date of payment, will produce
the amount of the Obligation Currency which could have been






-13-









 







purchased with the amount of Judgment Currency stipulated in the judgment or judicial award at
the rate of exchange prevailing on the Judgment Currency Conversion Date.




          (d) For purposes of determining the Euro Equivalent, the Dollar Equivalent or any other rate
of exchange for this Section 26, such amounts shall include any premium and costs payable in
connection with the purchase of the Obligation Currency.




          27. At any time a payment in respect of the Guaranteed Obligations is made under this
Guaranty, the right of contribution of each Guarantor against each other Guarantor shall be
determined as provided in the immediately following sentence, with the right of contribution of
each Guarantor to be revised and restated as of each date on which a payment (a “Relevant
Payment”) is made on the Guaranteed Obligations under this Guaranty. At any time that a
Relevant Payment is made by a Guarantor that results in the aggregate payments made by such
Guarantor in respect of the Guaranteed Obligations to and including the date of the Relevant
Payment exceeding such Guarantor’s Contribution Percentage (as defined below) of the aggregate
payments made by all Guarantors in respect of the Guaranteed Obligations to and including the date
of the Relevant Payment (such excess, the “Aggregate Excess Amount”), each such Guarantor
shall have a right of contribution against each other Guarantor who has made payments in respect of
the Guaranteed Obligations to and including the date of the Relevant Payment in an aggregate amount
less than such other Guarantor’s Contribution Percentage of the aggregate payments made to and
including the date of the Relevant Payment by all Guarantors in respect of the Guaranteed
Obligations (the aggregate amount of such deficit, the “Aggregate Deficit Amount”) in an
amount equal to (x) a fraction the numerator of which is the Aggregate Excess Amount of such
Guarantor and the denominator of which is the Aggregate Excess Amount of all Guarantors multiplied
by (y) the Aggregate Deficit Amount of such other Guarantor. A Guarantor’s right of contribution
pursuant to the preceding sentences shall arise at the time of each computation, subject to
adjustment to the time of each computation; provided that no Guarantor may take any action
to enforce such right until the Guaranteed Obligations have been irrevocably paid in full in cash,
it being expressly recognized and agreed by all parties hereto that any Guarantor’s right of
contribution arising pursuant to this Section 27 against any other Guarantor shall be expressly
junior and subordinate to such other Guarantor’s obligations and liabilities in respect of the
Guaranteed Obligations and any other obligations owing under this Guaranty. As used in this
Section 27: (i) each Guarantor’s “Contribution Percentage” shall mean the percentage
obtained by dividing (x) the Adjusted Net Worth (as defined below) of such Guarantor by (y) the
aggregate Adjusted Net Worth of all Guarantors; (ii) the “Adjusted Net Worth” of each
Guarantor shall mean the greater of (x) the Net Worth (as defined below) of such Guarantor and (y)
zero; and (iii) the “Net Worth” of each Guarantor shall mean the amount by which the fair
saleable value of such Guarantor’s assets on the date of any Relevant Payment exceeds its existing
debts and other liabilities (including contingent liabilities, but without giving effect to any
Guaranteed Obligations arising under this Guaranty or any guaranteed obligations arising under any
guaranty of the Senior Notes) on such date. All parties hereto recognize and agree that, except
for any right of contribution arising pursuant to this Section 27, each Guarantor who makes any
payment in respect of the Guaranteed Obligations shall have no right of contribution or subrogation
against any other Guarantor in respect of such payment until all of the Guaranteed Obligations have
been irrevocably paid in full in cash. Each of the Guarantors recognizes and acknowledges that the
rights to contribution arising hereunder shall constitute an asset in favor of the party entitled
to such contribution. In this connection, each Guarantor has






-14-









 







the right to waive its contribution right against any Guarantor to the extent that after
giving effect to such waiver such Guarantor would remain solvent, in the determination of the
Required Lenders.




* * *









-15-









 








[Signature Pages Intentionally Omitted]




S-1









 








	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Borrowing base as of [ ]	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Packaged Foods	 	 	Packaged Frozen	 	 	Fresh Vegetables	 	 	Fresh Fruit	 	 	FF Packaging	 	 	Total	 
	Total accounts receivable
	 	$	0	 	 	 	 	 	 	$	0	 	 	$	0	 	 	$	0	 	 	$	0	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Ineligible AR
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Aged accounts receivable
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Unapplied cash
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Allowance accrual
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Chargebacks
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	In-transit
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Shortpayments
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	AR-related accruals
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Aged credits
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Cross-age (50%)
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Contras
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Freight receivables
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Modified receivables
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Backlogged credit memos
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Bankrupt obligors
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Intercompany accounts
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Non-trade AR
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Canadian GST
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Foreign accounts
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Other
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total ineligibles
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Eligible accounts receivable
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Advance rate
	 	 	85.0	%	 	 	 	 	 	 	85.0	%	 	 	85.0	%	 	 	85.0	%	 	 	 	 
	Receivable availability
	 	$	0	 	 	 	 	 	 	$	0	 	 	$	0	 	 	$	0	 	 	$	0	 
	Dilution reserve
	 	 	—	 	 	 	 	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Net AR availability
	 	$	0	 	 	 	 	 	 	$	0	 	 	$	0	 	 	$	0	 	 	$	0	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total inventory
	 	$	0	 	 	$	0	 	 	$	0	 	 	$	0	 	 	$	0	 	 	$	0	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Ineligible inventory
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Freight accrual
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Deferred crop costs
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Packaging materials
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Maintenance parts
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Fruit inventory reserve
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Operating supplies
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Capitalized variances
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Packaging reserve
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Supplies & other
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total ineligibles
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Eligible inventory
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 
	Advance rate (capped)
	 	 	72.0	%	 	 	72.0	%	 	 	57.0	%	 	 	70.0	%	 	 	70.0	%	 	 	 	 
	(A) Inventory availability
(capped advance rate)
	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	$	0	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Appraised NOLV
	 	 	91.9	%	 	 	75.1	%	 	 	71.8	%	 	 	95.0	%	 	 	55.0	%	 	 	 	 
	85% of appraised NOLV
	 	 	78.1	%	 	 	63.8	%	 	 	61.0	%	 	 	80.8	%	 	 	46.8	%	 	 	 	 
	(B) Inventory availability
(85% of NOLV basis)
	 	$	0	 	 	$	0	 	 	$	0	 	 	$	0	 	 	$	0	 	 	$	0	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Lesser of total of (A) or (B)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	0	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total availability
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	0	 
	Loans outstanding as of o
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 
	Letters of credit as of o
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	—	 
	PACA reserve
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	(5,070	)
	Rent reserve
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	(5,438	)
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Net availability
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	($10,508	)