exv10w1






			
	Exhibit 10.1
	 	AS AMENDED BY AMENDMENT NO. 3






      




CREDIT AGREEMENT




among



DOLE FOOD COMPANY, INC.,



SOLVEST, LTD.,



VARIOUS LENDING INSTITUTIONS,



DEUTSCHE BANK AG NEW YORK BRANCH,

as Administrative Agent and as Deposit Bank,



BANC OF AMERICA SECURITIES LLC,

as Syndication Agent,



and



THE BANK OF NOVA SCOTIA

and

RABOBANK INTERNATIONAL,

as Co-Documentation Agents



Dated as of March 28, 2003,



Amended and Restated as of April 18, 2005



and 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



 





DEUTSCHE BANK SECURITIES INC.,

BANC OF AMERICA SECURITIES LLC

and

WELLS FARGO SECURITIES, LLC,

as Joint Lead Arrangers and Joint Book Runners

for Amendment No. 3



 





      

















 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	Section 1. Amount and Terms of Credit
	 	 	1	 
	 
	 	 	 	 
	1.01 Commitments
	 	 	1	 
	1.02 Minimum Borrowing Amounts, etc.
	 	 	2	 
	1.03 Notice of Borrowing
	 	 	3	 
	1.04 Disbursement of Funds
	 	 	3	 
	1.05 Notes
	 	 	4	 
	1.06 Conversions
	 	 	4	 
	1.07 Pro Rata Borrowings
	 	 	5	 
	1.08 Interest
	 	 	5	 
	1.09 Interest Periods
	 	 	6	 
	1.10 Increased Costs; Illegality; etc.
	 	 	7	 
	1.11 Compensation
	 	 	9	 
	1.12 Change of Lending Office
	 	 	10	 
	1.13 Replacement of Lenders
	 	 	10	 
	1.14 Special Provisions Applicable to Lenders upon the Occurrence of a Sharing Event
	 	 	12	 
	1.15 Incremental Term Loan Commitments
	 	 	14	 
	 
	 	 	 	 
	Section 2. Letters of Credit; Bank Guaranties; Etc.
	 	 	16	 
	 
	 	 	 	 
	2A.01 Letters of Credit
	 	 	16	 
	2A.02 Minimum Stated Amount
	 	 	17	 
	2A.03 Letter of Credit Requests
	 	 	18	 
	2A.04 Letter of Credit Participations
	 	 	18	 
	2A.05 Agreement to Repay Letter of Credit Drawings
	 	 	21	 
	2A.06 Increased Costs
	 	 	22	 
	 
	 	 	 	 
	Section 2B. Bank Guaranties
	 	 	22	 
	 
	 	 	 	 
	2B.01 Bank Guaranties
	 	 	22	 
	2B.02 Minimum Face Amount
	 	 	24	 
	2B.03 Bank Guaranty Requests
	 	 	24	 
	2B.04 Bank Guaranty Participations
	 	 	25	 
	2B.05 Agreement to Repay Bank Guaranty Payments
	 	 	27	 
	2B.06 Increased Costs
	 	 	28	 
	2B.07 Cash Collateralization
	 	 	29	 
	 
	 	 	 	 
	Section 2C. Special Provisions
	 	 	29	 
	 
	 	 	 	 
	2C.01 Credit-Linked Deposit Account
	 	 	29	 
	2C.02 European Monetary Union
	 	 	31	 
	2C.03 Special Provisions Regarding Non-Dollar Denominated Letters of
Credit and Non-Dollar Denominated Bank Guaranties
	 	 	31	 
	2C.04 Special Provisions Regarding Return of Credit-Linked Deposits
	 	 	32	 






-i-









 





	 	 	 	 	 
	 	 	Page
	Section 3. Fees; Termination of Commitments
	 	 	33	 
	 
	 	 	 	 
	3.01 Fees
	 	 	33	 
	3.02 Voluntary Termination or Reduction of Commitments and Adjustments of
Commitments
	 	 	35	 
	3.03 Mandatory Reduction of Commitments
	 	 	36	 
	 
	 	 	 	 
	Section 4. Prepayments; Repayments; Taxes
	 	 	37	 
	 
	 	 	 	 
	4.01 Voluntary Prepayments
	 	 	37	 
	4.02 Mandatory Repayments and Commitment Reductions
	 	 	37	 
	4.03 Method and Place of Payment
	 	 	43	 
	4.04 Net Payments
	 	 	43	 
	 
	 	 	 	 
	Section 5. [Reserved]
	 	 	45	 
	 
	 	 	 	 
	Section 6. Conditions Precedent to All Credit Events
	 	 	45	 
	 
	 	 	 	 
	6.01 No Default; Representations and Warranties
	 	 	45	 
	6.02 Notice of Borrowing; Letter of Credit Request; etc.
	 	 	45	 
	6.03 Incremental Term Loans
	 	 	45	 
	 
	 	 	 	 
	Section 7. Representations and Warranties
	 	 	46	 
	 
	 	 	 	 
	7.01 Company Status
	 	 	46	 
	7.02 Company Power and Authority
	 	 	46	 
	7.03 No Violation
	 	 	46	 
	7.04 Litigation
	 	 	46	 
	7.05 Use of Proceeds; Margin Regulations
	 	 	47	 
	7.06 Governmental Approvals
	 	 	47	 
	7.07 Investment Company Act
	 	 	47	 
	7.08 True and Complete Disclosure
	 	 	47	 
	7.09 Financial Condition; Financial Statements
	 	 	48	 
	7.10 Security Interests
	 	 	48	 
	7.11 Compliance with ERISA
	 	 	49	 
	7.12 Subsidiaries
	 	 	50	 
	7.13 Intellectual Property, etc.
	 	 	50	 
	7.14 Compliance with Statutes; Agreements, etc.
	 	 	51	 
	7.15 Environmental Matters
	 	 	51	 
	7.16 Properties
	 	 	51	 
	7.17 Labor Relations
	 	 	52	 
	7.18 Tax Returns and Payments
	 	 	52	 
	7.19 Insurance
	 	 	53	 
	7.20 Special Purpose Corporations
	 	 	53	 
	7.21 Subordination
	 	 	53	 
	 
	 	 	 	 
	Section 8. Affirmative Covenants
	 	 	53	 
	 
	 	 	 	 
	8.01 Information Covenants
	 	 	53	 
	8.02 Books, Records and Inspections
	 	 	57	 






-ii-









 





	 	 	 	 	 
	 	 	Page
	8.03 Insurance
	 	 	57	 
	8.04 Payment of Taxes
	 	 	58	 
	8.05 Existence; Franchises
	 	 	58	 
	8.06 Compliance with Statutes; etc.
	 	 	58	 
	8.07 Compliance with Environmental Laws
	 	 	58	 
	8.08 ERISA
	 	 	59	 
	8.09 Good Repair
	 	 	60	 
	8.10 End of Fiscal Years; Fiscal Quarters
	 	 	60	 
	8.11 Additional Security; Additional Guaranties; Actions with Respect to
Non-Guarantor Subsidiaries; Further Assurances
	 	 	60	 
	8.12 Use of Proceeds
	 	 	64	 
	8.13 Ownership of Subsidiaries
	 	 	64	 
	8.14 Maintenance of Company Separateness
	 	 	65	 
	8.15 Performance of Obligations
	 	 	65	 
	8.16 Margin Stock
	 	 	65	 
	8.17 Foreign Security Document Amendments
	 	 	65	 
	 
	 	 	 	 
	Section 9. Negative Covenants
	 	 	66	 
	 
	 	 	 	 
	9.01 Changes in Business; etc.
	 	 	66	 
	9.02 Consolidation; Merger and Sale of Assets
	 	 	67	 
	9.03 Liens
	 	 	69	 
	9.04 Indebtedness
	 	 	72	 
	9.05 Advances; Investments; Loans
	 	 	75	 
	9.06 Restricted Payments; etc.
	 	 	77	 
	9.07 Transactions with Affiliates
	 	 	78	 
	9.08 Limitation on Voluntary Payments and Modifications of Indebtedness;
Modifications of Certificate of Incorporation, By-Laws and Certain Other
Agreements; Issuances of Capital Stock; etc.
	 	 	78	 
	9.09 Limitation on Issuance of Equity Interests
	 	 	79	 
	9.10 Limitation on Certain Restrictions on Subsidiaries
	 	 	79	 
	9.11 Special Restrictions Relating to Principal Property
	 	 	80	 
	9.12 Financial Maintenance Covenants
	 	 	80	 
	 
	 	 	 	 
	Section 10. Events of Default
	 	 	81	 
	 
	 	 	 	 
	10.01 Payments
	 	 	81	 
	10.02 Representations, etc.
	 	 	81	 
	10.03 Covenants
	 	 	82	 
	10.04 Default Under Other Agreements
	 	 	82	 
	10.05 Bankruptcy, etc.
	 	 	82	 
	10.06 ERISA
	 	 	83	 
	10.07 Security Documents
	 	 	83	 
	10.08 Guaranties
	 	 	84	 
	10.09 Judgments
	 	 	84	 
	10.10 Ownership
	 	 	84	 
	10.11 Denial of Liability
	 	 	84	 
	10.12 Governmental Action
	 	 	84	 
	10.13 Special Defaults Relating to Bermuda Entities
	 	 	85	 






-iii-









 







	 	 	 	 	 
	 	 	Page
	Section 11. Definitions
	 	 	85	 
	 
	 	 	 	 
	Section 12. The Agents
	 	 	129	 
	 
	 	 	 	 
	12.01 Appointment
	 	 	129	 
	12.02 Nature of Duties
	 	 	130	 
	12.03 Certain Rights of the Agents
	 	 	131	 
	12.04 Reliance by Agents
	 	 	131	 
	12.05 Notice of Default, etc.
	 	 	131	 
	12.06 Nonreliance on Agents and Other Lenders
	 	 	131	 
	12.07 Indemnification
	 	 	132	 
	12.08 Agents in Their Individual Capacities
	 	 	132	 
	12.09 Holders
	 	 	133	 
	12.10 Resignation of the Agents
	 	 	133	 
	12.11 Collateral Matters
	 	 	134	 
	12.12 Delivery of Information
	 	 	135	 
	12.13 Special Appointment of Collateral Agent (Germany)
	 	 	135	 
	12.14 Special Provisions Relating to Canadian Security Documents
	 	 	136	 
	12.15 Special Appointment of Collateral Agent (Italy)
	 	 	136	 
	12.16 Continuing Indemnities for Original Agents
	 	 	137	 
	12.17 Parallel Debt owed to the Collateral Agent
	 	 	137	 
	 
	 	 	 	 
	Section 13. Miscellaneous
	 	 	138	 
	 
	 	 	 	 
	13.01 Payment of Expenses, etc.
	 	 	138	 
	13.02 Right of Setoff
	 	 	139	 
	13.03 Notices
	 	 	140	 
	13.04 Benefit of Agreement
	 	 	140	 
	13.05 No Waiver; Remedies Cumulative
	 	 	143	 
	13.06 Payments Pro Rata
	 	 	143	 
	13.07 Calculations; Computations
	 	 	143	 
	13.08 Governing Law; Submission to Jurisdiction; Venue
	 	 	144	 
	13.09 Counterparts
	 	 	145	 
	13.10 Effectiveness
	 	 	145	 
	13.11 Headings Descriptive
	 	 	145	 
	13.12 Amendment or Waiver; etc.
	 	 	145	 
	13.13 Survival
	 	 	148	 
	13.14 Domicile of Loans and Commitments
	 	 	148	 
	13.15 Confidentiality
	 	 	148	 
	13.16 Waiver of Jury Trial
	 	 	149	 
	13.17 Register
	 	 	149	 
	13.18 English Language
	 	 	150	 
	13.19 Special Provisions Regarding Pledges of Equity Interests in, and
Promissory Notes Owed by, Persons Not Organized in Qualified Jurisdictions;
Special Provisions Regarding Foreign Security Documents and Secured Hedge
Counterparties
	 	 	150	 
	13.20 Powers of Attorney; etc.
	 	 	151	 
	13.21 Waiver of Sovereign Immunity
	 	 	152	 
	13.22 Judgment Currency
	 	 	152	 
	13.23 Special Acknowledgments
	 	 	153	 






-iv-









 






	 	 	 	 	 
	 	 	Page
	13.24 Special Provisions Relating to Amendment and Restatement
	 	 	153	 
	13.25 USA Patriot Act
	 	 	154	 
	13.26 Other Liens on Collateral; Terms of Intercreditor Agreement; etc.
	 	 	154	 
	13.27 Post-Closing Actions
	 	 	155	 
	 
	 	 	 	 
	Section 14. Borrower Guaranty
	 	 	155	 
	 
	 	 	 	 
	14.01 The Guaranty
	 	 	155	 
	14.02 Bankruptcy
	 	 	156	 
	14.03 Nature of Liability
	 	 	156	 
	14.04 Independent Obligation
	 	 	156	 
	14.05 Authorization
	 	 	157	 
	14.06 Reliance
	 	 	158	 
	14.07 Subordination
	 	 	158	 
	14.08 Waiver
	 	 	158	 
	14.09 Payments
	 	 	160	 






	 	 	 	 	 
	Schedule I

	 	-
	 	List of Lenders and Commitments
	Schedule II

	 	-
	 	Lender Addresses
	Schedule III

	 	-
	 	Real Properties
	Schedule IV

	 	-
	 	Existing Indebtedness
	Schedule V

	 	-
	 	Pension Plans
	Schedule VI

	 	-
	 	Existing Investments
	Schedule VII

	 	-
	 	Subsidiaries
	Schedule VIII

	 	-
	 	Insurance
	Schedule IX

	 	-
	 	Existing Liens
	Schedule X

	 	-
	 	Capitalization
	Schedule XI

	 	-
	 	Existing Letters of Credit
	Schedule XII

	 	-
	 	Certain Foreign Security Documents; Foreign Subsidiaries Party to Foreign Security Documents, etc.
	Schedule XIII

	 	-
	 	Non-Guarantor Subsidiaries; Excluded Foreign Subsidiaries
	Schedule XIV

	 	-
	 	Transactions with Affiliates
	Schedule XV

	 	-
	 	Principal Properties
	Schedule XVI

	 	-
	 	Tax Matters
	Schedule XVII

	 	-
	 	Initial Qualified Jurisdictions
	Schedule XVIII

	 	-
	 	Post-Closing Matters
	 
	Exhibit A-1

	 	-
	 	Form of Notice of Borrowing
	Exhibit A-2

	 	-
	 	Form of Notice of Conversion/Continuation
	Exhibit B-1

	 	-
	 	Form of Tranche B-1 Term Note
	Exhibit B-2

	 	-
	 	Form of Tranche C-1 Term Note
	Exhibit B-3

	 	-
	 	Form of Incremental Term Note
	Exhibit C-1

	 	-
	 	Form of Letter of Credit Request
	Exhibit C-2

	 	-
	 	Form of Bank Guaranty Request
	Exhibit D

	 	-
	 	Form of Section 4.04(b)(ii) Certificate
	Exhibit E-1

	 	-
	 	Form of U.S. Subsidiaries Guaranty
	Exhibit E-2

	 	-
	 	Form of Foreign Subsidiaries Guaranty Acknowledgment
	Exhibit E-3

	 	-
	 	Form of Foreign Subsidiaries Guaranty
	Exhibit F-1

	 	-
	 	Form of U.S. Pledge Agreement






-v-









 






	 	 	 	 	 
	Exhibit F-2

	 	-
	 	Form of U.S. Security Agreement
	Exhibit G

	 	-
	 	Form of Assignment and Assumption Agreement
	Exhibit H-1

	 	-
	 	Form of Intercompany Subordination Acknowledgment
	Exhibit H-2

	 	-
	 	Form of Intercompany Subordination Agreement
	Exhibit I

	 	-
	 	Form of Incremental Term Loan Commitment Agreement






-vi-









 







          CREDIT AGREEMENT, dated as of March 28, 2003, amended and restated as of April 18, 2005,
further amended and restated as of April 12, 2006, as amended 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 “U.S. Borrower”), SOLVEST, LTD., a company organized under the laws of
Bermuda (the “Bermuda Borrower” and, together with the U.S. Borrower, the
“Borrowers”), the Lenders from time to time party hereto, DEUTSCHE BANK AG NEW YORK BRANCH,
as Deposit Bank (in such capacity, the “Deposit Bank”), DEUTSCHE BANK AG NEW YORK BRANCH,
as Administrative Agent (in such capacity, the “Administrative Agent”), BANC OF AMERICA
SECURITIES LLC, as Syndication Agent (in such capacity, the “Syndication Agent”), THE BANK
OF NOVA SCOTIA and RABOBANK INTERNATIONAL, as Co-Documentation Agents (in such capacity, each, a
"Co-Documentation Agent” and, collectively, the “Co-Documentation Agents”), and
DEUTSCHE BANK SECURITIES INC., as Lead Arranger and Sole Book Runner (in such capacity, the
"Lead Arranger”). Unless otherwise defined herein, all capitalized terms used herein and
defined in Section 11 are used herein as so defined.




W I T N E S S E T H




          WHEREAS, the Borrowers, the Original Lenders, Deutsche Bank AG New York Branch, as
Administrative Agent, Banc of America Securities LLC and The Bank of Nova Scotia, as Co-Syndication
Agents, Fortis Capital Corporation, Harris Trust and Savings Bank and Rabobank International, as
Co-Documentation Agents, and Deutsche Bank Securities Inc., Banc of America Securities LLC and The
Bank of Nova Scotia, as Joint Lead Arrangers, are party to a Credit Agreement, dated as of March
28, 2003 and amended and restated as of April 18, 2005 (as the same has been further amended,
restated, modified and/or supplemented to, but not including, the Restatement Effective Date, the
"Original Credit Agreement”); and




          WHEREAS, the parties hereto wish to amend and restate the Original Credit Agreement in the
form of this Agreement;




          NOW, THEREFORE, the parties hereto agree that, effective as of the Restatement Effective Date,
the Original Credit Agreement shall be, and hereby is, amended and restated in its entirety as
follows:




          Section 1. Amount and Terms of Credit.




          1.01 Commitments.




          (a) Tranche B-1 Term Loans. Subject to and upon the terms and conditions set forth
herein, each Lender with a Tranche B-1 Term Loan Commitment severally agrees to make a term loan in
Dollars (each, a “Tranche B-1 Term Loan” and, collectively, the “Tranche B-1 Term
Loans”) to the U.S. Borrower on the Amendment No. 3 Effective Date in an amount equal to its
Tranche B-1 Term Loan Commitment. Except as hereinafter provided, Tranche B-1 Term Loans shall, at
the option of the U.S. Borrower, be incurred and maintained as one or more Borrowings of Base Rate
Loans or Eurodollar Loans; provided that unless the Administrative Agent has determined
that the Syndication Date has occurred, no more than four Borrowings of Tranche B-1 Term Loans to
be maintained as Eurodollar Loans may be incurred prior to the 30th day after the Amendment No. 3
Effective Date (or, if later, the last day of the Interest Period applicable to the fourth
Borrowing of Eurodollar Loans referred to below), each of which Borrowings of Eurodollar Loans may
only have an Interest Period of one week, and the first of which Borrowings may be made no earlier
than the third Business Day, and no later than the fifth Business Day, after the Amendment No. 3
Effective Date, the second of which Borrowings may only be made on the last day of the Interest
Period of the first such Borrowing, the third of which Borrowings may only
















 







be made on the last day of the Interest Period of the second such Borrowing and the fourth of
which Borrowings may only be made on the last day of the Interest Period of the third such
Borrowing. Once repaid, Tranche B-1 Term Loans may not be reborrowed. The U.S. Borrower agrees to
pay on the Amendment No. 3 Effective Date to each Lender party to this Agreement on the Amendment
No. 3 Effective Date, as compensation for the funding of such Lender’s Tranche B-1 Term Loan, a
closing fee (the “Tranche B-1 Closing Fee”) in an amount equal to 1.00% of the principal
amount of such Lender’s Tranche B-1 Term Loan made on the Amendment No. 3 Effective Date. Such
Tranche B-1 Closing Fee will be in all respects fully earned, due and payable on the Amendment No.
3 Effective Date and non-refundable and non-creditable thereafter and such Tranche B-1 Closing Fee
shall be netted against the Tranche B-1 Term Loans made by such Lender.




          (b) Tranche C-1 Term Loans. Subject to and upon the terms and conditions set forth
herein, each Tranche C-1 Term Loan Lender severally agrees to make a term loan in Dollars (each, a
"Tranche C-1 Term Loan” and, collectively, the “Tranche C-1 Term Loans”) to the
Bermuda Borrower on the Amendment No. 3 Effective Date in an amount equal to its Tranche C-1 Term
Loan Commitment. Except as hereinafter provided, Tranche C-1 Term Loans shall, at the option of
the Bermuda Borrower, be incurred and maintained as, and/or converted into, one or more Borrowings
of Base Rate Loans or Eurodollar Loans, provided that unless the Administrative Agent has
determined that the Syndication Date has occurred, no more than four Borrowings of Tranche C-1 Term
Loans to be maintained as Eurodollar Loans may be incurred prior to the 30th day after the
Amendment No. 3 Effective Date (or, if later, the last day of the Interest Period applicable to the
fourth Borrowing of Eurodollar Loans referred to below), each of which Borrowings of Eurodollar
Loans may only have an Interest Period of one week, and the first of which Borrowings may be made
no earlier than the third Business Day, and no later than the fifth Business Day, after the
Amendment No. 3 Effective Date, the second of which Borrowings may only be made on the last day of
the Interest Period of the first such Borrowing, the third of which Borrowings may only be made on
the last day of the Interest Period of the second such Borrowing and the fourth of which Borrowings
may only be made on the last day of the Interest Period of the third such Borrowing. Once repaid,
Tranche C-1 Term Loans may not be reborrowed. The Bermuda Borrower agrees to pay on the Amendment
No. 3 Effective Date to each Lender party to this Agreement on the Amendment No. 3 Effective Date,
as compensation for the funding of such Lender’s Tranche C-1 Term Loan, a closing fee (the
"Tranche C-1 Closing Fee”) in an amount equal to 1.00% of the principal amount of such
Lender’s Tranche C-1 Term Loan made on the Amendment No. 3 Effective Date. Such Tranche C-1
Closing Fee will be in all respects fully earned, due and payable on the Amendment No. 3 Effective
Date and non-refundable and non-creditable thereafter and such Tranche C-1 Closing Fee shall be
netted against the Tranche C-1 Term Loans made by such Lender.




          (c) Subject to and upon the terms and conditions set forth herein, each Lender with an
Incremental Term Loan Commitment for a given Tranche of Incremental Term Loans severally agrees, on
the Incremental Term Loan Borrowing Date for such Tranche of Incremental Term Loans, to make a term
loan in Dollars (each, an “Incremental Term Loan” and, collectively, the “Incremental
Term Loans”) to the Incremental Term Loan Borrower for such Tranche in an amount equal to its
Incremental Term Loan Commitment for such Tranche. Except as hereinafter provided, Incremental
Term Loans shall, at the option of the Incremental Term Loan Borrower for such Tranche, be incurred
and maintained as, and/or converted into, one or more Borrowings of Base Rate Loans or Eurodollar
Loans. Once repaid, Incremental Term Loans may not be reborrowed.




          1.02 Minimum Borrowing Amounts, etc. The aggregate principal amount of each Borrowing
of Loans shall not be less than $5,000,000. More than one Borrowing may be incurred on any day,
but at no time shall there be outstanding more than 20 Borrowings of Eurodollar Loans.







-2-









 








          1.03 Notice of Borrowing. Whenever a Borrower desires to make a Borrowing of Loans
hereunder, an Authorized Officer of such Borrower shall give the Administrative Agent at its Notice
Office at least one Business Day’s prior written (or telephonic notice promptly confirmed in
writing) notice of each Base Rate Loan and at least three Business Days’ prior written (or
telephonic notice promptly confirmed in writing) notice of each Eurodollar Loan to be made
hereunder, provided that any such notice shall be deemed to have been given on a certain
day only if given before 2:00 P.M. (New York time) on such day. Each such written notice or
written confirmation of telephonic notice (each, a “Notice of Borrowing”), except as
otherwise expressly provided in Section 1.10, shall be irrevocable and shall be given by or on
behalf of the respective Borrower in the form of Exhibit A-1, appropriately completed to
specify: (i) the aggregate principal amount of the Loans to be made pursuant to such Borrowing,
(ii) the date of such Borrowing (which shall be a Business Day), (iii) whether the respective
Borrowing shall consist of Tranche B-1 Term Loans, Tranche C-1 Term Loans, U.S. Borrower
Incremental Term Loans or Bermuda Borrower Incremental Term Loans and (iv) whether the Loans being
made pursuant to such Borrowing are to be initially maintained as Base Rate Loans or Eurodollar
Loans. The Administrative Agent shall promptly give each Lender which is required to make Loans of
the Tranche specified in the respective Notice of Borrowing notice of such proposed Borrowing, of
such Lender’s proportionate share thereof (determined in accordance with Section 1.07) and of the
other matters required by the immediately preceding sentence to be specified in the Notice of
Borrowing.




          1.04 Disbursement of Funds. Not later than 1:00 P.M. (New York time) on the date
specified in each Notice of Borrowing, each Lender with a Commitment under the respective Tranche
will make available its pro rata portion (determined in accordance with Section 1.07) of each such
Borrowing requested to be made on such date. All such amounts shall be made available in Dollars
and in immediately available funds at the Payment Office of the Administrative Agent, and the
Administrative Agent will make available to the applicable Borrower at the Payment Office or such
other location as may be reasonably satisfactory to the Administrative Agent and specified in the
relevant Notice of Borrowing the aggregate of the amounts so made available by the Lenders prior to
1:00 P.M. (New York time) on such day to the extent of funds actually received by the
Administrative Agent prior to such time on such day (provided that on the Amendment No. 3
Effective Date (i) the proceeds of the Tranche B-1 Term Loans shall be applied, first, to
repay in full the Tranche B Term Loans (as defined in this Agreement immediately prior to giving
effect to Amendment No. 3) together with all accrued and unpaid interest thereon and
thereafter, shall be made available to the U.S. Borrower (ii) the proceeds of the Tranche
C-1 Term Loans shall be applied, first, to repay in full the Tranche C Term Loans (as
defined in this Agreement immediately prior to giving effect to Amendment No. 3) together with all
accrued and unpaid interest thereon and thereafter, shall be made available to the Bermuda
Borrower). 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, in reliance upon such assumption, make available to the
relevant 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 relevant Borrower to pay immediately such corresponding amount to
the Administrative Agent and such Borrower shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to recover on demand from
such Lender or the relevant Borrower 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
relevant 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






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and (ii) if recovered from the relevant Borrower, the rate of interest applicable to the
relevant Borrowing, as determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be
deemed to relieve any Lender from its obligation to make Loans hereunder or to prejudice any rights
which a Borrower may have against any Lender as a result of any failure by such Lender to make
Loans hereunder.




          1.05 Notes.




          (a) At the request of any Lender, the U.S. Borrower’s (in the case of Tranche B-1 Term Loans
and U.S. Borrower Incremental Term Loans) or the Bermuda Borrower’s (in the case of Tranche C-1
Term Loans and Bermuda Borrower Incremental Term Loans) obligation to pay the principal of, and
interest on, the Loans made by such Lender shall be evidenced (i) in the case of Tranche B-1 Term
Loans, by a promissory note duly executed and delivered by the U.S. Borrower substantially in the
form of Exhibit B-1, with blanks appropriately completed in conformity herewith (each, a
"Tranche B-1 Term Note” and, collectively, the “Tranche B-1 Term Notes”), (ii) in
the case of Tranche C-1 Term Loans, by a promissory note duly executed and delivered by the Bermuda
Borrower substantially in the form of Exhibit B-2, with blanks appropriately completed in
conformity herewith (each, a “Tranche C-1 Term Note” and, collectively, the “Tranche
C-1 Term Notes”) and (iii) in the case of Incremental Term Loans, by a promissory note duly
executed and delivered by the applicable Incremental Term Loan Borrower for such Tranche
substantially in the form of Exhibit B-3, with blanks appropriately completed in conformity
herewith (each, an “Incremental Term Note” and, collectively, the “Incremental Term
Notes”).




          (b) Each Lender will note on its internal records the amount of each Loan made by it and each
payment in respect thereof. Failure to make any such notation or any error in any such notation
shall not affect either Borrower’s obligations in respect of any Loans.




          1.06 Conversions. Each Borrower shall have the option to convert, on any Business Day
occurring after the Amendment No. 3 Effective Date, all or a portion equal to at least $5,000,000
(and, if greater, in an integral multiple of $500,000) of the outstanding principal amount of Loans
made to such Borrower pursuant to one or more Borrowings of one or more Types of Loans under a
single Tranche into a Borrowing or Borrowings of another Type of Loan under such Tranche,
provided that (i) except as otherwise provided in Section 1.10(b) or unless the respective
Borrower pays all amounts owing pursuant to Section 1.11 concurrently with any such conversion,
Eurodollar Loans may be converted into Base Rate Loans only on the last day of an Interest Period
applicable to the Eurodollar 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 $5,000,000, (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 conversion, (iii) unless the Administrative Agent has determined that the
Syndication Date has occurred, prior to the 30th day after the Amendment No. 3 Effective Date,
conversions of Base Rate Loans into Eurodollar Loans may only be made if any such conversion is
effective on the first day of the first, second, third or fourth Interest Period referred to in the
provisos appearing in each of Section 1.01(a) and Section 1.01(b) and so long as any such
conversion does not result in a greater number of Borrowings of Eurodollar Loans prior to the 30th
day after the Amendment No. 3 Effective Date as are permitted under Section 1.01(a) and Section
1.01(b), and (iv) no conversion pursuant to this Section 1.06 shall result in a greater number of
Borrowings of Eurodollar Loans than is permitted under Section 1.02. Each such conversion shall be
effected by the applicable Borrower by giving the Administrative Agent at its Notice Office prior
to 2:00 P.M. (New York time) at least three Business Days’ prior notice (each, a “Notice of
Conversion/Continuation”) in the form of Exhibit A-2, appropriately completed to
specify the Loans of such Borrower to be so converted, the Borrowing or Borrowings pursuant to
which such Loans were made and, if to be converted into Eurodollar






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Loans, the Interest Period to be initially applicable thereto. The Administrative Agent shall
give each applicable Lender prompt notice of any such proposed conversion affecting any of its
Loans.




          1.07 Pro Rata Borrowings. All Borrowings of Tranche B-1 Term Loans, Tranche C-1 Term
Loans and Incremental Term Loans of a given Tranche under this Agreement shall be incurred from the
Lenders pro rata on the basis of such Lenders’ Tranche B-1 Term Loan Commitments, Tranche C-1 Term
Loan Commitments or Incremental Term Loan Commitments, as the case may be. 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.




          1.08 Interest.




          (a) The U.S. Borrower hereby agrees to pay (in the case of Tranche B-1 Term Loans and U.S.
Borrower Incremental Term Loans, in each case maintained as Base Rate Loans) and the Bermuda
Borrower hereby agrees to pay (in the case of Tranche C-1 Term Loans and Bermuda Borrower
Incremental Term Loans, in each case maintained as Base Rate Loans) interest in respect of the
unpaid principal amount of each Base Rate Loan made to it from the date of the Borrowing thereof
until the earlier of (i) the maturity (whether by acceleration or otherwise) of such Base Rate Loan
and (ii) the conversion of such Base Rate Loan to a Eurodollar Loan pursuant to Section 1.06, at a
rate per annum which shall be equal to the sum of the Base Rate in effect from time to time during
the period such Base Rate Loan is outstanding plus the relevant Applicable Margin as in
effect from time to time.




          (b) The U.S. Borrower hereby agrees to pay (in the case of Tranche B-1 Term Loans and U.S.
Borrower Incremental Term Loans, in each case maintained as Eurodollar Loans) and the Bermuda
Borrower hereby agrees to pay (in the case of Tranche C-1 Term Loans and Bermuda Borrower
Incremental Term Loans, in each case maintained as Eurodollar Loans), interest in respect of the
unpaid principal amount of each Eurodollar Loan made to it from the date of the Borrowing thereof
until the earlier of (i) the maturity (whether by acceleration or otherwise) of such Eurodollar
Loan and (ii) the conversion of such Eurodollar Loan to a Base Rate Loan pursuant to Section 1.06,
1.09 or 1.10, as applicable, at a rate per annum which shall, during each Interest Period
applicable thereto, be equal to the sum of the Eurodollar Rate for such Interest Period
plus the relevant Applicable Margin as in effect from time to time.




          (c) Overdue principal and, to the extent permitted by law, overdue interest in respect of each
Loan and any other overdue amount payable hereunder shall, in each case, bear interest at a rate
per annum equal to the greater of (x) 2% per annum in excess of the rate otherwise applicable to
Base Rate Loans maintained pursuant to the respective Tranche (or, if the overdue amount owing does
not relate to any specific Tranche, the rate otherwise applicable to Tranche B-1 Term Loans which
are maintained as Base Rate Loans) from time to time and (y) the rate which is 2% in excess of the
rate then borne by such Loans, in each case with such interest to be payable on demand.




          (d) Accrued (and theretofore unpaid) interest shall be payable (i) in respect of each Base
Rate Loan, quarterly in arrears on each Quarterly Payment Date, (ii) in respect of each Eurodollar
Loan, 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 (iii) in respect of each Loan, on any repayment or prepayment (on
the amount repaid or prepaid), at maturity (whether by acceleration or otherwise) and, after such
maturity, on demand.




          (e) Upon each Interest Determination Date, the Administrative Agent shall determine the
Eurodollar Rate for the respective Interest Period or Interest Periods and shall promptly notify






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the applicable Borrower and the applicable Lenders thereof. Each such determination shall,
absent manifest error, be final and conclusive and binding on all parties hereto.




          1.09 Interest Periods. At the time a Borrower gives any Notice of Borrowing or Notice
of Conversion/Continuation in respect of the making of, or conversion into, any Eurodollar Loan (in
the case of the initial Interest Period applicable thereto) or on the third Business Day prior to
the expiration of an Interest Period applicable to such Eurodollar Loan (in the case of any
subsequent Interest Period), the respective Borrower shall have the right to elect, by having an
Authorized Officer of such Borrower give the Administrative Agent notice thereof, the interest
period applicable to such Eurodollar Loan, which Interest Period shall, at the option of such
Borrower (but otherwise subject to the (x) proviso appearing in Section 1.01(a), (y) the proviso
appearing in Section 1.01(b) and (z) clause (iii) of the proviso appearing in Section 1.06), be, in
the case of a Eurodollar Loan, a one-, two-, three- or six-month period or, to the extent agreed to
by all Lenders required to make Loans under the respective Tranche, a nine- or twelve-month period
(or, if required by the proviso appearing in either Section 1.01(a) or Section 1.01(b), a one-week
period); provided that:





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




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




     (iii) if any Interest Period relating to a Eurodollar 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;




     (iv) if any Interest Period for a Eurodollar 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 Eurodollar 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) no Interest Period in respect of any Borrowing under a given Tranche of Loans shall
be selected which extends beyond the respective Maturity Date for such Tranche of Loans;




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




     (vii) no Interest Period in respect of any Borrowing of any Tranche of Term Loans shall
be elected which extends beyond any date upon which a Scheduled Repayment for the respective
Tranche of Term Loans will be required to be made under Section 4.02(b) if, after giving
effect to the election of such Interest Period, the aggregate principal amount of such
Tranche of Term Loans which have Interest Periods which will expire after such date will be
in excess of the aggregate principal amount of such Tranche of Term Loans then outstanding
less the aggregate amount of such required Scheduled Repayment.


If upon the expiration of any Interest Period applicable to a Borrowing of Eurodollar Loans, the
U.S. Borrower or the Bermuda Borrower, as applicable, has failed to elect, or is not permitted to
elect, a new In-






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terest Period to be applicable to such Eurodollar Loans as provided above, the relevant Borrower
shall be deemed to have elected to convert such Eurodollar Loans into Base Rate Loans, in any such
case effective as of the expiration date of such current Interest Period.




          1.10 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
Amendment No. 3 Effective Date 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 the Eurodollar 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 Eurodollar Loan because of (x)
any change since the Amendment No. 3 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 payments to a Lender of the principal of
or interest on the Loans 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 Amendment No. 3 Effective
Date affecting such Lender, the interbank market or the position of such Lender in such
market (whether or not such Lender was a Lender at the time of such occurrence); or




     (iii) at any time after the Amendment No. 3 Effective Date, that the making or
continuance of any Eurodollar 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 Amendment No. 3 Effective Date which materially
and adversely affects the applicable interbank market;


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 applicable 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 (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until
such time as the Administrative Agent notifies any affected 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 either Borrower with respect to
Eurodollar Loans which have not yet been incurred (including by way of conversion) shall be deemed
rescinded by such Borrower, (y) in the case of clause (ii) above, the respective Borrower or
Borrowers, as the case may be, 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






-7-









 







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 respective Borrower or Borrowers 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 respective Borrower’s or Borrowers’
obligations to pay additional amounts pursuant to this Section 1.10(a) upon the subsequent
submission of such notice) and (z) in the case of clause (iii) above, the respective Borrower or
Borrowers shall take one of the actions specified in Section 1.10(b) as promptly as possible and,
in any event, within the time period required by law. Each of the Administrative Agent and each
Lender agrees that if it gives notice to either Borrower of any of the events described in clause
(i), (ii) or (iii) above, it shall promptly notify such Borrower and, in the case of any such
Lender, the Administrative Agent, if such event ceases to exist.




          (b) At any time that any Eurodollar Loan is affected by the circumstances described in Section
1.10(a)(ii) or (iii), the applicable Borrower may (and, in the case of a Eurodollar Loan affected
by the circumstances described in Section 1.10(a)(iii), shall) either (x) if the affected
Eurodollar Loan is then being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same
date that such Borrower was notified by the affected Lender or the Administrative Agent pursuant to
Section 1.10(a)(ii) or (iii), as the case may be, or (y) if the affected Eurodollar Loan is then
outstanding, upon at least three Business Days’ written notice to the Administrative Agent, 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 1.10(a)(iii), shall occur on the last day of the
Interest Period then applicable to such Eurodollar Loan or such earlier day as shall be required by
applicable law).




          (c) If any Lender shall have determined after the Amendment No. 3 Effective Date that the
adoption or effectiveness after the Amendment No. 3 Effective Date of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change after the Amendment No.
3 Effective Date in the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or administration thereof, or
compliance by such Lender or any Person controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of return on such
Lender’s or such other controlling Person’s capital or assets as a consequence of such Lender’s
Commitment or Commitments hereunder or its obligations hereunder to a level below that which such
Lender or such other controlling Person could have achieved but for such adoption, effectiveness,
change or compliance (taking into consideration such Lender’s or such other controlling Person’s
policies with respect to capital adequacy), then from time to time, upon written demand by such
Lender (with a copy to the Administrative Agent), accompanied by the notice referred to in the next
succeeding sentence of this Section 1.10(c), the Borrowers jointly and severally agree to pay to
such Lender such additional amount or amounts as will compensate such Lender or such other
controlling Person for such reduction in the rate of return to such Lender or such other
controlling Person. Each Lender, upon determining in good faith that any additional amounts will
be payable pursuant to this Section 1.10(c), will give prompt written notice thereof to the
relevant Borrower (a copy of which shall be sent by such Lender to the Administrative Agent), which
notice shall set forth such Lender’s basis for asserting its rights under this Section 1.10(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 either Borrower’s obligations to pay
additional amounts pursuant to this Section 1.10(c) upon the subsequent receipt of such notice. A
Lender’s good faith determination of compensation owing under this Section 1.10(c) shall, absent
manifest error, be final and conclusive and binding on all the parties hereto.







-8-









 








          (d) 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 Letter of Credit, any
Non-Dollar Denominated Bank Guaranties or any category of liabilities which includes deposits by
reference to which the interest rate on any Non-Dollar Denominated Letter of Credit or any
Non-Dollar Denominated Bank Guaranty is determined or any category of extensions of credit or other
assets which includes loans by a non United States office of any Lender to non United States
residents, then, unless such reserves are included in the calculation of the interest rate
applicable to such Non-Dollar Denominated Letter of Credit or such Non-Dollar Denominated Bank
Guaranty or in Section 1.10(a)(ii), such Lender shall promptly notify the Borrowers 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 Borrowers, jointly and severally agree to pay to such Lender such specified
amounts as additional fees at the time that either Borrower is otherwise required to pay regularly
accruing fees in respect of such Non-Dollar Denominated Letter of Credit or such Non-Dollar
Denominated Bank Guaranty or, if later, on written demand therefor by such Lender.




          1.11 Compensation.




          (a) Each 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 any loss of anticipated profit) which such Lender may
sustain: (i) if for any reason (other than a default by such Lender or any Agent) a Borrowing of,
or conversion from or into, Eurodollar Loans of such Borrower does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn by
the respective Borrower or Borrowers or deemed withdrawn pursuant to Section 1.10(a)); (ii) if any
repayment (including any repayment made pursuant to Section 4.01 or 4.02 or as a result of an
acceleration of the Loans pursuant to Section 10 or as a result of the replacement of a Lender
pursuant to Section 1.13 or 13.12(b)), conversion or permitted “realignment” of any of its
Eurodollar Loans to such Borrower occurs on a date which is not the last day of an Interest Period
applicable thereto; (iii) if any prepayment of any of the Eurodollar Loans to such Borrower is not
made on any date specified in a notice of prepayment given by the respective Borrower or Borrowers;
or (iv) as a consequence of (x) any other default by such Borrower to repay its Loans when required
by the terms of this Agreement or any Note held by such Lender or (y) any election made pursuant to
Section 1.10(b) relating to Loans to such Borrower. Each Lender’s calculation of the amount of
compensation owing pursuant to this Section 1.11 shall be made in good faith. A Lender’s basis for
requesting compensation pursuant to this Section 1.11 and a Lender’s calculation of the amount
thereof, shall, absent manifest error, be final and conclusive and binding on all parties hereto.




          (b) The Borrowers jointly and severally agree to compensate the Deposit Bank and each CL
Lender, upon the Deposit Bank’s or applicable CL Lender’s written request (which request shall set
forth in reasonable detail the basis for requesting such compensation), for all losses, expenses
and liabilities incurred by the Deposit Bank or such CL Lender in connection with: (i) any
withdrawals from the Credit-Linked Deposit Account pursuant to the terms of this Agreement prior to
the end of the applicable Interest Period or Scheduled Investment Termination Date for the
Credit-Linked Deposits; and (ii) the termination of the Total Credit-Linked Commitment (and the
related termination of the investment






-9-









 







of the funds held in the Credit-Linked Deposit Account) prior to the end of any applicable
Interest Period or Scheduled Investment Termination Date for the Credit Linked Deposits;
provided, however, that neither of the Borrowers shall have any obligation to
compensate the Deposit Bank or any CL Lender pursuant to this Section 1.11(b) for any losses,
expenses and liabilities in connection with periods after such Interest Period or Scheduled
Investment Termination Date, as the case may be.




          1.12 Change of Lending Office.




          (a) Each Lender may at any time or from time to time designate, by written notice to the
Administrative Agent to the extent not already reflected on Schedule II, one or more lending
offices (which, for this purpose, may include Affiliates of the respective Lender) for the various
Loans made, and Letters of Credit and Bank Guaranties participated in, by such Lender (including,
without limitation, by designating a separate lending office (or Affiliate) to act as such with
respect to Dollar-Denominated Letter of Credit Outstandings and Dollar-Denominated Bank Guaranty
Outstandings versus Non-Dollar Denominated Letter of Credit Outstandings and Non-Dollar Denominated
Bank Guaranty Outstandings) by such Lender; provided that, for designations made after the
Amendment No. 3 Effective Date (unless such designation is made after the occurrence of a Sharing
Event as a result of any Lender’s purchase of participating interests in Loans, Letters of Credit,
Unpaid Drawings, Unreimbursed Payments and Credit-Linked Deposits pursuant to Section 1.14), to the
extent such designation shall result in increased costs under Section 1.10, 2A.06, 2B.06 or 4.04 in
excess of those which would be charged in the absence of the designation of a different lending
office (including a different Affiliate of the respective Lender), then no Borrower shall be
obligated to pay such excess increased costs (although if such designation results in increased
costs, each Borrower shall be obligated to pay the costs which would have applied in the absence of
such designation and any subsequent increased costs of the type described above resulting from
changes after the date of the respective designation). Except as provided in the immediately
preceding sentence, such lending office and Affiliate of any Lender designated as provided above
shall, for all purposes of this Agreement, be treated in the same manner as the respective Lender
(and shall be entitled to all indemnities and similar provisions in respect of its acting as such
hereunder).




          (b) Each Lender agrees that upon the occurrence of any event giving rise to the operation of
Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2A.06, Section 2B.06 or Section 4.04 with
respect to such Lender, it will, if requested by the applicable Borrower by notice to such Lender,
use reasonable efforts (subject to overall policy considerations of such Lender) to designate
another lending office for any Loans, Letters of Credit and/or Bank Guaranties, as the case may be,
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 any of the aforementioned
Sections. Nothing in this Section 1.12 shall affect or postpone any of the obligations of either
Borrower or the rights of any Lender provided in Sections 1.10, 2A.06, 2B.06 and 4.04.




          1.13 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 1.10(a)(ii) or (iii), Section
1.10(c) or (d), Section 2A.06, Section 2B.06 or Section 4.04 with respect to any Lender which
results in such Lender charging to either Borrower increased costs materially in excess of the
average costs being charged by the other Lenders in respect of such contingency 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 provided in Section
13.12(b), the U.S. Borrower or the Bermuda Borrower, as the case may be, shall have the right, in
accordance with the requirements of 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 Eligible Transferees (collectively, the “Re-






-10-









 







placement Lender”), none of whom shall constitute a Defaulting Lender at the time of
such replacement and each of whom shall be reasonably acceptable to the Administrative Agent or, in
the case of a replacement as provided in Section 13.12(b) where the consent of the respective
Lender is required with respect to less than all Tranches of its Loans or Commitments, at the
option of the applicable Borrower, to replace only the Commitments and/or outstanding Loans of such
Lender in respect of each Tranche where the consent of such Lender would otherwise be individually
required, with identical Commitments and/or Loans of the respective Tranche provided by the
Replacement Lender; provided that:





     (i) at the time of any replacement pursuant to this Section 1.13, 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) pursuant to which the Replacement Lender shall acquire all of the
Commitments and all then outstanding Loans (or, in the case of the replacement of less than
all the Tranches of Commitments and outstanding Loans of the respective Replaced Lender, all
the Commitments and/or all then outstanding Loans relating to the Tranche or Tranches with
respect to which such Lender is being replaced) of, and all participations in all then
outstanding Letters of Credit and Bank Guaranties issued pursuant to the respective Tranche
or Tranches where the respective Lender is being replaced by, the Replaced Lender and, in
connection therewith, shall pay to the Replaced Lender in respect thereof an amount equal to
the sum (in the relevant currency or currencies) of (A) an amount equal to the principal of,
and all accrued interest on, all then outstanding Loans of the respective Replaced Lender
under each Tranche with respect to which such Replaced Lender is being replaced, (B) an
amount equal to the then remaining Credit-Linked Deposit of such Lenders (if any) at such
time, (C) an amount equal to all Unpaid Drawings (if any) under each Tranche with respect to
which the respective Replaced Lender is being replaced, in each case that have been funded
by (and not reimbursed to) such Replaced Lender (including by way of application of such
Lender’s Credit-Linked Deposit) at such time, together with all then unpaid interest with
respect thereto at such time, (D) an amount equal to all Unreimbursed Payments (if any)
under each Tranche with respect to which the respective Replaced Lender is being replaced,
in each case that have been funded by (and not reimbursed to) such Replaced Lender
(including by way of application of such Lender’s Credit-Linked Deposit) at such time,
together with all then unpaid interest with respect thereto at such time, and (E) an amount
equal to all accrued, but theretofore unpaid, Fees owing to the Replaced Lender (but only
with respect to the relevant Tranche or Tranches, in the case of the replacement of less
than all Tranches then held by the respective Replaced Lender) pursuant to Section 3.01;
provided that the failure of any Replaced Lender to execute an Assignment and
Assumption shall not affect the validity of any assignment pursuant to this Section 1.13;
and




     (ii) all obligations of the Borrowers due and owing to the Replaced Lender in respect
of each Tranche where such Replaced Lender is being replaced (other than those specifically
described in clause (i) above in respect of which the assignment purchase price has been, or
is concurrently being, paid) shall be paid in full to such Replaced Lender concurrently with
such replacement.


Upon the execution of the respective Assignment and Assumption Agreement (or, otherwise, upon
notice by the Administrative Agent to the Replaced Lender), the payment of amounts referred to in
clauses (i) and (ii) above, recordation of the assignment on the Register by the Administrative
Agent pursuant to Section 13.17 and, if so requested by the Replacement Lender (when applicable)
pursuant to Section 1.05(a), delivery to the Replacement Lender of the appropriate Note or Notes
executed by the applicable Borrower, (x) the Replacement Lender shall become a Lender hereunder
and, unless the respective Replaced Lender continues to have outstanding Loans or any Commitment
hereunder, the Replaced Lender






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shall cease to constitute a Lender hereunder, except with respect to indemnification provisions
under this Agreement (including, without limitation, Sections 1.10, 1.11, 2A.06, 2B.06, 4.04, 13.01
and 13.06), which shall survive as to such Replaced Lender, and (y) in the case of the replacement
of any Credit Linked Commitment pursuant to this Section 1.13, the CL Percentages of the CL Lenders
shall be automatically adjusted at such time to give effect to such replacement. The Credit-Linked
Deposit funded by any CL Lender shall not be released in connection with any assignment of its
Credit-Linked Commitment, but shall instead be purchased by the relevant assignee (at par, as
described in clause (i)(B) of the proviso above) and continue to be held by the Deposit Bank for
application (if not already applied) pursuant to Sections 2A.04 and 2B.04 in respect of such
assignee’s obligations under the Credit-Linked Commitment assigned to it.




          1.14 Special Provisions Applicable to Lenders upon the Occurrence of a Sharing Event.




          (a) On the date of the occurrence of any Sharing Event, or promptly thereafter, (i) if there
have been any Drawings pursuant to Letters of Credit which have not yet been reimbursed to the
respective Issuing Lender pursuant to Section 2A, the respective Issuing Lender shall seek
reimbursement therefor as permitted pursuant to Section 2A.04(c) and (ii) if there have been any
Bank Guaranty Payments pursuant to Bank Guaranties which have not yet been reimbursed to the
respective Bank Guaranty Issuer pursuant to Section 2B, the respective Bank Guaranty Issuer shall
seek reimbursement therefor as permitted pursuant to Section 2B.04(c). After giving effect to the
actions taken (or required to be taken) pursuant to the preceding sentence, the Administrative
Agent, shall request that the Deposit Bank return (in which case the Deposit Bank shall return) to
the Administrative Agent who shall, in turn, return to the CL Lenders, amounts (if any)
representing Credit-Linked Deposits which are permitted to be returned to the CL Lenders at such
time in accordance with Section 2C.04(a) hereof.




          (b) (i) Upon the occurrence of a Sharing Event, but after giving effect to the actions
required to be taken pursuant to preceding clause (a) of this Section 1.14 (although any failure by
the Administrative Agent, the Deposit Bank or any Lender to take the actions required of it
pursuant to said clause shall not prevent the actions required hereby, but the respective
Administrative Agent, Deposit Bank or Lender shall continue to be obligated to perform its
obligations as required above and the Administrative Agent shall be authorized to make any
equitable adjustments as may be deemed necessary or desirable pursuant to the provisions of this
Section 1.14(b)), the Lenders shall purchase participations from other Lenders in each of the
respective Tranches of Loans and the CL Tranche (including, in the case of the CL Tranche,
participations in each outstanding Letter of Credit, each Unpaid Drawing owing to the CL Lenders,
each outstanding Bank Guaranty, each Unreimbursed Payment owing to the CL Lenders and the
Credit-Linked Deposits of the various CL Lenders) so that, after giving effect to such purchases,
each Lender shall have the same credit exposure in each Tranche at such time (including (x) in the
case of the Total Credit-Linked Commitment, an interest in each outstanding Letter of Credit, each
Unpaid Drawing owing to the CL Lenders, each outstanding Bank Guaranty, each Unreimbursed Payment
owing to the CL Lenders and the Credit-Linked Deposits of the various CL Lenders and (y) a
participation in the Credit Linked Deposits established pursuant to Section 2C.01 and all amounts
deposited in the Credit-Linked Deposit Account from time to time or to be returned to the Lenders
in accordance with the provisions of Section 2), whether or not such Lender shall previously have
participated therein, equal to such Lender’s Exchange Percentage thereof.




          (ii) The foregoing actions pursuant to immediately preceding clause (i) shall be accomplished
pursuant to this Section 1.14(b) through purchases and sales of participations in the various
Tranches as required hereby, and at the request of the Administrative Agent each Lender hereby
agrees to enter into customary participation agreements approved by the Administrative Agent to
evidence the




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same. All purchases and sales of participations pursuant to this Section 1.14(b) shall be
made in Dollars. Without limiting the foregoing, it is understood and agreed that, pursuant to
this Section 1.14(b), the various CL Lenders may be selling participations to the other Lenders in
their Credit-Linked Deposits (after giving effect to the actions required on, or promptly
following, the occurrence of the Sharing Event pursuant to Section 1.14(a)), and in connection
therewith each CL Lender shall be paid, in immediately available funds in Dollars, amounts equal to
the percentage participations sold by it in its Credit-Linked Deposits, which immediately available
funds shall be paid by the Lenders acquiring participations therein). At the request of the
Administrative Agent, each Lender which has sold participations in any of its Tranches as provided
above (through the Administrative Agent) will deliver to each Lender (through the Administrative
Agent) which has so purchased a participation therein a participation certificate in the
appropriate amount as determined in conjunction with the Administrative Agent. It is understood
that the amount of immediately available funds delivered by each Lender shall be calculated on a
net basis, giving effect to both the sales and purchases of participations by the various Lenders
as required above.




          (c) In the event that any Lender shall default on its obligation to pay over any amount to the
Administrative Agent in respect of any Letter of Credit or any Bank Guaranty as provided in Section
1.14(b), each other Lender shall have a claim against such defaulting Lender (and not against the
Administrative Agent, any Issuing Lender, any Bank Guaranty Issuer, the Deposit Bank or any other
Lender) for any damages sustained by it as a result of such default.




          (d) All determinations by the Administrative Agent pursuant to this Section 1.14 shall be made
by it in accordance with the provisions herein and with the intent being to equitably share the
credit risk for all Tranches (and the Credit-Linked Deposits) hereunder in accordance with the
provisions hereof. Absent manifest error, all determinations by the Administrative Agent hereunder
shall be binding on the Borrowers, each of the Lenders, each Issuing Lender, each Bank Guaranty
Issuer and the Deposit Bank. The Administrative Agent shall have no liability to either Borrower
or any Lender, any Issuing Bank, any Bank Guaranty Issuer or the Deposit Bank for any
determinations made by it hereunder except to the extent resulting from the Administrative Agent’s
gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a
final and non-appealable decision).




          (e) Upon, and after, the occurrence of a Sharing Event (i) no further Credit Events shall be
made or occur, and (ii) all Credit-Linked Commitments and all Incremental Term Loan Commitments (if
any) shall be automatically terminated. Notwithstanding anything to the contrary contained above,
the failure of any Lender to purchase its participating interests as required above in any
extensions of credit (and/or any Credit-Linked Deposits) upon the occurrence of a Sharing Event
shall not relieve any other Lender of its obligation hereunder to purchase its participating
interests in a timely manner, but no Lender shall be responsible for the failure of any other
Lender to purchase the participating interest to be purchased by such other Lender on any date.




          (f) If any amount required to be paid by any Lender pursuant to this Section 1.14 is not paid
to the Administrative Agent on the date upon which the Sharing Event occurred, such Lender shall,
in addition to such aforementioned amount, also pay to the Administrative Agent on demand an amount
equal to the product of (i) the amount so required to be paid by such Lender for the purchase of
its participations, (ii) the daily average Federal Funds Rate, during the period from and including
the date of request for payment to the date on which such payment is immediately available to the
Administrative Agent and (iii) a fraction the numerator of which is the number of days that elapsed
during such period and the denominator of which is 360. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts payable under this Section 1.14 shall be
conclusive in the absence of manifest error. Amounts payable by any Lender pursuant to this
Section 1.14 shall be paid to the Administrative Agent for the account of the relevant Lenders,
provided that, if the Administrative Agent (in its sole






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discretion) has elected to fund on behalf of such other Lender the amounts owing to such other
Lenders, then the amounts shall be paid to the Administrative Agent for its own account.




          (g) Whenever, at any time after the relevant Lenders have received from any other Lenders
purchases of participations pursuant to this Section 1.14, the various Lenders receive any payment
on account thereof, such Lenders will distribute to the Administrative Agent, for the account of
the various Lenders participating therein, such Lenders’ participating interests in such amounts
(appropriately adjusted, in the case of interest payments, to reflect the period of time during
which such participations were outstanding) in like funds as received, provided,
however, that in the event that such payment received by any Lenders is required to be
returned, the Lenders who received previous distributions in respect of their participating
interests therein will return to the respective Lenders any portion thereof previously so
distributed to them in like funds as such payment is required to be returned by the respective
Lenders.




          (h) Each Lender’s obligation to purchase participating interests pursuant to this Section 1.14
shall be absolute and unconditional and shall not be affected by any circumstance including,
without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such
Lender may have against any other Lender, either Borrower or any other Person for any reason
whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) any
adverse change in the condition (financial or otherwise) or prospects of either Borrower or any
other Person, (iv) any breach of this Agreement or any other Credit Document by either Borrower,
any Lender, any Issuing Lender, any Bank Guaranty Issuer, any Agent, the Deposit Bank or any other
Person, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.




          (i) Notwithstanding anything to the contrary contained elsewhere in this Agreement, upon any
purchase of participations as required above, (i) the relevant Borrower shall pay to each Lender
granting any participations as required above, for the account of the respective Lender which has
purchased such participations, any increased costs and indemnities (including, without limitation,
pursuant to Sections 1.11, 1.12, 2A.06, 2B.06 and 4.04) to the same extent as if such Lender which
has purchased such participations were the direct Lender as opposed to a participant therein, which
increased costs shall be calculated without regard to Section 1.13, Section 13.04(a) or the
penultimate sentence of Section 13.04(b) and (ii) each Lender which has sold such participations
shall be entitled to receive from the relevant Borrower indemnification from and against any and
all taxes imposed as a result of the sale of the participations pursuant to this Section 1.14.
Each Borrower acknowledges and agrees that, upon the occurrence of a Sharing Event and after giving
effect to the requirements of this Section 1.14, increased Taxes may be owing by it pursuant to
Section 4.04, which Taxes shall be paid (to the extent provided in Section 4.04) by the respective
Borrower or Borrowers, without any claim that the increased Taxes are not payable because same
resulted from the participations effected as otherwise required by this Section 1.14.




          1.15 Incremental Term Loan Commitments.




          (a) Each Borrower shall have the right, in consultation and coordination with the
Administrative Agent but without requiring the consent of any of the Lenders, to request, at any
time and from time to time on or after the CL Maturity Date and prior to the then latest Maturity
Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and
which will become Lenders) provide Incremental Term Loan Commitments to such Borrower and, subject
to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan
Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed,
however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a
result of any






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such request, (ii) each Tranche of Incremental Term Loan Commitments shall be made available
to a single Incremental Term Loan Borrower and shall be denominated in Dollars, (iii) the amount of
each Tranche of Incremental Term Loan Commitments shall be in a minimum aggregate amount of
$25,000,000, (iv) the aggregate amount of all Incremental Term Loan Commitments provided pursuant
to this Section 1.15 shall not exceed the Maximum Incremental Term Loan Commitment Amount, (v) the
up-front fees and, if applicable, any unutilized commitment fees and/or other fees payable in
respect of each Incremental Term Loan Commitment shall be separately agreed to by the respective
Incremental Term Loan Borrower and each Incremental Term Loan Lender (and with all such fees to be
disclosed in writing by the respective Incremental Term Loan Borrower to the Administrative Agent),
(vi) each Tranche of Incremental Term Loans shall have (I) (x) an Incremental Term Loan Maturity
Date of no earlier than the then latest Maturity Date as then in effect, and (y) a Weighted Average
Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the
Tranche of then outstanding Loans with the longest Weighted Average Life to Maturity and (II) an
“interest rate” or “interest rates” applicable to such Tranche of Incremental Term Loans (which,
for such purposes only, shall be determined by the Administrative Agent and deemed to include all
upfront or similar fees or original issue discount (amortized over the life of such Incremental
Term Loans) payable to all Lenders providing such Incremental Term Loans, but exclusive of any
arrangement, structuring or other fees payable in connection therewith that are not shared with all
Lenders providing such Tranche of Incremental Term Loans) that may (at such time or from time to
time thereafter) exceed the “interest rates” applicable to the Term Loans; provided that,
in the event that the “interest rate” excess applicable to such Tranche of Incremental Term Loans
shall at such time be greater than 0.50%, the Applicable Margin for the Tranche B-1 Term Loans, the
Tranche C-1 Term Loans and each other then existing Tranche of Incremental Term Loans shall be
increased by such amounts, and for such time periods, as are needed so that at no time shall the
“interest rate” for the respective new Tranche of Incremental Term Loans (calculated as described
above) exceed the relevant interest rates applicable to the then existing Tranches of Term Loans by
more than 0.50%, (vii) the proceeds of all Incremental Term Loans shall be used only for the
purposes permitted by Section 7.05(a), (viii) each Incremental Term Loan Commitment Agreement shall
specifically designate, with the approval of the Administrative Agent, the Tranche of the
Incremental Term Loan Commitments being provided thereunder (which Tranche may be a new Tranche
(i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term
Loan Commitments or other Term Loans) or an increase in a previously established Tranche), (ix) all
Incremental Term Loans (and all interest, fees and other amounts payable thereon) shall be
Obligations under this Agreement and the other applicable Credit Documents and shall be secured by
the relevant Security Documents, and guaranteed under each relevant Guaranty, on a pari
passu basis with all other Loans of the applicable Borrower secured by each such Security
Agreement and guaranteed under each such Guaranty, and (x) each Lender (including any Eligible
Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment
pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the
relevant conditions set forth in this Agreement, make Incremental Term Loans under the
 Tranche
specified in such Incremental Term Loan Commitment Agreement as provided in Section 1.01(c) and
such Loans shall thereafter be deemed to be Incremental Term Loans under such Tranche for all
purposes of this Agreement and the other applicable Credit Documents.




          (b) At the time of the provision of Incremental Term Loan Commitments pursuant to this Section
1.15, the applicable Incremental Term Loan Borrower, the Administrative Agent and each such Lender
or other Eligible Transferee which agrees to provide an Incremental Term Loan Commitment (each, an
"Incremental Term Loan Lender”) shall execute and deliver to the Administrative Agent an
Incremental Term Loan Commitment Agreement substantially in the form of Exhibit I
(appropriately completed), with the effectiveness of the Incremental Term Loan Commitment provided
therein to occur on the date set forth in such Incremental Term Loan Commitment Agreement, which
date in any event shall be no earlier than the date on which all Incremental Term Loan Commitment
Requirements are satisfied.






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The Administrative Agent shall promptly notify each Lender as to the effectiveness of each
Incremental Term Loan Commitment Agreement.




          Section 2. Letters of Credit; Bank Guaranties; Etc.




          Section 2A. Letters of Credit.




          2A.01 Letters of Credit.




          (a) Subject to and upon the terms and conditions herein set forth, a Borrower may request an
Issuing Lender, at any time and from time to time on and after the Restatement Effective Date and
prior to the fifth Business Day (or the 30th day in the case of Trade Letters of Credit) preceding
the CL Maturity Date, to issue (x) for the account of the U.S. Borrower (in the case of requests
made by it) or the account of the Bermuda Borrower (in the case of requests made by it) and for the
benefit of any holder (or any trustee, agent or other similar representative for any such holders)
of L/C Supportable Indebtedness of the respective Account Party or any of its or their Wholly-Owned
Subsidiaries, irrevocable standby letters 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 standby letter
of credit, a “Standby Letter of Credit”) in support of such L/C Supportable Indebtedness
and (y) for the account of the respective Account Party and for the benefit of sellers of goods to
the respective Account Party or any of its or their Subsidiaries in the ordinary course of
business, irrevocable sight trade letters 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 trade letter of
credit, a “Trade Letter of Credit,” and each such Standby Letter of Credit and Trade Letter
of Credit, a “Letter of Credit” and, collectively, the “Letters of Credit”). All
Letters of Credit shall be issued on a sight basis only and shall be denominated in Dollars or,
subject to the provisions of Section 2C.03, an Alternative Currency. Each Letter of Credit shall
be deemed to constitute a utilization of the Credit-Linked Commitments and shall, subject to the
provisions of Section 1.14 if a Sharing Event occurs, be participated in (as more fully described
in following Section 2A.04(a)) by the CL Lenders in accordance with their respective CL Percentages
(subject to the provisions of Section 2C to the extent applicable). All Letters of Credit shall be
denominated in Dollars or an Alternative Currency. The Bermuda Borrower shall have no liability
with respect to any U.S. Borrower Letter of Credit which may be issued to the U.S. Borrower.




          (b) Subject to and upon the terms and conditions set forth herein, each Issuing Lender hereby
agrees (subject to Section 2C.03, to the extent applicable in the case of Non-Dollar Denominated
Letters of Credit) that it will, at any time and from time to time on and after the Restatement
Effective Date and prior to (i) the fifth Business Day in the case of Standby Letters of Credit, or
(ii) the 30th day, in the case of Trade Letters of Credit, preceding the CL Maturity Date,
following its receipt of the respective Letter of Credit Request, issue for the account of the
respective Account Party one or more Letters of Credit, (x) in the case of Trade Letters of Credit,
in support of trade obligations of the respective Account Party or any of its or their Subsidiaries
that arise in the ordinary course of business or (y) in the case of Standby Letters of Credit, in
support of such L/C Supportable Indebtedness as is permitted to remain outstanding without giving
rise to a Default or Event of Default hereunder; provided that the respective Issuing
Lender shall be under no obligation to issue any Letter of Credit 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



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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) not in effect on
the Restatement Effective Date, or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Issuing Lender as of the Restatement Effective Date
and which such Issuing Lender in good faith deems material to it; or




     (ii) such Issuing Lender, prior to the issuance of such Letter of Credit, shall have
received written notice from either Borrower or the Required Lenders of the type described
in clause (iv) of Section 2A.01(c) or the last sentence of Section 2A.03(b).



          (c) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued at any time when
the Aggregate CL Exposure exceeds (or would after giving effect to such issuance exceed) either (x)
the Total Credit-Linked Commitment at such time or (y) the aggregate amount of the Credit-Linked
Deposits in the Credit-Linked Deposit Account at such time, (ii) (x) each Standby Letter of Credit
shall by its terms terminate on or before the date which occurs 12 months after the date of the
issuance thereof (although any such Standby Letter of Credit may be extendable for successive
periods of up to 12 months, but not beyond the fifth Business Day preceding the CL Maturity Date,
on terms acceptable to the Issuing Lender thereof), 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 CL Maturity Date and (y) each
Trade Letter of Credit shall by its terms terminate on or before the date occurring not later than
180 days after such Trade Letter of Credit’s date of issuance, (iii) (x) no Standby Letter of
Credit shall have an expiry date occurring later than the fifth Business Day preceding the CL
Maturity Date and (y) no Trade Letter of Credit shall have an expiry date occurring later than 30
days prior to the CL Maturity Date and (iv) no Issuing Lender will issue any Letter of Credit after
it has received written notice from either Borrower or the Required Lenders stating that a Default
or an Event of Default exists until such time as such Issuing Lender shall have received a written
notice of (x) rescission of such notice from the party or parties originally delivering the same or
(y) a waiver of such Default or Event of Default by the Required Lenders.




          (d) Part A of Schedule XI hereto contains a description of certain letters of credit issued
(or deemed issued) pursuant to the Original Credit Agreement and outstanding on the Restatement
Effective 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” and a “Bermuda Borrower
Letter of Credit” or a “U.S. Borrower Letter of Credit” (as set forth on Part A of Schedule XI) for
all purposes of this Agreement and issued, for purposes of Section 2A.04(a), on the Restatement
Effective 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.




          2A.02 Minimum Stated Amount. 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 Let-




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ter of Credit, £150,000, or in each
case such lesser amount as is reasonably acceptable to the respective Issuing Lender.




          2A.03 Letter of Credit Requests.




          (a) Whenever an Account Party desires that a Letter of Credit be issued for its account, such
Account Party shall give the Administrative Agent (at the appropriate Notice Office) and the
respective Issuing Lender at least 3 Business Days’ (or such shorter period as is acceptable to
such Issuing Lender in any given case) written notice prior to the proposed date of issuance (which
shall be a Business Day). Each notice shall be in the form of Exhibit C-1 (each, a
"Letter of Credit Request”), including, without limitation, by specifying: (i) whether the
requested Letter of Credit shall constitute a U.S. Borrower Letter of Credit or a Bermuda Borrower
Letter of Credit; and (ii) the currency in which the requested Letter of Credit is to be
denominated (which shall be Dollars or, to the extent permitted hereunder, an Alternative
Currency). Each Letter of Credit Request shall include any other documents as such Issuing Lender
customarily requires in connection therewith.




          (b) The making of each Letter of Credit Request shall be deemed to be a representation and
warranty by the applicable Account Party that such Letter of Credit may be issued in accordance
with, and will not violate the requirements of, Section 2A.01(c). Unless the respective Issuing
Lender has received notice from the Required Lenders before it issues a Letter of Credit that one
or more of the applicable conditions specified in Section 6, as the case may be, are not then
satisfied, or that the issuance of such Letter of Credit would violate Section 2A.01(c), then such
Issuing Lender may issue the requested Letter of Credit for the account of the respective Account
Party in accordance with such Issuing Lender’s usual and customary practices.




          2A.04 Letter of Credit Participations.




          (a) Immediately upon the issuance by any Issuing Lender of any Letter of Credit, but subject
to Section 2C.03 to the extent applicable in the case of Non-Dollar Denominated Letters of Credit,
such Issuing Lender shall be deemed to have sold and transferred to each CL Lender (each such
Lender with respect to any Letter of Credit, in its capacity under this Section 2A.04, an “L/C
Participant”), and each such L/C 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 (each an “L/C Participation”), in a percentage equal to such L/C
Participant’s CL Percentage in such Letter of Credit, and each Drawing made thereunder and the
obligations of the respective Account Party under this Agreement with respect thereto (although CL
Facility Fees shall be payable directly to the Administrative Agent for the account of the CL
Lenders as provided in Section 3.01(a) and the L/C Participants shall have no right to receive any
portion of any Facing Fees or any administration fees with respect to any such Letters of Credit)
and any security therefor or guaranty pertaining thereto. Upon any change in the Credit-Linked
Commitments and, as a result thereof, the CL Percentages of the CL Lenders pursuant to Section 1.13
or 13.04, 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 2A.04 to reflect the new CL Percentages of the CL Lenders. With respect to each
Letter of Credit from time to time outstanding, all calculations of the percentage participations
therein of the various CL Lenders shall be made from time to time by the Administrative Agent,
which calculations shall be conclusive absent manifest error. Furthermore, upon the occurrence of
a Sharing Event and as more fully set forth in Section 1.14, additional sub-participations may be
required to be granted by the various CL Lenders in their participations in outstanding Letters of
Credit, in each case in accordance with, and subject to the provisions of, Section 1.14.







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          (b) In determining whether to pay under any Letter of Credit, the respective Issuing Lender
shall have no 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 any Issuing Lender under or in connection with any Letter of
Credit issued by it if taken or omitted in the absence of gross negligence or willful misconduct
(as determined by a court of competent jurisdiction in a final and non-appealable decision) shall
not create for such Issuing Lender any resulting liability to any Account Party or any Lender.




          (c) In the event that any Issuing Lender makes any payment or disbursement under any Letter of
Credit issued by it and the respective Account Party shall not have reimbursed such amount in full
to such Issuing Lender pursuant to Section 2A.05(a) by the date required by said Section 2A.05(a)
for such reimbursement, such Issuing Lender shall promptly notify the Administrative Agent, which
shall promptly notify each L/C Participant therein and the Deposit Bank of such failure, and each
CL Lender (including in its capacity as an L/C Participant) hereby irrevocably authorizes the
Deposit Bank (and the Deposit Bank hereby agrees) to reimburse such Issuing Lender for such amount
in Dollars (or, to the extent that the respective Unpaid Drawing is in an Alternative Currency, in
an amount equal to the Dollar Equivalent thereof, as determined by the Administrative Agent on the
date on which such payment or disbursement was made under the respective Letter of Credit) solely
from such CL Lender’s CL Percentage of the Credit-Linked Deposits on deposit with the Deposit Bank
in the Credit-Linked Deposit Account, in which case the Total Credit-Linked Commitment shall be
reduced by the amount so applied (with a corresponding reduction in the Credit-Linked Commitment of
each CL Lender equal to such CL Lender’s CL Percentage of such aggregate amount so applied);
provided that any portion of the Unpaid Drawings with respect to a Non-Dollar Denominated
Letter of Credit, which, because of currency fluctuations, represents amounts in excess of the
Total Credit-Linked Deposits (as more fully described in Section 2C.03), shall not be reimbursed
from Credit-Linked Deposits but shall instead be immediately repaid by the respective Account
Party. Furthermore, if any Specified Default or any Event of Default then exists, the respective
Issuing Lender may, with respect to any payment or disbursement made by it under any Letter of
Credit, request the Deposit Bank, in which case each CL Lender hereby irrevocably authorizes the
Deposit Bank (and the Deposit Bank hereby agrees), to reimburse the Issuing Lender, solely from
such CL Lender’s CL Percentage of the Credit-Linked Deposits on deposit in the Credit-Linked
Deposit Account with the Deposit Bank, for any Drawing under such Letter of Credit as provided in
the immediately preceding sentence (notwithstanding the date of reimbursement of any such Drawings
by the date required by Section 2A.05(a)), in which case the Total Credit-Linked Commitment shall
be reduced by the amount so applied as otherwise provided in the immediately preceding sentence,
and any amounts actually received pursuant to Section 2A.05(a) shall be applied to reimburse L/C
Participants as provided in following Section 2A.04(d).




          (d) Whenever any Issuing Lender receives a payment of a reimbursement obligation as to which
the Administrative Agent has received for the account of such Issuing Lender any payments from the
L/C Participants (or from the Deposit Bank on their behalf) pursuant to Section 2A.04(c) above,
such Issuing Lender shall, after paying itself any amounts owing to it as described in Section
2C.03 in the case of payments received with respect to Non-Dollar Denominated Letters of Credit,
pay (in same day funds in Dollars) to the Administrative Agent (and the Administrative Agent shall
promptly pay (in same day funds in Dollars) to each L/C Participant which has paid its relevant CL
Percentage thereof) an amount equal to such L/C Participant’s share (based on the proportionate
aggregate amount funded by such L/C Participant to the aggregate amount funded by all L/C
Participants) of the principal amount of such reimbursement obligation and interest thereon
accruing after the purchase of the respective participations.







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          (e) Each Issuing Lender shall, promptly after the issuance of, or amendment or modification
to, a Standby Letter of Credit, give the Administrative Agent and the respective Account Party
written notice of such issuance, amendment or modification, as the case may be, and such notice
shall be accompanied by a copy of such Standby Letter of Credit, such amendment or such
modification, as the case may be. Promptly upon receipt of such notice, the Administrative Agent
shall notify each L/C Participant, in writing, of such issuance, amendment or modification and if
any L/C Participant shall so request, the Administrative Agent shall furnish said L/C Participant
with a copy of such Standby Letter of Credit, such amendment or such modification, as the case may
be.




          (f) Each Issuing Lender (other than DBAG) shall deliver to the Administrative Agent and the
Deposit Bank, promptly on the first Business Day of each week, by facsimile transmission, the
aggregate daily Stated Amount available to be drawn under the outstanding Trade Letters of Credit
issued by such Issuing Lender for the previous week.




          (g) The obligations of the L/C Participants to make payments to the Administrative Agent for
the account of the respective Issuing Lender with respect to Letters of Credit issued by it shall
be irrevocable and not subject to counterclaim, setoff or other defense or any other 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 Credit
Documents;




     (ii) the existence of any claim, setoff, defense or other right which any Credit Party
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), any Agent, any Lender, any Issuing Lender, any L/C 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 any Credit Party or any of its Subsidiaries and the beneficiary named in any such
Letter of Credit);




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




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




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


provided that the L/C Participants shall not be obligated to reimburse such Issuing Lender
for any wrongful payment made by such Issuing Lender under a Letter of Credit issued by it as a
result of deliberate 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). Any action taken or omitted to be taken by any Issuing Lender under or
in connection with any Letter of Credit shall not create for such Issuing Lender any resulting
liability to the L/C Participants or any other Person unless such action is taken or omitted to be
taken with gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).







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          2A.05 Agreement to Repay Letter of Credit Drawings.




          (a) The U.S. Borrower hereby agrees (in the case of U.S Borrower Letters of Credit) and the
Bermuda Borrower hereby agrees (in the case of Bermuda Borrower Letters of Credit) to reimburse the
respective Issuing Lender, by making payment in Dollars (or, if the respective Letter of Credit is
denominated in an Alternative Currency, in an amount equal to the Dollar Equivalent of the
respective payment or disbursement, as determined by the Administrative Agent on the date of such
payment or disbursement) to the Administrative Agent in immediately available funds at the Payment
Office (or by making the payment directly to such Issuing Lender at such location as may otherwise
have been agreed upon by the respective Account Party and such Issuing Lender), for any payment or
disbursement (in the case of any such payment or disbursement under any Non-Dollar Denominated
Letter of Credit, taking the Dollar Equivalent, as determined by the Administrative Agent, of the
amount of the respective payment or disbursement on the date upon which the respective payment or
disbursement is made) made by such Issuing Lender under any Letter of Credit issued by it (each
such amount so paid until reimbursed, an “Unpaid Drawing”), not later than the third
Business Day after the Administrative Agent or the Issuing Lender notifies the respective Account
Party 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 10.05 shall have occurred and be
continuing, in which case all such Unpaid Drawings shall be due and payable immediately without
presentment, demand, protest or notice of any kind (all of which are hereby waived by the
respective Account Party)), 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 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 is reimbursed by the respective Account Party therefor at a rate per annum equal to
the Base Rate in effect from time to time plus the Applicable Margin for Tranche B-1 Term Loans
maintained as Base Rate Loans, as in effect from time to time; 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 the receipt by the Account Party of notice to the respective Account Party
by the Administrative Agent or the respective Issuing Lender of such payment or disbursement (or,
if sooner, from the date of occurrence of a Default or an Event of Default under Section 10.05),
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 is 2% in excess of the
rate otherwise applicable to the respective Unpaid Drawing as provided above, with all such
interest payable pursuant to this Section 2A.05 to be payable on demand. The respective Issuing
Lender shall give the respective Account Party 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 respective Account Party’s obligations under this Agreement.
The obligations of the respective Account Party to repay Unpaid Drawings as required above shall
not be reduced, or satisfied, in any respect by payments made to the Issuing Lender with any
amounts on deposit in the Credit-Linked Deposit Account or as otherwise provided in Section
2A.04(c).




          (b) The obligations of the U.S. Borrower (with respect to U.S. Borrower Letters of Credit) and
the obligations of the Bermuda Borrower (with respect to Bermuda Borrower Letters of Credit) under
this Section 2A.05 to reimburse the respective Issuing Lender with respect to Unpaid Drawings
(including, in each case, interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment which the
respective Account Party may have or have had against any Lender (including in its capacity as
Issuing Lender or as L/C Participant), including, without limitation, any defense based upon the
failure of any drawing under a Letter of Credit (each, a “Drawing”) to conform to the terms
of such Letter of Credit or any non-application or misapplication by the beneficiary of the
proceeds of such Drawing, the respective Issuing Lender’s only obligation to the respective Account
Party being to confirm that any documents required to
be delivered under such Letter of Credit appear to have been delivered and that they appear to
substan-





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tially comply on their face with requirements of such Letter of Credit; provided,
however, that no Account Party shall 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
deliberate 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). Any action taken or omitted to be taken by any Issuing Lender under or
in connection with any Letter of Credit shall not create for such Issuing Lender any resulting
liability to any Account Party unless such action is taken or admitted to be taken with gross
negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and
non-appealable decision).




          2A.06 Increased Costs. If after the Restatement Effective Date, the Deposit Bank, any
Issuing Lender or any L/C Participant determines in good faith that the adoption or effectiveness
after the Restatement Effective Date of any applicable law, rule or regulation, order, guideline or
request or any change therein, or any change after the Restatement Effective Date in the
interpretation or administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance by any Issuing
Lender or any L/C Participant with any request or directive (whether or not having the force of
law) by any such authority, central bank or comparable agency shall either (i) impose, modify or
make applicable any reserve, deposit, capital adequacy or similar requirement against Letters of
Credit issued by such Issuing Lender or such L/C Participant’s participation therein, or (ii)
impose on the Deposit Bank, any Issuing Lender or any L/C Participant any other conditions directly
or indirectly affecting this Agreement, the Credit-Linked Deposits, any Letter of Credit or such
L/C Participant’s participation therein; and the result of any of the foregoing is to increase the
cost to the Deposit Bank, such Issuing Lender or such L/C Participant of issuing, maintaining or
participating in the Credit-Linked Deposits or any Letter of Credit, or to reduce the amount of any
sum received or receivable by the Deposit Bank, such Issuing Lender or such L/C Participant
hereunder or under the other Credit Documents or reduce the rate of return on its capital with
respect to Credit-Linked Deposits or Letters of Credit, then, upon written demand to the U.S.
Borrower or the Bermuda Borrower, as the case may be, by the Deposit Bank, such Issuing Lender or
such L/C Participant (a copy of which notice shall be sent by the Deposit Bank, such Issuing Lender
or such L/C Participant to the Administrative Agent), accompanied by the certificate described in
the last sentence of this Section 2A.06, the respective Account Party shall pay to the Deposit
Bank, such Issuing Lender or such L/C Participant for such increased cost or reduction. A
certificate submitted to the relevant Borrower by the Deposit Bank, such Issuing Lender or such L/C
Participant, as the case may be (a copy of which certificate shall be sent by the Deposit Bank,
such Issuing Lender or such L/C Participant to the Administrative Agent), setting forth in
reasonable detail the basis for the determination of such additional amount or amounts necessary to
compensate the Deposit Bank, such Issuing Lender or such L/C Participant as aforesaid shall be
final and conclusive and binding on such Account Party absent manifest error, although the failure
to deliver any such certificate shall not release or diminish such Account Party’s obligations to
pay additional amounts pursuant to this Section 2A.06 upon subsequent receipt of such certificate.




          Section 2B. Bank Guaranties.




          2B.01 Bank Guaranties.




          (a) Subject to and upon the terms and conditions herein set forth, a Borrower may request a
Bank Guaranty Issuer, at any time and from time to time on and after the Restatement Effective Date
and prior to the tenth Business Day preceding the CL Maturity Date, to issue, for the account of
the U.S. Borrower (in the case of requests made by it) or the account of the Bermuda Borrower (in
the case of
requests made by it) and for the benefit of any holder (or any trustee, agent or other similar
representative for any such holders) of B/G Supportable Indebtedness of the respective Account
Party or any of its or






-22-









 







their Wholly-Owned Subsidiaries, a bank guaranty in a form customarily used
by such Bank Guaranty Issuer or in such other form as has been approved by such Bank Guaranty
Issuer (each such bank guaranty, a “Bank Guaranty” and collectively, the “Bank
Guaranties”) in support of such B/G Supportable Indebtedness (it being understood and agreed
that (i) the form of Bank Guaranties shall be subject to the respective Bank Guaranty Issuer’s
internal policies and procedures for the issuance of bank guaranties and to applicable local law
restrictions and regulations and (ii) each Bank Guaranty Issuer may request the respective Account
Party to accept such Bank Guaranty Issuer’s general business conditions specifically applicable to
its bank guaranty business prior to the issuance of any Bank Guaranty). Each Bank Guaranty shall
constitute a utilization of the Credit-Linked Commitments and shall, subject to the provisions of
Section 1.14 if a Sharing Event occurs, be participated in (as more fully described in following
Section 2B.04(a)) by the CL Lenders in accordance with their respective CL Percentages. All Bank
Guaranties shall be denominated in Dollars or an Alternative Currency and shall expressly provide
the maximum amount that may be paid thereunder. Each Bank Guaranty shall constitute either a U.S.
Borrower Bank Guaranty or a Bermuda Borrower Bank Guaranty. The Bermuda Borrower shall have no
liability with respect to any U.S. Borrower Bank Guaranty which may be issued to the U.S. Borrower.




          (b) Subject to and upon the terms and conditions set forth herein, each Bank Guaranty Issuer
hereby agrees (subject to Section 2C.03, to the extent applicable in the case of Non-Dollar
Denominated Bank Guaranties) that it will, at any time and from time to time on and after the
Restatement Effective Date and prior to the tenth Business Day preceding the CL Maturity Date,
following its receipt of the respective Bank Guaranty Request, issue for the account of the
respective Account Party one or more Bank Guaranties, in support of such B/G Supportable
Indebtedness as is permitted to remain outstanding without giving rise to a Default or Event of
Default hereunder; provided that the respective Bank Guaranty Issuer shall be under no
obligation to issue any Bank Guaranty 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 Bank Guaranty Issuer from issuing such Bank
Guaranty or any requirement of law applicable to such Bank Guaranty Issuer or any request or
directive (whether or not having the force of law) from any governmental authority with
jurisdiction over such Bank Guaranty Issuer shall prohibit, or request that such Bank
Guaranty Issuer refrain from, the issuance of bank guaranties generally or such Bank
Guaranty in particular or shall impose upon such Bank Guaranty Issuer with respect to such
Bank Guaranty any restriction or reserve or capital requirement (for which such Bank
Guaranty Issuer is not otherwise compensated) not in effect on the Restatement Effective
Date, or any unreimbursed loss, cost or expense which was not applicable, in effect or known
to such Bank Guaranty Issuer as of the Restatement Effective Date and which such Bank
Guaranty Issuer in good faith deems material to it; or




     (ii) such Bank Guaranty Issuer, prior to the issuance of such Bank Guaranty, shall have
received written notice from either Borrower or the Required Lenders prior to the issuance
of such Bank Guaranty of the type described in clause (v) of Section 2B.01(c) or the last
sentence of Section 2B.03(b).



          (c) Notwithstanding the foregoing, (i) no Bank Guaranty shall be issued at any time when the
Aggregate CL Exposure exceeds (or would after giving effect to such issuance exceed) either (x) the
Total Credit-Linked Commitment at such time or (y) the aggregate amount of the Credit-Linked
Deposits in the Credit-Linked Deposit Account at such time, and (ii) each Bank Guaranty shall by
its terms terminate on or before the date which occurs 12 months after the date of the issuance
thereof (although any such Bank Guaranty may be extendable for successive periods of up to 12 months, but
not beyond the tenth Business Day preceding the CL Maturity Date, on terms acceptable to the Bank
Guar-







-23-









 







anty Issuer thereof), provided, however, that a Bank Guaranty shall not be
required to terminate by its terms on or before the twelve month anniversary of the date of
issuance thereof if the respective Account Party reasonably determines that the intended
beneficiary of such Bank Guaranty will not permit same to terminate as otherwise provided above,
(iii) no Bank Guaranty shall have an expiry date occurring later than the tenth Business Day
preceding the CL Maturity Date, provided, however, that a Bank Guaranty shall not
be required to have an expiry date as otherwise required above if the respective Account Party
reasonably determines that the beneficiary of such Bank Guaranty will not accept a Bank Guaranty
with an expiry date, (iv) each Bank Guaranty shall be denominated in Dollars or an Alternative
Currency and (v) no Bank Guaranty Issuer will issue any Bank Guaranty after it has received written
notice from either Borrower or the Required Lenders stating that a Default or an Event of Default
exists until such time as such Bank Guaranty Issuer shall have received a written notice of (x)
rescission of such notice from the party or parties originally delivering the same or (y) a waiver
of such Default or Event of Default by the Required Lenders.




          (d) Part B of Schedule XI hereto contains a description of certain bank guaranties issued (or
deemed issued) pursuant to the Original Credit Agreement and outstanding on the Restatement
Effective Date (and setting forth, with respect to each such bank guaranty, (i) the name of the
bank guaranty issuer, (ii) the face amount (including the currency in which such bank guaranty is
denominated, which shall be Dollars or an Alternative Currency), (iii) the name of the beneficiary,
and (iv) the expiry date (if any)). Each such bank guaranty, including any extension or renewal
thereof (each, as amended from time to time in accordance with the terms thereof and hereof, an
"Existing Bank Guaranty”), shall constitute either a “Bermuda Borrower Bank Guaranty” or a
“U.S. Borrower Bank Guaranty” (as set forth on Part B of Schedule XI) for all purposes of this
Agreement and issued, for purposes of Section 2B.04(a), on the Restatement Effective Date. Any
Lender hereunder (and any of such Lender’s Affiliates and/or branches) which has issued an Existing
Bank Guaranty shall constitute a “Bank Guaranty Issuer” for all purposes of this Agreement.




          2B.02 Minimum Face Amount. The Face Amount of each Bank Guaranty upon issuance shall
be not less than (x) in the case of a Dollar Denominated Bank Guaranty, $250,000, (y) in the case
of a Euro Denominated Bank Guaranty, €150,000 and (z) in the case of a Sterling Denominated Bank
Guaranty, £150,000, or in each case such lesser amount as is acceptable to the respective Bank
Guaranty Issuer.




          2B.03 Bank Guaranty Requests.




          (a) Whenever an Account Party desires that a Bank Guaranty be issued for its account, such
Account Party shall give the Administrative Agent (at the appropriate Notice Office) and the
respective Bank Guaranty Issuer at least 3 Business Days’ (or such shorter period as is acceptable
to such Bank Guaranty Issuer in any given case) written notice prior to the proposed date of
issuance (which shall be a Business Day). Each notice shall be in the form of Exhibit C-2
(each, a “Bank Guaranty Request”), including, without limitation, whether the requested
Bank Guaranty shall constitute a U.S. Borrower Bank Guaranty or a Bermuda Borrower Bank Guaranty
and, by specifying the Available Currency in which the requested Bank Guaranty is to be
denominated. Each Bank Guaranty Request shall include any other documents as such Bank Guaranty
Issuer customarily requires in connection therewith.




          (b) The making of each Bank Guaranty Request shall be deemed to be a representation and
warranty by the U.S. Borrower or the Bermuda Borrower, as the case may be, that such Bank Guaranty
may be issued in accordance with, and will not violate the requirements of, Section 2B.01(c).
Unless the respective Bank Guaranty Issuer has received notice from the Required Lenders
before it issues a Bank Guaranty that one or more of the applicable conditions specified in Section
6, as the case may




-24-









 







be, are not then satisfied, or that the issuance of such Bank Guaranty would
violate Section 2B.01(c), then such Bank Guaranty Issuer may issue the requested Bank Guaranty for
the account of the respective Account Party in accordance with such Bank Guaranty Issuer’s usual
and customary practices.




          2B.04 Bank Guaranty Participations.




          (a) Immediately upon the issuance by any Bank Guaranty Issuer of any Bank Guaranty, but
subject to Section 2C.03 to the extent applicable in the case of Non-Dollar Denominated Bank
Guaranties, such Bank Guaranty Issuer shall be deemed to have sold and transferred to each CL
Lender (each such Lender with respect to any Bank Guaranty, in its capacity under this Section
2B.04, a “B/G Participant”), and each such B/G Participant shall be deemed irrevocably and
unconditionally to have purchased and received from such Bank Guaranty Issuer, without recourse or
warranty, an undivided interest and participation (each a “B/G Participation”), in a
percentage equal to such B/G Participant’s CL Percentage in such Bank Guaranty, each Bank Guaranty
Payment made thereunder and the obligations of the respective Account Party under this Agreement
with respect thereto (although CL Facility Fees shall be payable directly to the Administrative
Agent for the account of the CL Lenders as provided in Section 3.01(a) and the B/G Participants
shall have no right to receive any portion of any Fronting Fees or any administration fees with
respect to any such Bank Guaranties) and any security therefor or guaranty pertaining thereto.
Upon any change in the Credit-Linked Commitments and, as a result thereof, the CL Percentages of
the CL Lenders pursuant to Section 1.13 or 13.04, it is hereby agreed that, with respect to all
outstanding Bank Guaranties and Unreimbursed Payments relating thereto, there shall be an automatic
adjustment to the participations pursuant to this Section 2B.04 to reflect the new CL Percentages
of the CL Lenders. With respect to each Bank Guaranty from time to time outstanding, all
calculations of the percentage participations therein of the various CL Lenders shall be made from
time to time by the Administrative Agent, which calculations shall be conclusive absent manifest
error. Furthermore, upon the occurrence of a Sharing Event and as more fully set forth in Section
1.14, additional sub-participations may be required to be granted by the various CL Lenders in
their participations in outstanding Bank Guaranties, in each case in accordance with, and subject
to the provisions of, Section 1.14.




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




          (c) In the event that any Bank Guaranty Issuer makes any payment or disbursement under any
Bank Guaranty issued by it and the respective Account Party shall not have reimbursed such amount
in full to such Bank Guaranty Issuer pursuant to Section 2B.05(a) by the date required by said
Section 2B.05(a) for such reimbursement, such Bank Guaranty Issuer shall promptly notify the
Administrative Agent, which shall promptly notify each B/G Participant therein and the Deposit Bank
of such failure, and each CL Lender (including in its capacity as a B/G Participant) hereby
irrevocably authorizes the Deposit Bank (and the Deposit Bank hereby agrees) to reimburse such Bank
Guaranty Issuer for such amount in Dollars (or, to the extent that the respective Unreimbursed
Payment is in an Alternative Currency, in an amount equal to the Dollar Equivalent thereof, as
determined by the Administrative Agent on
the date on which such payment or disbursement was made under the respective Bank Guaranty)
solely from such B/G Participant’s CL Percentage of the Credit-Linked Deposits on deposit with the
Deposit Bank in the Credit-Linked Deposit Account, in which case the Total Credit-Linked Commitment
shall be







-25-









 







reduced by the amount so applied (with a corresponding reduction in the Credit-Linked
Commitment of each CL Lender equal to such CL Lender’s CL Percentage of such aggregate amount so
applied); provided that any portion of the Unreimbursed Payments with respect to a
Non-Dollar Denominated Bank Guaranty which, because of currency fluctuations, represents amounts in
excess of the Total Credit-Linked Deposits, as more fully described in Section 2C.03, shall not be
reimbursed from Credit-Linked Deposits but shall instead be immediately repaid by the respective
Account Party. Furthermore, if any Specified Default or any Event of Default then exists, the
respective Bank Guaranty Issuer may, with respect to any payment or disbursement made by it under
any Bank Guaranty, request the Deposit Bank, in which case each CL Lender hereby irrevocably
authorizes the Deposit Bank (and the Deposit Bank hereby agrees), to reimburse the Bank Guaranty,
solely from such CL Lender’s CL Percentage of the Credit-Linked Deposits on deposit in the
Credit-Linked Deposit Account with the Deposit Bank for any Bank Guaranty Payment made by such Bank
Guaranty Issuer under such Bank Guaranty, as provided in the immediately preceding sentence
(notwithstanding the date of reimbursement of any such Bank Guaranty Payment by the date required
by Section 2B.05(a)), in which case the Total Credit-Linked Commitment shall be reduced by the
amount so applied as otherwise provided in the immediately preceding sentence, and any amounts
actually received pursuant to Section 2B.05(a) shall be applied to reimburse B/G Participants as
provided in following Section 2B.04(d)




          (d) Whenever any Bank Guaranty Issuer receives a payment of a reimbursement obligation as to
which the Administrative Agent has received for the account of such Bank Guaranty Issuer any
payments from the B/G Participants (or from the Deposit Bank on their behalf) pursuant to Section
2B.04(c) above, such Bank Guaranty Issuer shall, after paying itself any amounts owing to it as
described in Section 2C.03 in the case of payments received with respect to Non-Dollar Denominated
Bank Guaranties, pay (in same day funds in Dollars) to the Administrative Agent (and the
Administrative Agent shall promptly pay (in same day funds in Dollars) each B/G Participant which
has paid its CL Percentage thereof), an amount equal to such B/G Participant’s share (based on the
proportionate aggregate amount funded by such B/G Participant to the aggregate amount funded by all
B/G Participants) of the principal amount of such reimbursement obligation and interest thereon
accruing after the purchase of the respective participations.




          (e) Each Bank Guaranty Issuer shall, promptly after the issuance of, or amendment or
modification to, a Bank Guaranty, give the Administrative Agent and the respective Account Party
written notice of such issuance, amendment or modification, as the case may be, and such notice
shall be accompanied by a copy of such Bank Guaranty, such amendment or such modification, as the
case may be. Promptly upon receipt of such notice, the Administrative Agent shall notify each B/G
Participant, in writing, of such issuance, amendment or modification and if any B/G Participant
shall so request, the Administrative Agent shall furnish said B/G Participant with a copy of such
Bank Guaranty, such amendment or such modification, as the case may be.




          (f) Each Bank Guaranty Issuer (other than DBAG) shall deliver to the Administrative Agent and
the Deposit Bank, promptly on the first Business Day of each week, by facsimile transmission, the
aggregate daily Face Amount available to be drawn under each outstanding Bank Guaranty issued by
such Bank Guaranty Issuer for the previous week.




          (g) The obligations of the B/G Participants to make payments to the Administrative Agent for
the account of the respective Bank Guaranty Issuer with respect to Bank Guaranties issued by it
shall be irrevocable and not subject to counterclaim, setoff or other defense or any other
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:





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




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




     (iii) any draft, certificate or any other document presented under any Bank Guaranty
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;


provided that the B/G Participants shall not be obligated to reimburse such Bank Guaranty
Issuer for any wrongful payment made by such Bank Guaranty Issuer under a Bank Guaranty issued by
it as a result of deliberate acts or omissions constituting willful misconduct or gross negligence
on the part of such Bank Guaranty Issuer (as determined by a court of competent jurisdiction in a
final and non-appealable decision). Any action taken or omitted to be taken by any Bank Guaranty
Issuer under or in connection with any Bank Guaranty shall not create for such Bank Guaranty Issuer
any resulting liability to the B/G Participants or any other Person unless such action is taken or
omitted to be taken with gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final and non-appealable decision).




          2B.05 Agreement to Repay Bank Guaranty Payments.




          (a) The U.S. Borrower hereby agrees (in the case of U.S. Borrower Bank Guaranties) and the
Bermuda Borrower hereby agrees (in the case of Bermuda Borrower Bank Guaranties) to reimburse the
respective Bank Guaranty Issuer, by making payment in Dollars (if the respective Bank Guaranty is
denominated in an Alternative Currency, in an amount equal to the Dollar Equivalent of the
respective payment or disbursement, as determined by the Administrative Agent on the date of such
payment or disbursement) to the Administrative Agent in immediately available funds at the Payment
Office (or by making the payment directly to such Bank Guaranty Issuer at such location as may
otherwise have been agreed upon by the respective Account Party and such Bank Guaranty Issuer), for
any payment or disbursement (in the case of any such payment or disbursement under any Non-Dollar
Denominated Bank Guaranty, taking the Dollar Equivalent, as determined by the Administrative Agent,
of the amount of the respective payment or disbursement on the date upon which the respective
payment or disbursement is made) made by such Bank Guaranty Issuer under any Bank Guaranty issued
by it (each such amount so paid until reimbursed, an “Unreimbursed Payment”), not later
than the third Business Day after the Administrative Agent or the Bank Guaranty Issuer notifies the
respective Account Party 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 10.05 shall have occurred and be continuing, in which case all such
Unreimbursed Payments shall be due and payable immediately without presentment, demand, protest or
notice of any kind (all of which are hereby waived by the respective Account Party)), with interest
on the amount so paid or disbursed by such Bank Guaranty Issuer, to the extent not reimbursed prior
to 1:00 P.M. (New







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York time) on the date of such payment or disbursement, from and including the
date paid or disbursed to but excluding the date such Bank Guaranty Issuer is reimbursed by the
respective Account Party therefor at a rate per annum which shall be equal to Base Rate in effect
from time to time plus the Applicable Margin for Tranche B-1 Term Loans maintained as Base
Rate Loans, as in effect from time to time; 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
the receipt by an Account Party of notice of such payment or disbursement (or, if sooner, from the
date of occurrence of a Default or an Event of Default under Section 10.05), interest shall
thereafter accrue on the amounts so paid or disbursed by such Bank Guaranty Issuer (and until
reimbursed by the respective Account Party) at a rate per annum which is 2% in excess of the rate
otherwise applicable to the respective Unreimbursed Payment as provided above, with all such
interest payable pursuant to this Section 2B.05 to be payable on demand. The respective Bank
Guaranty Issuer shall give the respective Account Party prompt notice of each Bank Guaranty Payment
under any Bank Guaranty, provided that the failure to give, or any delay in giving, any
such notice shall in no way affect, impair or diminish the respective Account Party’s obligations
under this Agreement. The obligations of the respective Account Party to repay Unreimbursed
Payments as required above shall not be reduced, or satisfied, in any respect by payments made to
the Issuing Lender with any amounts on deposit in the Credit-Linked Deposit Account or as otherwise
provided in Section 2B.04(c).




          (b) The obligations of the U.S. Borrower (with respect to U.S. Borrower Bank Guaranties) and
the Bermuda Borrower (with respect to Bermuda Borrower Bank Guaranties) under this Section 2B.05 to
reimburse the respective Bank Guaranty Issuer with respect to Unreimbursed Payments (including, in
each case, interest thereon) shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the respective Account
Party may have or have had against any Lender (including in its capacity as Bank Guaranty Issuer or
as B/G Participant), including, without limitation, any defense based upon the failure of any
payment under a Bank Guaranty (each, a “Bank Guaranty Payment”) to conform to the terms of
such Bank Guaranty or any nonapplication or misapplication by the beneficiary of the proceeds of
such Bank Guaranty Payment, the respective Bank Guaranty Issuer’s only obligation to the respective
Account Party being to confirm that any documents required to be delivered under such Bank Guaranty
appear to have been delivered and that they appear to substantially comply on their face with
requirements of such Bank Guaranty; provided, however, that no Account Party shall
be obligated to reimburse any Bank Guaranty Issuer for any wrongful payment made by such Bank
Guaranty Issuer under a Bank Guaranty issued by it as a result of deliberate acts or omissions
constituting willful misconduct or gross negligence on the part of such Bank Guaranty Issuer (as
determined by a court of competent jurisdiction in a final and non-appealable decision). Any
action taken or omitted to be taken by any Bank Guaranty Issuer under or in connection with any
Bank Guaranty shall not create for such Bank Guaranty Issuer any resulting liability to any Account
Party unless such action is taken or admitted to be taken with gross negligence or willful
misconduct (as determined by a court of competent jurisdiction in a final and non-appealable
decision).




          2B.06 Increased Costs. If after the Restatement Effective Date, the Deposit Bank, any
Bank Guaranty Issuer or any B/G Participant determines in good faith that the adoption or
effectiveness after the Restatement Effective Date of any applicable law, rule or regulation,
order, guideline or request or any change therein, or any change after the Restatement Effective
Date in the interpretation or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or compliance by the
Deposit Bank, any Bank Guaranty Issuer or any B/G Participant with any request or directive
(whether or
not having the force of law) by any such authority, central bank or comparable agency shall
either (i) impose, modify or make applicable any reserve, deposit, capital adequacy or similar
requirement against Bank Guaranties issued by such Bank Guaranty Issuer or such B/G Participant’s
participation therein, or (ii) impose on the Deposit Bank, any Bank Guaranty Issuer or any B/G
Participant any other conditions directly or indirectly affecting this







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Agreement, the Credit-Linked
Deposits or any Bank Guaranty or such B/G Participant’s participation therein; and the result of
any of the foregoing is to increase the cost to the Deposit Bank, such Bank Guaranty Issuer or such
B/G Participant of issuing, maintaining or participating in the Credit-Linked Deposits, any Bank
Guaranty, or to reduce the amount of any sum received or receivable by the Deposit Bank, such Bank
Guaranty Issuer or such B/G Participant hereunder or under the other Credit Documents or reduce the
rate of return on its capital with respect to Bank Guaranties, then, upon written demand to the
U.S. Borrower or the Bermuda Borrower, as the case may be, by the Deposit Bank, such Bank Guaranty
Issuer or such B/G Participant (a copy of which notice shall be sent by the Deposit Bank, such Bank
Guaranty Issuer or such B/G Participant to the Administrative Agent), accompanied by the
certificate described in the last sentence of this Section 2B.06, the respective Account Party
shall pay to the Deposit Bank, such Bank Guaranty Issuer or such B/G Participant for such increased
cost or reduction. A certificate submitted to the relevant Account Party by the Deposit Bank, such
Bank Guaranty Issuer or such B/G Participant, as the case may be (a copy of which certificate shall
be sent by the Deposit Bank, such Bank Guaranty Issuer or such B/G Participant to the
Administrative Agent), setting forth in reasonable detail the basis for the determination of such
additional amount or amounts necessary to compensate the Deposit Bank, such Bank Guaranty Issuer or
such B/G Participant as aforesaid shall be final and conclusive and binding on such Account Party
absent manifest error, although the failure to deliver any such certificate shall not release or
diminish such Account Party’s obligations to pay additional amounts pursuant to this Section 2B.06
upon subsequent receipt of such certificate.




          2B.07 Cash Collateralization. No later than the date occurring ten Business Days
prior to the CL Maturity Date, the U.S. Borrower or the Bermuda Borrower, as the case may be, shall
either (i) terminate each Bank Guaranty issued to it without an expiry date (and cause each such
terminated Bank Guaranty to be surrendered for termination to the respective Bank Guaranty Issuer)
or (ii) enter into cash collateral arrangements with each Bank Guaranty Issuer which shall have
issued a Bank Guaranty to it without an expiry date on terms satisfactory to such Bank Guaranty
Issuer and the Administrative Agent, with the U.S. Borrower or the Bermuda Borrower, as the case
may be, depositing cash and/or Cash Equivalents (in the respective currency or currencies of the
respective Bank Guaranties, and in such amounts as will fully cash collateralize the maximum future
payments that could be made under the respective Bank Guaranties) pursuant to such cash collateral
arrangements to be held as security for all Bank Guaranty Outstandings of the U.S. Borrower or the
Bermuda Borrower, as the case may be, in respect of such Bank Guaranties. If (and only if) all
actions required above are taken to the satisfaction of the relevant Bank Guaranty Issuers and the
Administrative Agent, the Aggregate CL Exposure attributable to the Bank Guaranties so fully cash
collateralized shall be deemed to be $0 (including for purposes of Section 2C.04(a));
provided that unless and until such actions are taken the full amount of Bank Guaranty
Outstandings relating thereto shall be included in determining the Aggregate CL Exposure (including
for purposes of Section 2C.04(a)).




          Section 2C. Special Provisions.




          2C.01 Credit-Linked Deposit Account.




          (a) On the Restatement Effective Date and subject to the satisfaction of the conditions
precedent set forth in Sections 5 and 6, each CL Lender on such date shall pay to the Deposit Bank
such CL Lender’s Credit-Linked Deposit. The Credit-Linked Deposits shall be held by the Deposit
Bank
in (or credited to) the Credit-Linked Deposit Account, and no Person other than the Deposit
Bank shall have a right of withdrawal from the Credit-Linked Deposit Account or any other right or
power with respect to the Credit-Linked Deposits. Notwithstanding anything herein to the contrary,
the funding obligation of each CL Lender in respect of its participation in CL Credit Events shall
be satisfied in full upon the funding in full of its Credit-Linked Deposit.





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          (b) Each of the Deposit Bank, the Administrative Agent, each Issuing Lender, each Bank
Guaranty Issuer and each CL Lender hereby acknowledges and agrees that (i) each CL Lender is
funding its Credit-Linked Deposit to the Deposit Bank for application in the manner contemplated by
Sections 2A.04 and 2B.04, (ii) the Deposit Bank may invest the Credit-Linked Deposits in such
investments as may be determined from time to time by the Deposit Bank and (iii) the Deposit Bank
has agreed to pay to the Administrative Agent, who shall in turn pay to each CL Lender, a return on
its Credit-Linked Deposit (except (x) during periods when such Credit-Linked Deposits are used to
reimburse an Issuing Lender or a Bank Guaranty Issuer, as the case may be, with respect to payments
and disbursements on Letters of Credit and/or Bank Guaranties or (y) as otherwise provided in
Sections 2C.01(d) and 2C.01(e)) for each CL Lender equal at any time to the LIBOR Rate for the
Interest Period in effect for the Credit-Linked Deposits at such time less the
Credit-Linked Deposit Cost Amount at such time. Such interest will be paid to the CL Lenders
(solely from amounts received by it from the Deposit Bank) at the LIBOR Rate for an Interest Period
of (x) three months through April 14, 2010 and (y) one month or three months on and after April 14,
2010 (or at an amount determined in accordance with Section 2C.01(d) or 2C.01(e), as applicable)
less, in each case, the Credit-Linked Deposit Cost Amount in arrears on each CL Interest
Payment Date.




          (c) The U.S. Borrower, the Bermuda Borrower or any other Credit Party shall not have (x) any
right, title or interest in or to the Credit-Linked Deposit Account or the Credit-Linked Deposits
and/or (y) any obligations with respect thereto (except to refund portions thereof used to
reimburse (I) an Issuing Lender with respect to payments or disbursements on Letters of Credit as
provided in Section 2A.04 and/or (II) a Bank Guaranty Issuer with respect to payments or
disbursements on Bank Guaranties as provided in Section 2B.04), it being acknowledged and agreed by
the parties hereto that the funding of the Credit-Linked Deposits by the CL Lenders to the Deposit
Bank for deposit in the Credit-Linked Deposit Account and the application of the Credit-Linked
Deposits in the manner contemplated by Sections 2A.04 and 2B.04 constitute agreements among the
Deposit Bank, the Administrative Agent, each Issuing Lender, each Bank Guaranty Issuer and each CL
Lender with respect to the L/C Participations in the Letters of Credit and the B/G Participations
in the Bank Guaranties and do not constitute any loan or extension of credit to the U.S. Borrower,
the Bermuda Borrower or any other Credit Party.




          (d) If the Deposit Bank is not offering Dollar deposits (in the applicable amounts) in the
applicable Eurodollar interbank market, or the Deposit Bank determines that adequate and fair means
do not otherwise exist for ascertaining the LIBOR Rate for the Credit-Linked Deposits (or any part
thereof), then the Credit-Linked Deposits (or such parts, as applicable) shall be invested so as to
earn a return equal to the greater of (x) the Federal Funds Rate and (y) a rate determined by the
Deposit Bank in accordance with banking industry rules on interbank compensation.




          (e) If any (x) payment or disbursement under a Letter of Credit that has been funded by the CL
Lenders from the Credit-Linked Deposits as provided in Section 2A.04(c) or (y) payment or
disbursement under a Bank Guaranty that has been funded by the CL Lenders from the Credit-Linked
Deposits as provided in Section 2B.04(c) shall, in either case, be reimbursed by the applicable
Account Party (or another Person on its behalf) on a day other than on the last day of an Interest
Period or Scheduled Investment Termination Date applicable to the Credit-Linked Deposits, the
Administrative Agent shall, upon receipt thereof, pay over such amounts to the Deposit Bank, which,
in turn, will invest the
amount so reimbursed in overnight or short-term cash equivalent investments until the end of
the Interest Period or Scheduled Investment Termination Date at the time in effect, and the
respective Account Party shall pay to the Deposit Bank, upon the Deposit Bank’s request therefor
(provided that if an Event of Default specified in Section 10.05 shall occur with respect
to either Borrower, the result which would occur upon the giving of such request by the Deposit
Bank shall occur automatically without the giving of any such request), the amount, if any, by
which the interest accrued on a like amount of the Credit-Linked






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Deposits at the LIBOR Rate for the
Interest Period in effect therefor shall exceed the interest earned through the investment of the
amount so reimbursed for the period from the date of such repayment or reimbursement through the
end of the applicable Interest Period, as determined by the Deposit Bank (such determination shall,
absent manifest error, be final and conclusive and binding on all parties hereto) and set forth in
the request for payment delivered to the respective Account Party. In the event that the
respective Account Party shall fail to pay any amount due under this Section 2C.01(e), the interest
payable by the Deposit Bank to the CL Lenders on their Credit-Linked Deposits under Section
2C.01(b) shall be correspondingly reduced and the CL Lenders shall, without further act, succeed,
ratably in accordance with their respective CL Percentages, to the rights of the Deposit Bank with
respect to such amount due from the respective Account Party. All reimbursements of (x) Drawings
under Letters of Credit that have been funded by the CL Lenders from the Credit-Linked Deposits as
provided in Section 2A.04(c) or (y) Bank Guaranty Payments under Bank Guaranties that have been
funded by the CL Lenders from the Credit-Linked Deposits as provided in Section 2B.04(c), in each
case received by the Administrative Agent prior to the termination of the Total Credit-Linked
Commitment, shall be paid over to the Deposit Bank, which will deposit same in the Credit-Linked
Deposit Account. The Account Party shall not have any responsibility or liability to the CL
Lenders, the Administrative Agent, the Issuing Lender or any other Person in respect of the
establishment, maintenance, administration or misappropriation of the Credit-Linked Deposit Account
or with respect to the investment of amounts held therein; provided, however, that
notwithstanding anything to the contrary contained in this Section 2C.01(e), the Administrative
Agent, acting in its capacity as such, shall be entitled to the indemnities provided elsewhere in
this Agreement.




          2C.02 European Monetary Union. The following provisions of this Section 2C.02 shall
come into effect on and from the date on which the United Kingdom becomes a Participating Member
State. Each obligation under this Agreement which has been denominated in Sterling shall be
redenominated into Euros in accordance with the relevant EMU Legislation. However, if and to the
extent that the relevant EMU Legislation provides that an amount which is denominated in Sterling
can be paid by the debtor either in Euros or in that national currency unit, each party to this
Agreement shall be entitled to pay or repay any amount denominated or owing in Sterling hereunder
either in Euros or in Sterling. Without prejudice and in addition to any method of conversion or
rounding prescribed by any relevant EMU Legislation, (i) each reference in this Agreement to a
minimum amount (or an integral multiple thereof) in Sterling shall be replaced by a reference to
such reasonably comparable and convenient amount (or an integral multiple thereof) in Euros as the
Administrative Agent may from time to time specify and (ii) except as expressly provided in this
Section 2C.02, this Agreement shall be subject to such reasonable changes of construction as the
Administrative Agent may from time to time specify to be necessary or appropriate to reflect the
introduction of or changeover to Euros in the United Kingdom, provided that this Section
2C.02 shall not reduce or increase any actual or contingent liability arising under this Agreement.




          2C.03 Special Provisions Regarding Non-Dollar Denominated Letters of Credit and Non-Dollar
Denominated Bank Guaranties. As an accommodation to each of the Account Parties, it is
understood and agreed that the respective Issuing Lenders and Bank Guaranty Issuers may, but shall
not be obligated to, issue from time to time Letters of Credit or
Bank Guaranties, as the case may be, denominated in Alternative Currencies, otherwise in
accordance with the relevant provisions of this Section 2. The respective Issuing Lender or Bank
Guaranty Issuer, as the case may be, may, at any time, in its sole discretion, determine not to
issue Letters of Credit or Bank Guaranties, as the case may be, denominated in any Alternative
Currency. If any Non-Dollar Denominated Letters of Credit and/or Non-Dollar Denominated Bank
Guaranties are from time to time issued, it is understood that the definitions of Stated Amount (in
the case of Non-Dollar Denominated Letters of Credit) and Face Amount (in the case of Non-Dollar
Denominated Bank Guaranties) contained in this Agreement are each, respectively, designed to







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provide (pursuant to the proviso thereto) a cushion to reduce the risk that the sum of (x) the
aggregate Unpaid Drawings with respect to the Letters of Credit and (y) the aggregate Unreimbursed
Payments with respect to the Bank Guaranties would ever exceed the aggregate amount of
Credit-Linked Deposits available to repay same. Nonetheless, it is possible, because of currency
fluctuations, that the sum of the aggregate Letter of Credit Outstandings and Bank Guaranty
Outstandings would exceed the amount of Credit-Linked Deposits from time to time. If that
situation ever occurs at any time, the U.S. Borrower and/or the Bermuda Borrower, as the case may
be, shall immediately make all payments required pursuant to Section 4.02(a). Furthermore, if a
Drawing occurs under any Non-Dollar Denominated Letter of Credit or a Bank Guaranty Payment occurs
under any Non-Dollar Denominated Bank Guaranty at a time when the sum of the aggregate Letter of
Credit Outstandings and Bank Guaranty Outstandings exceeds the Total Credit-Linked Deposits as a
result of currency fluctuations after the initial issuance of the respective Non-Dollar Denominated
Letter of Credit and/or Non-Dollar Denominated Bank Guaranty, as the case may be, then, unless the
respective Account Party repays such Drawing and/or Bank Guaranty Payment (or the portion thereof
which represents the excess amounts described above), (x) the respective Issuing Lender shall bear
the risk on that portion of the Unpaid Drawings with respect to such Non-Dollar Denominated Letter
of Credit which represents the excess of the sum of the aggregate Letter of Credit Outstandings and
Bank Guaranty Outstandings over the amount of Credit-Linked Deposits (but only to the extent caused
by currency fluctuations after the issuance of the respective Non-Dollar Denominated Letter of
Credit) and (y) the respective Bank Guaranty Issuer shall bear the risk on that portion of the Bank
Guaranty Payments with respect to such Non-Dollar Denominated Bank Guaranties which represents the
excess of the sum of the aggregate Letter of Credit Outstandings and Bank Guaranty Outstandings
over the amount of Credit-Linked Deposits (but only to the extent caused by currency fluctuations
after the issuance of the respective Non-Dollar Denominated Bank Guaranty), and any payments
received by the Issuing Lender or Bank Guaranty Issuer, as the case may be (or others on their
respective behalf), with respect to such Unpaid Drawings (and interest thereon, which shall in any
event be payable at the rates specified in Section 2A.05(a)) and/or Unreimbursed Payments (and
interest thereon, which shall in any event be payable at the rates specified in Section 2B.05(a)),
shall be retained by the respective Issuing Lender or Bank Guaranty Issuer, as the case may be, for
its own account. Any amounts owing to an Issuing Lender or Bank Guaranty Issuer as described above
in this Section 2C.03 shall be entitled to elevated priorities with respect to cash collateral as
described in Section 4.02(a) and the enhanced priorities described in Section 7.4 of the U.S.
Security Agreement.




          2C.04 Special Provisions Regarding Return of Credit-Linked Deposits. At the time of
any termination or reduction of the Total Credit-Linked Commitment pursuant to Section 2A.04(c),
2B.04(c), 3.02(b), 3.03 or 10, the Deposit Bank shall return to the Administrative Agent who shall,
in turn, return to the CL Lenders (ratably in accordance with their respective CL Percentages),
their Credit-Linked Deposits (to the extent not theretofore applied pursuant to Section 2A.04(c) or
2B.04(c)) in an amount (if any) by which the aggregate amount of Credit-Linked Deposits at such
time exceeds the greater of (x) the Total Credit-Linked Commitment after giving effect to such
reduction or termination and (y) the Aggregate CL Exposure at such time. If at the time of any
determination pursuant to the immediately preceding sentence the amount determined pursuant to
clause (y) of the preceding sentence exceeded the amount determined pursuant to clause (x) of the preceding sentence, the Deposit Bank shall from time to
time thereafter, upon the direction of the Administrative Agent, return to the Administrative
Agent, who shall, in turn, return to the CL Lenders (ratably in accordance with their CL
Percentages), their Credit-Linked Deposits to the extent that the aggregate amount thereof from
time to time exceeds the greater of (x) the Total Credit-Linked Commitment after giving effect to
prior reductions thereto or terminations thereof and (y) the Aggregate CL Exposure at such time.




          If at any time, and for any reason, any Issuing Bank or Bank Guaranty Issuer is required to
return to the respective Account Party (or any other Person) or otherwise disgorge amounts in
respect 




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of payments previously received by it from (or on behalf of) any Account Party or other
Credit Party in respect of payments theretofore received by the respective Issuing Bank or Bank
Guaranty Issuer in respect of Drawings or Bank Guaranty Payments, as the case may be, previously
made, then the respective Issuing Bank or Bank Guaranty Issuer shall be entitled to treat the
amounts so returned or disgorged as not having been paid to it (by the respective Account Party or
other Credit Party) for purposes of this Agreement and shall be entitled to reimbursement as
provided in the relevant provisions of Section 2A or 2B, as the case may be, and, without limiting
the foregoing, to the extent that Credit-Linked Deposits have previously been returned to the CL
Lenders (in accordance with the provisions of preceding clause (a) or otherwise), the respective
Issuing Bank or Bank Guaranty Issuer shall be entitled to be indemnified by the CL Lenders for the
amount so returned or disgorged (and the CL Lenders hereby agree to so indemnify the respective
Issuing Bank or Bank Guaranty Issuer); provided that no CL Lender shall be obligated
pursuant to this clause (b) to make payments, in the aggregate, of amounts in excess of the amount
of Credit-Linked Deposits actually returned to it.




          Section 3. Fees; Termination of Commitments.




          3.01 Fees.




          (a) The Borrowers jointly and severally agree to pay to the Administrative Agent for
distribution to each CL Lender (based on each such CL Lender’s CL Percentage) a fee (the “CL
Facility Fee”) equal to the sum of (I) a rate per annum equal to the CL Applicable Margin on
the Total Credit-Linked Commitment as in effect from time to time (or, if terminated, on the
aggregate amount of the Credit-Linked Deposits from time to time), (II) a rate per annum equal to
the Credit-Linked Deposit Cost Amount as in effect from time to time on the amount of the Total
Credit-Linked Commitment as in effect from time to time (or, if terminated, on the aggregate amount
of the Credit-Linked Deposits from time to time) and (III) for the period commencing on the
effective date of Amendment 1, a rate per annum equal to the amount, if any, by which (x) 3.00%
exceeds (y) the LIBOR Rate in effect for the Interest Period with respect to which such CL Facility
Fee is being paid on the amount of the Total Credit-Linked Commitment as in effect from time to
time (or, if terminated, on the aggregate amount of the Credit-Linked Deposits from time to time),
in each case for the period from and including the Restatement Effective Date (or in the case of
subclause (III) above, the effective date of Amendment 1) to and including the date on which the
Total Credit-Linked Commitment has been terminated, all remaining Credit-Linked Deposits have been
returned to the CL Lenders or applied to pay amounts owing with respect to Letters of Credit and/or
Bank Guaranties as more fully provided in Sections 2A and 2B hereof, all Unpaid Drawings and all
Unreimbursed Payments (including, in each case, all accrued and unpaid interest thereon) have been
paid in full and all Letters of Credit and all Bank Guaranties have been terminated. Accrued CL
Facility Fees shall be due and payable quarterly in arrears on each CL Interest Payment Date and on
the first date upon which the Total Credit-Linked Commitment has been terminated, all remaining
Credit-Linked Deposits have been returned to the CL Lenders or applied to pay amounts owing with
respect to Letters of Credit and/or Bank Guaranties as more fully provided in Sections 2A and 2B
hereof, all Unpaid
Drawings and all Unreimbursed Payments (including, in each case, all accrued and unpaid
interest thereon) have been paid in full and all Letters of Credit and all Bank Guaranties have
been terminated.




          (b) Each Account Party agrees to pay to the respective Issuing Lender, for its own account, in
Dollars, a facing fee in respect of each Letter of Credit issued for its account hereunder (the
"Facing Fee”) for the period from and including the date of issuance or renewal of such
Letter of Credit to and including the termination or expiration of such Letter of Credit, computed
at a rate equal to 1/8 of 1% per annum of the daily Stated Amount of such Letter of Credit;
provided that in no event shall the annual Facing Fee with respect to any Letter of Credit
be less than the Minimum Applicable Facing Fee; it being agreed that (i) on the date of issuance of
any Letter of Credit and on each anniversary thereof prior to the




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termination of such Letter of
Credit, if the Minimum Applicable Facing Fee will exceed the amount of Facing Fees that will accrue
with respect to such Letter of Credit for the immediately succeeding 12-month period, the full
Minimum Applicable Facing Fee shall be payable on the date of issuance of such Letter of Credit and
on each such anniversary thereof prior to the termination of such Letter of Credit and (ii) if on
the date of the termination of any Letter of Credit, the Minimum Applicable Facing Fee actually
exceeds the amount of Facing Fees paid or payable with respect to such Letter of Credit for the
period beginning on the date of the issuance thereof (or, if the respective Letter of Credit has
been outstanding for more than one year, the date of the last anniversary of the issuance thereof
occurring prior to the termination of such Letter of Credit) and ending on the date of the
termination thereof, an amount equal to such excess shall be paid as additional Facing Fees with
respect to such Letter of Credit on the next date upon which Facing Fees are payable in accordance
with the immediately succeeding sentence. Except as provided in the immediately preceding
sentence, accrued Facing Fees shall be due and payable quarterly in arrears on each CL Interest
Payment Date and upon the first day on or after the termination of the Total Credit-Linked
Commitment upon which no Letters of Credit remain outstanding. Notwithstanding anything to the
contrary contained in this Agreement, to the extent that any Account Party has paid advance facing
fees to any Issuing Lender with respect to any Existing Letter of Credit pursuant to the Original
Credit Agreement, there shall be credited against the Facing Fees due to such Issuing Lender under
this Agreement the amount of such advance facing fees which related to periods after the
Restatement Effective Date.




          (c) The respective Account Party agrees to pay to the respective Issuing Lender, in Dollars,
for its own account, upon each payment under, issuance of, or amendment to, any Letter of Credit,
such amount as shall at the time of such event be the administrative charge which such Issuing
Lender is customarily charging for issuances of, payments under or amendments of, Letters of Credit
issued by it.




          (d) Each Account Party agrees to pay to the respective Bank Guaranty Issuer, for its own
account, in Dollars, a fronting fee in respect of each Bank Guaranty issued to it hereunder (the
"Fronting Fee”) for the period from and including the date of issuance or renewal of such
Bank Guaranty to and including the termination or expiration of such Bank Guaranty, computed at a
rate equal to 1/8 of 1% per annum of the daily Face Amount of such Bank Guaranty, provided
that in no event shall the annual Fronting Fee with respect to any Bank Guaranty be less than the
Minimum Applicable Fronting Fee; it being agreed that (i) on the date of issuance of any Bank
Guaranty and on each anniversary thereof prior to the termination of such Bank Guaranty, if the
Minimum Applicable Fronting Fee will exceed the amount of Fronting Fees that will accrue with
respect to such Bank Guaranty for the immediately succeeding 12-month period, the full Minimum
Applicable Fronting Fee shall be payable on the date of issuance of such Bank Guaranty and on each
such anniversary thereof prior to the termination of such Bank Guaranty and (ii) if on the date of
the termination of any Bank Guaranty, the Minimum Applicable Fronting Fee actually exceeds the
amount of Fronting Fees paid or payable with respect to such Bank Guaranty for the period beginning
on the date of the issuance thereof (or, if the respective Bank Guaranty has been
outstanding for more than one year, the date of the last anniversary of the issuance thereof
occurring prior to the termination of such Bank Guaranty) and ending on the date of the termination
thereof, an amount equal to such excess shall be paid as additional Fronting Fees with respect to
such Bank Guaranty on the next date upon which Fronting Fees are payable in accordance with the
immediately succeeding sentence. Except as provided in the immediately preceding sentence, accrued
Fronting Fees shall be due and payable, quarterly in arrears on each CL Interest Payment Date and
upon the first day on or after the termination of the Total Credit-Linked Commitment upon which no
Bank Guaranties remain outstanding. Notwithstanding anything to the contrary contained in this
Agreement, to the extent that any Account Party has paid advance fronting fees to any Bank Guaranty
Issuer with respect to any Existing Bank Guaranty pursuant to the Original Credit Agreement, there
shall be credited against the Fronting Fees due to such







-34-









 







Bank Guaranty Issuer under this Agreement
the amount of such advance fronting fees which related to periods after the Restatement Effective
Date.




          (e) The respective Account Party agrees to pay to the respective Bank Guaranty Issuer, in
Dollars, for its own account, upon each payment under, issuance of, or amendment to, any Bank
Guaranty, such amount as shall at the time of such event be the administrative charge which such
Bank Guaranty Issuer is customarily charging for issuances of, payments under or amendments of,
Bank Guaranties issued by it.




          (f) The Borrowers shall pay to the Administrative Agent for distribution to each Incremental
Term Loan Lender such fees and other amounts, if any, as are specified in the relevant Incremental
Term Loan Commitment Agreement, with the fees and other amounts, if any, to be payable on the
respective Incremental Term Loan Commitment Date.




          (g) Each Borrower agrees to pay to each Agent, for its own account, such other fees as have
been agreed to in writing by such Borrower and the Agents.




          (h) All computations of Fees shall be made in accordance with Section 13.07(b).




          3.02 Voluntary Termination or Reduction of Commitments and Adjustments of Commitments.




          (a) Upon at least three Business Days’ prior notice from an Authorized Officer of the
applicable Incremental Term Loan Borrower to the Administrative Agent at its Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Incremental Term Loan
Lenders), the applicable Incremental Term Loan Borrower shall have the right, at any time and from
time to time, without premium or penalty, to terminate the Total Incremental Term Loan Commitment
at such time, in whole or in part, in aggregate minimum amounts of at least $1,000,000 in the case
of partial reductions, with the amount of each reduction pursuant to this Section 3.02(a) to apply
proportionately and permanently reduce the Incremental Term Loan Commitments of each Lender with
such a Commitment. Each reduction to the Total Incremental Term Loan Commitment pursuant to this
Section 3.02(a) shall be applied to reduce the then remaining Incremental Term Loan Scheduled
Repayments of the respective Tranche of Incremental Term Loans on a pro rata basis (based upon the
then remaining principal amount of the Incremental Term Loan Scheduled Repayments of such Tranche
after giving effect to all prior reductions thereto).




          (b) 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 CL
Lenders), the U.S. Borrower shall have the right, at any time and from time to time, without
premium or penalty, to terminate the Total Unutilized Credit-Linked Commitment in whole, or reduce
it in part in aggregate minimum amounts of $1,000,000, provided that no such reduction
shall be permitted to be
made pursuant to this Section 3.02(b) if the effect thereof is to cause the Aggregate CL
Exposure to exceed the Total Credit-Linked Commitment after giving effect to the reduction thereto
pursuant to this Section 3.02(b). Each reduction to the Total Credit-Linked Commitment pursuant to
this Section 3.02(b) shall apply to proportionately and permanently reduce the Credit-Linked
Commitment of each CL Lender (based on their respective CL Percentages). At the time of any
termination or reduction of the Total Credit-Linked Commitment pursuant to this Section 3.02(b),
the Administrative Agent shall request the Deposit Bank to (and the Deposit Bank agrees that it
will) withdraw from the Credit-Linked Deposit Account and to pay same over to the Administrative
Agent, and the Administrative Agent shall return to the CL Lenders (ratably in accordance with
their respective CL Percentages) their Credit-Linked Deposits in







-35-









 







an amount by which the aggregate
amount of the Credit-Linked Deposits at such time exceeds the Total Credit-Linked Commitment as in
effect immediately after giving effect to such termination.




          (c) In the event of certain refusals by a Lender as provided in Section 4.01 or 13.12(b) to
consent to certain proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Lenders, the applicable Incremental Term Loan
Borrower may, subject to the applicable requirements of said Sections 4.01 and/or 13.12(b), upon
five Business Days’ prior written notice to the Administrative Agent at its Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Lenders), terminate the
Incremental Term Loan Commitments, if any, and/or the Credit Linked Commitment, if any, of such
Lender, so long as (x) all Loans, Unpaid Drawings and Unreimbursed Payments (to the extent that
such Lender’s Credit-Linked Commitment is being terminated), together with accrued and unpaid
interest, Fees and all other amounts, owing to such Lender (excluding amounts owing in respect of
Loans of any Tranche maintained by such Lender which are not being repaid pursuant to Section
13.12(b)) are repaid concurrently with the effectiveness of such termination (at which time
Schedule I shall be deemed modified to reflect such changed amounts) and (y) after giving effect to
such termination (and the adjustments to the CL Percentages of the remaining Lenders as
contemplated below), the Individual CL Exposure of any remaining CL Lender shall not exceed its
Credit-Linked Commitment. After giving effect to the termination of the Commitments of any Lender
pursuant to the provisions of this Section 3.02(c), unless the respective Lender continues to have
outstanding Term Loans or other Commitments (if any) hereunder, 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 1.10, 1.11, 2A.06, 2B.06, 4.04, 13.01 and
13.06), which shall survive as to such repaid Lender. In cases where the Credit-Linked Commitments
of any Lender are terminated pursuant to this Section 3.02(c), except in cases where the respective
Credit-Linked Commitments are replaced in full, after giving effect to the termination of any such
Credit-Linked Commitments of a given Lender pursuant to this Section 3.02(c), there shall occur
automatic adjustments (as determined by the Administrative Agent) in the respective CL Percentages
of the remaining CL Lenders in accordance with the definition of CL Percentage contained herein.
At the time of any termination of a CL Lender’s Credit-Linked Commitment pursuant to this Section
3.02(c), the Administrative Agent shall request the Deposit Bank to (and the Deposit Bank agrees
that it will) withdraw from the Credit-Linked Deposit Account and to pay same over to the
Administrative Agent, and the Administrative Agent shall return to such CL Lender its Credit-Linked
Deposit; provided that if, and to the extent, the respective CL Lender is replaced by way
of assignment, then its Credit-Linked Deposit shall remain in the Credit-Linked Deposit Account and
the respective assignee shall pay the assigning CL Lender an amount equal to the Credit-Linked
Deposit so assigned. Each reduction to the Total Incremental Term Loan Commitment pursuant to this
Section 3.02(c) shall be applied to reduce the then remaining Incremental Term Loan Scheduled
Repayments of the respective Tranche of Incremental Term Loans on a pro rata basis (based upon the
then remaining principal amount of the Incremental Term Loan Scheduled Repayments of such Tranche
after giving effect to all prior reductions thereto).




          3.03 Mandatory Reduction of Commitments.




          (a) The Tranche B-1 Term Loan Commitments shall terminate in full on the Amendment No. 3
Effective Date (after giving effect to the making of Tranche B-1 Term Loans on such date).




          (b) The Tranche C-1 Term Loan Commitments shall terminate in full on the Amendment No. 3
Effective Date (after giving effect to the making of Tranche C-1 Term Loans on such date).




          (c) The Total Credit-Linked Commitment shall be reduced on the dates, and in the amounts,
provided in Sections 2A.04(c) and 2B.04(c). At the time of any termination or reduction of the




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Total Credit-Linked Commitment pursuant to Section 2A.04(c), Section 2B.04(c), this Section 3.03 or
Section 10, the actions required by Section 2C.04(a) shall be taken. Each reduction to, or
termination of, the Total Credit-Linked Commitment shall be applied to proportionately reduce or
terminate, as the case may be, the Credit-Linked Commitment of each CL Lender (in accordance with
their respective CL Percentages).




          (d) The Incremental Term Loan Commitments under a given Tranche shall terminate in full on the
Incremental Term Loan Borrowing Date in respect of such Tranche (after giving effect to any
Incremental Term Loans of such Tranche to be made on such date).




          Section 4. Prepayments; Repayments; Taxes.




          4.01 Voluntary Prepayments. Each Borrower shall have the right to prepay the Loans
made to such Borrower, without premium or penalty (but subject to Section 1.11), and the right to
allocate such prepayments to Loans of a given Tranche, as such Borrower elects, in whole or in
part, at any time and from time to time on the following terms and conditions:





     (i) an Authorized Officer of such Borrower shall give the Administrative Agent at its
Notice Office written notice (or telephonic notice promptly confirmed in writing) of its
intent to prepay the Loans, specifying the Tranche or Tranches of the Loans to be prepaid,
the Types of Loans to be repaid and, in the case of Eurodollar Loans, the specific Borrowing
or Borrowings pursuant to which made, which notice shall be given by the Authorized Officer
of such Borrower (x) prior to 2:00 P.M. (New York time) at least one Business Day prior to
the date of such prepayment in the case of Loans maintained as Base Rate Loans and (y) prior
to 10:00 A.M. (New York time) at least three Business Days prior to the date of such
prepayment in the case of Eurodollar Loans, which notice shall be promptly transmitted by
the Administrative Agent to each of the Lenders;




     (ii) each partial prepayment applied to any Tranche of Loans shall be in an aggregate
principal amount of at least $1,000,000, provided that if any partial prepayment of
Eurodollar Loans made pursuant to any Borrowing shall reduce the outstanding Eurodollar
Loans made pursuant to such Borrowing to an amount less than $5,000,000, then such Borrowing
may not be continued as a Borrowing of Eurodollar Loans beyond the Interest Period
applicable thereto and any election of an Interest Period with respect thereto given by such
Borrower shall have no force or effect;




     (iii) each prepayment in respect of any Loans made pursuant to a Borrowing shall be
applied pro rata among such Loans made pursuant to such Borrowing; and




     (iv) each prepayment of principal of Loans of a given Tranche pursuant to this Section
4.01 shall be applied to reduce the then remaining Scheduled Repayments of the respective
Tranche of Term Loans in the manner specified by the applicable Borrower in the
applicable prepayment notice.




     4.02 Mandatory Repayments and Commitment Reductions.



          (a) If on any date the aggregate amount of all Letter of Credit Outstandings and Bank Guaranty
Outstandings exceeds the Total Credit-Linked Commitment as then in effect, the U.S. Borrower or the
Bermuda Borrower (as determined by the U.S. Borrower) (subject to clause (x) of the proviso to this
clause (a)) agrees to pay to the Administrative Agent at the Payment Office on such date an amount
of cash and/or Cash Equivalents in Dollars equal to such excess, such cash or Cash Equiva-




-37-









 







lents to
be held as security for all Obligations of the respective Borrower (including, without limitation,
in the case of the U.S. Borrower pursuant to the Borrower Guaranty) to the Issuing Lenders, Bank
Guaranty Issuers and Lenders relating to Letters of Credit and Bank Guaranties (and reimbursement
and other Obligations relating thereto) hereunder in a cash collateral account to be established
by, and under the sole dominion and control of, the Administrative Agent; provided that (x)
the aggregate amount of cash and/or Cash Equivalents paid by the Bermuda Borrower to the
Administrative Agent under this clause (a) shall not at any time exceed the sum of the Letter of
Credit Outstandings (with respect to Bermuda Borrower Letters of Credit) and the Bank Guaranty
Outstandings (with respect to Bermuda Borrower Bank Guaranties) at such time and (y) any such cash
and/or Cash Equivalents shall first be applied to repay any amounts owing to the respective Issuing
Lender and Bank Guaranty Issuer as described in Section 2C.03 hereof.




          (b) (i) On each date set forth below, the U.S. Borrower shall repay the principal amount of
Tranche B-1 Term Loans set forth opposite such date (each such repayment, as the same may be
reduced as provided in Sections 4.01 and 4.02(g), a “Tranche B-1 Term Loan Scheduled
Repayment”):




	 	 	 	 	 
	Tranche B-1 Term Loan Scheduled Repayment Date	 	Amount
	Last Business Day of June, 2010
	 	$	625,000	 
	Last Business Day of September, 2010
	 	$	625,000	 
	Last Business Day of December, 2010
	 	$	625,000	 
	Last Business Day of March, 2011
	 	$	625,000	 
	Last Business Day of June, 2011
	 	$	625,000	 
	Last Business Day of September, 2011
	 	$	625,000	 
	Last Business Day of December, 2011
	 	$	625,000	 
	Last Business Day of March, 2012
	 	$	625,000	 
	Last Business Day of June, 2012
	 	$	625,000	 
	Last Business Day of September, 2012
	 	$	625,000	 
	Last Business Day of December, 2012
	 	$	625,000	 
	Last Business Day of March, 2013
	 	$	625,000	 
	Last Business Day of June, 2013
	 	$	625,000	 
	Last Business Day of September, 2013
	 	$	625,000	 
	Last Business Day of December, 2013
	 	$	625,000	 
	Last Business Day of March, 2014
	 	$	625,000	 
	Last Business Day of June, 2014
	 	$	625,000	 
	Last Business Day of September, 2014
	 	$	625,000	 
	Last Business Day of December, 2014
	 	$	625,000	 
	Last Business Day of March, 2015
	 	$	625,000	 
	Last Business Day of June, 2015
	 	$	625,000	 






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	Tranche B-1 Term Loan Scheduled Repayment Date	 	Amount
	Last Business Day of September, 2015
	 	$	625,000	 
	Last Business Day of December, 2015
	 	$	625,000	 
	Last Business Day of March, 2016
	 	$	625,000	 
	Last Business Day of June, 2016
	 	$	625,000	 
	Last Business Day of September, 2016
	 	$	625,000	 
	Last Business Day of December, 2016
	 	$	625,000	 
	Last Business Day of March, 2017
	 	$	625,000	 
	Tranche B-1/C-1 Term Loan Maturity Date
	 	$	232,500,000	 






          (ii) On each date set forth below, the Bermuda Borrower shall repay the principal amount of
Tranche C-1 Term Loans set forth opposite such date (each such repayment, as the same may be
reduced as provided in Sections 4.01 and 4.02(g), a “Tranche C-1 Term Loan Scheduled
Repayment”):




	 	 	 	 	 
	Tranche C-1 Term Loan Scheduled Repayment Date	 	Amount
	Last Business Day of June, 2010
	 	$	1,500,000	 
	Last Business Day of September, 2010
	 	$	1,500,000	 
	Last Business Day of December, 2010
	 	$	1,500,000	 
	Last Business Day of March, 2011
	 	$	1,500,000	 
	Last Business Day of June, 2011
	 	$	1,500,000	 
	Last Business Day of September, 2011
	 	$	1,500,000	 
	Last Business Day of December, 2011
	 	$	1,500,000	 
	Last Business Day of March, 2012
	 	$	1,500,000	 
	Last Business Day of June, 2012
	 	$	1,500,000	 
	Last Business Day of September, 2012
	 	$	1,500,000	 
	Last Business Day of December, 2012
	 	$	1,500,000	 
	Last Business Day of March, 2013
	 	$	1,500,000	 
	Last Business Day of June, 2013
	 	$	1,500,000	 
	Last Business Day of September, 2013
	 	$	1,500,000	 
	Last Business Day of December, 2013
	 	$	1,500,000	 
	Last Business Day of March, 2014
	 	$	1,500,000	 
	Last Business Day of June, 2014
	 	$	1,500,000	 
	Last Business Day of September, 2014
	 	$	1,500,000	 






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	Tranche C-1 Term Loan Scheduled Repayment Date	 	Amount
	Last Business Day of December, 2014
	 	$	1,500,000	 
	Last Business Day of March, 2015
	 	$	1,500,000	 
	Last Business Day of June, 2015
	 	$	1,500,000	 
	Last Business Day of September, 2015
	 	$	1,500,000	 
	Last Business Day of December, 2015
	 	$	1,500,000	 
	Last Business Day of March, 2016
	 	$	1,500,000	 
	Last Business Day of June, 2016
	 	$	1,500,000	 
	Last Business Day of September, 2016
	 	$	1,500,000	 
	Last Business Day of December, 2016
	 	$	1,500,000	 
	Last Business Day of March, 2017
	 	$	1,500,000	 
	Tranche B-1/C-1 Term Loan Maturity Date
	 	$	558,000,000	 






          (iii) Each Incremental Term Loan Borrower shall be required to make, with respect to each
Tranche of Incremental Term Loans of such Incremental Term Loan Borrower, to the extent then
outstanding, scheduled amortization payments of such Tranche of Incremental Term Loans on the dates
and in the principal amounts set forth in the respective Incremental Term Loan Commitment Agreement
(each such repayment, as the same may be reduced as provided in Sections 3.02, 4.01 and 4.02(g), an
"Incremental Term Loan Scheduled Repayment”); provided that, if any Incremental
Term Loans are incurred which will be added to (and form part of) an existing Tranche of Term
Loans, the amount of the then remaining Scheduled Repayments of the respective Tranche shall be
proportionally increased (with the aggregate amount of increases to the then remaining Scheduled
Repayments to equal the aggregate principal amount of such new Incremental Term Loans then being
incurred).




          (c) Not later than the fifth Business Day after the U.S. 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 Sections 4.02 (g) and (h);
provided that Net Sale Proceeds from any Asset Sale (other than (x) Net Sale Proceeds from
any Contemplated Asset Sale and (y) the proceeds from any sale of Principal Properties (other than
one Principal Property) made in reliance on Section 9.02(xiv)) 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 U.S. 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




-40-









 







(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 shall be applied as a mandatory repayment as provided above (without giving effect to the
immediately preceding proviso).




          (d) On each date on or after the Amendment No. 3 Effective Date on which the U.S. 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 Sections 4.02(g) and (h).




          (e) Within 10 days following each date on or after the Amendment No. 3 Effective Date on which
the U.S. 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 in accordance with the
requirements of Sections 4.02(g) and (h); provided that so long as no Specified Default and
no Event of Default then exists, such proceeds shall not be required to be so applied on such date
to the extent that an Authorized Officer of the U.S. Borrower has delivered a certificate to the
Administrative Agent on or prior to such date stating that such proceeds shall be used (or
contractually committed to be used) within 360 days following the date of receipt of such proceeds
from such Recovery Event to replace or restore any properties or assets in respect of which such
proceeds were paid, 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 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).




          (f) On each Excess Cash Payment Date, an amount equal to the remainder (if positive) of (x)
the Applicable Prepayment Percentage of the Excess Cash Flow for the relevant Excess Cash Flow
Payment Period minus (y) the aggregate amount of principal repayments of Loans made as a
voluntary prepayment pursuant to Section 4.01 hereof with internally generated funds during the
relevant Excess Cash Flow Payment Period shall be applied as a mandatory repayment in accordance with the
requirements of Sections 4.02(g) and (h).




          (g) (I) Each amount required to be applied pursuant to Sections 4.02(c), (d), (e) and (f) in
accordance with this Section 4.02(g) shall be applied, subject to the succeeding clause (IV), to
repay the outstanding principal amount of Term Loans.




          (II) Each amount required to be applied to repay outstanding Term Loans pursuant to this
Section 4.02(g) shall, subject to the succeeding clause (IV) and the immediately succeeding
proviso, be applied pro rata to each Tranche of Term Loans (based upon the TL Repayment Percentages
of the various Tranches of
Term Loans and the then outstanding principal amounts of the respective
Tranches of




-41-









 







Term Loans); provided that (i) an amount equal to the Net Sale Proceeds from
any Asset Sale effected by the U.S. Borrower or any of its Domestic Subsidiaries and proceeds from
any Recovery Event with respect to the properties or assets of the U.S. Borrower or any of its
Domestic Subsidiaries and, in each case, required to be applied to the repayment of Term Loans
pursuant to clause (I) of this Section 4.02(g), shall be applied (x) first, to repay principal of
outstanding Tranche B-1 Term Loans and U.S. Borrower Incremental Term Loans, if any (on a pro rata
basis to each Tranche of U.S. Borrower Term Loans based on the then outstanding principal amount of
the Tranche B-1 Term Loans and each such Tranche of U.S. Borrower Incremental Term Loans) and (y)
second, after the repayment in full of all outstanding U.S. Borrower Term Loans, to repay principal
of outstanding Tranche C-1 Term Loans and Bermuda Borrower Incremental Term Loans (on a pro rata
basis to each such Tranche of Term Loans based upon the then outstanding principal amounts of such
Tranches of Term Loans) and (ii) an amount equal to the Net Sale Proceeds from any Asset Sale
effected by any Foreign Subsidiary of the U.S. Borrower and the proceeds from any Recovery Event
with respect to the properties or assets of any Foreign Subsidiary of the U.S. Borrower and, in
each case, required to be applied to the repayment of Term Loans pursuant to clause (I) of this
Section 4.02(g), shall be applied (x) first, to repay principal of outstanding Tranche C-1
Term Loans and Bermuda Borrower Incremental Term Loans (on a pro rata basis to each such Tranche of
Term Loans based upon the then outstanding principal amounts of such Tranches of Term Loans) and
(y) second, after the repayment in full of all outstanding Bermuda Borrower Term Loans, to
repay principal of outstanding Tranche B-1 Term Loans and U.S. Borrower Incremental Term Loans, if
any (on a pro rata basis to each Tranche of U.S. Borrower Term Loans based on the then outstanding
principal amount of such Tranches of U.S. Borrower Term Loans).




          (III) All repayments of outstanding Term Loans of a given Tranche pursuant to Section 4.02(c),
(d), (e) or (f) shall be applied to reduce the then remaining Scheduled Repayments of the
respective Tranche of Term Loans on a pro rata basis (based upon the then remaining principal
amounts of the Scheduled Repayments of such Tranche of Term Loans after giving effect to all prior
reductions thereto).




          (IV) Notwithstanding anything to the contrary in this Section 4.02, neither the U.S. Borrower
nor any of its Subsidiaries shall be obligated to apply any Net Sale Proceeds pursuant to this
Section 4.02(g) to the extent attributable to any Asset Sales of ABL Priority Collateral
(including, in the case of an Asset Sale consisting of the sale of all or substantially all of the
capital stock or equity interests in, any U.S. Credit Party, that portion of the proceeds
determined in good faith by the U.S. Borrower to be attributable to the ABL Priority Collateral
owned by such U.S. Credit Party at the time of the consummation of such Asset Sale) to the extent
that such Net Sale Proceeds are required to be and are applied to the repayment of ABL Loans (or to
the permanent reduction of any commitment under the ABL Credit Agreement) in accordance with the
terms of the ABL Credit Agreement.




          (h) With respect to each repayment of Loans required by this Section 4.02, the applicable
Borrower may (subject to the requirements of the preceding Section 4.02(g)) designate the Types of
Loans of the respective Tranche which are to be repaid and, in the case of Eurodollar Loans, the
specific Borrowing or Borrowings of the respective Tranche pursuant to which made, provided
that (i) in the case of repayments of Eurodollar Loans pursuant to this Section 4.02 on any day
other than the last day of an Interest Period applicable thereto, such repayments shall be
accompanied by payment by the applicable Borrower of all amounts owing in connection therewith
pursuant to Section 1.11 and (ii) each repayment of any Tranche of Loans made pursuant to a
Borrowing shall be applied pro rata among such Tranche of Loans. In the absence of a designation
by the applicable Borrower as described in the preceding sentence, the Administrative Agent shall,
subject to the above, make such designation in its sole discretion with a view, but no obligation,
to minimize breakage costs owing under Section 1.11(a)





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          (i) Notwithstanding anything to the contrary contained elsewhere in this Agreement, all
outstanding Loans shall be repaid in full on the Maturity Date for such Loans.




          (j) For purposes of clarity, it is understood and agreed that none of Sections 4.02(c) through
(f), inclusive, shall require that amounts received by any Foreign Subsidiary or Foreign
Subsidiaries be used to repay Obligations owed by any U.S. Credit Parties, but that such Sections
merely determine the amounts required to be applied by the Borrowers to the repayment of their
Obligations as more fully described in this Section 4.02.




          4.03 Method and Place of Payment. Except as otherwise specifically provided herein,
all payments under this Agreement shall be made to the Administrative Agent for the account of the
Lender or Lenders entitled thereto not later than 2:00 P.M. (New York time) on the date when due
and shall be made in Dollars in immediately available funds at the Payment Office of the
Administrative Agent. The Administrative Agent will thereafter cause to be distributed on the same
day (if payment was actually received by the Administrative Agent prior to 2:00 P.M. (New York
time)) like funds relating to payment of principal, interest or Fees ratably to the Lenders
entitled thereto. Any payments under this Agreement which are made later than 2:00 P.M. (New York
time) shall be deemed to have been made on the next succeeding Business Day. Whenever any payment
to be made hereunder 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.




          4.04 Net Payments.




          (a) All payments made by any Credit Party under any Credit Document (including, in the case of
a Borrower, in its capacity as a guarantor pursuant to Section 14) or under any Note will be made
without setoff, counterclaim or other defense. Except as provided in Section 4.04(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 subdivision 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 of a Lender pursuant to the
laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office
or applicable lending office of such Lender is located or any subdivision thereof or therein) and
all interest, penalties or similar liabilities with respect thereto (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 respective Borrower (and any other
Credit Party making the payment) 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, 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, then the applicable Borrower (and any other Credit Party making
the payment) shall be obligated to reimburse each Lender, upon the written request of such Lender,
for the net additional taxes (after taking into account available credits with respect to such
withholding taxes) imposed on or measured by the net income 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 applicable Bor-








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rower
(or Credit Party) will furnish to the Administrative Agent within 45 days after the date of the
payment of any Taxes due pursuant to applicable law certified copies of tax receipts evidencing
such payment by such Borrower (or the respective other Credit Party). The Borrowers jointly and
severally agree (and each Subsidiary Guarantor pursuant to its respective Subsidiary Guaranty, and
the incorporation by reference therein of the provisions of this Section 4.04, shall agree) 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) agrees to deliver to the U.S. Borrower and the Administrative Agent on or
prior to the Amendment No. 3 Effective Date, or in the case of a Lender that is an assignee or
transferee of an interest under this Agreement pursuant to Section 1.13 or 13.04 (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)
pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit D (any
such certificate, a “Section 4.04(b)(ii) Certificate”) and (y) two accurate and complete
original signed copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio
interest exemption) (or successor form) certifying to such Lender’s entitlement as of such date to
a complete exemption from United States withholding tax with respect to payments of interest to be
made under this Agreement and under any Note. In addition, each Lender agrees that from time to
time after the Amendment No. 3 Effective Date, when a lapse in time or change in circumstances
renders the previous certification obsolete or inaccurate in any material respect, it will deliver
to the U.S. 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
4.04(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 it
shall immediately notify the U.S. 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 4.04(b). Notwithstanding anything to the contrary
contained in Section 4.04(a), but subject to Section 13.04(b) and the immediately succeeding
sentence, (x) the U.S. Borrower shall be entitled, to the extent it is required to do so by law, to
deduct or withhold income or similar taxes imposed by the United States (or any political
subdivision or taxing
authority thereof or therein) from interest, fees or other amounts payable by the U.S.
Borrower hereunder for the account of any Lender which is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent
that such Lender has not provided to the U.S. Borrower U.S. Internal Revenue Service Forms that
establish a complete exemption from such deduction or withholding and (y) the U.S. Borrower shall
not be obligated pursuant
 to Section 4.04(a) hereof to gross-up payments to be made to a Lender in
respect of income or similar taxes imposed by the United States if (I) such Lender has not provided
to the U.S. Borrower the Internal Revenue Service Forms required to be provided to the U.S.
Borrower pursuant to this Section 4.04(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 4.04 and except as set forth in Section
13.04(b), the U.S. Borrower agrees to pay additional amounts and to indemnify each








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Lender in the
manner set forth in Section 4.04(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 (x) as a result of any changes after the Amendment No. 3
Effective Date (or, if later, the date such Lender became party to this Agreement) in any
applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation
thereof, relating to the deducting or withholding of income or similar taxes or (y) as a result of
the purchase of a participation as required by Section 1.14 following the occurrence of a Sharing
Event.




          Section 5. [Reserved].




          Section 6. Conditions Precedent to All Credit Events. The obligation of each Lender
to make Loans (including Loans made on the Amendment No. 3 Effective Date), the obligation of each
CL Lender to fund its Credit-Linked Deposit and the obligation of an Issuing Lender to issue any
Letter of Credit (including any Existing Letters of Credit deemed issued on the Restatement
Effective Date as contemplated by Section 2A.01(d)) and the obligation of a Bank Guaranty Issuer to
issue any Bank Guaranty (including Existing Bank Guaranties deemed issued on the Restatement
Effective Date as contemplated by Section 2B.01(d)) is subject, at the time of each such Credit
Event (except as hereinafter indicated), to the satisfaction of the following conditions:




          6.01 No Default; Representations and Warranties. At the time of each such Credit
Event and immediately after giving effect thereto (i) there shall exist no Default or Event of
Default and (ii) all representations and warranties contained herein or in any other Credit
Document 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 (except 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).




          6.02 Notice of Borrowing; Letter of Credit Request; etc.




          (a) Prior to the making of each Loan, the Administrative Agent shall have received a Notice of
Borrowing meeting the requirements of Section 1.03.




          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 2A.03(a).




          (b) Prior to the issuance of each Bank Guaranty (other than the Existing Bank Guaranties), the
Administrative Agent and the respective Bank Guaranty Issuer shall have received a Bank Guaranty
Request meeting the requirements of Section 2B.03(a).




          6.03 Incremental Term Loans. Prior to the incurrence of any Incremental Term Loans,
the applicable Incremental Term Loan Borrower shall have satisfied (or caused to be satisfied) all
of the applicable conditions set forth in Section 1.15.




          The occurrence of the Amendment No. 3 Effective Date and the acceptance of the benefits or
proceeds of each Credit Event shall constitute a representation and warranty by each Borrower to
each Agent and each of the Lenders that all the conditions specified in Section 6 (with respect to
Credit Events on and after the Amendment No. 3 Effective Date) and applicable to such Credit Event
(other than such conditions that are expressly subject to the satisfaction of the Agents and/or the
Required Lenders) exist as of that time.





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          Section 7. Representations and Warranties. In order to induce the Lenders to enter
into this Agreement, to make (and/or continue) the Loans, fund the Credit-Linked Deposits and issue
and/or participate in the Letters of Credit and Bank Guaranties as provided for herein, each
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, the
funding of the Credit-Linked Deposits and the issuance (or deemed issuance) of the Letters of
Credit and Bank Guaranties (with the occurrence of the Amendment No. 3 Effective Date and each
Credit Event on or after the Amendment No. 3 Effective Date being deemed to constitute a
representation and warranty that the matters specified in this Section 7 are true and correct in
all material respects on and as of the Amendment No. 3 Effective Date and on and as of the date of
each such Credit Event, unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material respects as of such
earlier date):




          7.01 Company Status. Each of the U.S. 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.




          7.02 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 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).




          7.03 No Violation. Neither the execution, delivery or performance by any Credit Party
or any Subsidiary thereof of the Credit 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 U.S. 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 U.S. 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 U.S. Borrower or any of its Subsidiaries.




          7.04 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




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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.




          7.05 Use of Proceeds; Margin Regulations.




          (a) The proceeds of the Tranche B-1 Term Loans and the Tranche C-1 Term Loans shall be
utilized by the U.S. Borrower and the Bermuda Borrower, respectively, on the Amendment No. 3
Effective Date solely to finance the Refinancing and to pay fees and expenses incurred in
connection therewith. All proceeds of Incremental Term Loans incurred by each Incremental Term
Loan Borrower shall be used for any purpose permitted under this Agreement, including, without
limitation, (i) to finance Permitted Acquisitions (and to pay the fees and expenses related
thereto) and to refinance any Indebtedness assumed as part of any such Permitted Acquisitions (and
to pay all accrued and unpaid interest thereon, any prepayment premium associated therewith and the
fees and expenses related thereto), (ii) to prepay outstanding Loans in accordance with the terms
of this Agreement and to prepay outstanding ABL Loans in accordance with the terms of the ABL
Credit Agreement and (iii) for the Incremental Term Loan Borrowers’ and their respective
Subsidiaries’ ongoing working capital requirements and general corporate purposes.




          (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 U.S. Borrower and
its Subsidiaries (for such purpose, using the initial purchase price paid by the U.S. 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.




          7.06 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 Credit Document or (ii) the
legality, validity, binding effect or enforceability of any Credit Document.




          7.07 Investment Company Act. Neither the U.S. 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.




          7.08 True and Complete Disclosure. All factual information (taken as a whole)
heretofore or contemporaneously furnished by or on behalf of the U.S. Borrower or any of its
Subsidiaries in
writing to any Agent or any Lender (including, without limitation, all information contained
in the Credit Documents) for purposes of or in connection with this Agreement, the other Credit
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 7.08, such factual information shall not
include the Projections or any projected financial information contained in any financial
projections delivered pursuant to Section 8.01(c).





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          7.09 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 each Borrower and
its Subsidiaries (on a consolidated basis) (x) the sum of the assets, at a fair valuation, of each
Borrower (on a stand-alone basis) and each 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 7.09(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 U.S. 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
U.S. Borrower and its Consolidated Subsidiaries for the Fiscal Years of the U.S. 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 U.S. Borrower
and its Consolidated Subsidiaries at the date of said financial statements and the results for the
respective periods covered thereby.




          (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 7.09(b) and as
otherwise permitted by Section 9.04, (i) there were as of the Amendment No. 3 Effective Date (and
after giving effect to any Loans made on such date), no liabilities or obligations with respect to
the U.S. 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 U.S. Borrower and its Subsidiaries taken as a
whole and (ii) no Borrower knows of any basis for the assertion against the U.S. 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 7.09(b) and are based on good faith estimates and assumptions made by the
management of the U.S. Borrower, and on the Amendment No. 3 Effective Date, the Borrowers believe
that the Projections are reasonable and attainable, it being recognized by the Lenders that such
projections of future events are not to be viewed as facts and that actual results during the
period or periods covered by any such Projections may differ from the projected results contained
therein. There is no fact known to any 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.




          7.10 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




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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), (iv) and (v) of Section
9.03 and clauses (y) and (z) of Section 9.03(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 Amendment No. 3 Effective Date or on or prior to the execution
and delivery thereof as contemplated by Section 8.10.




          7.11 Compliance with ERISA.




          (a) Schedule V 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;
(5) all required contributions with respect to a Plan and a Multiemployer Plan have been made; (6)
neither the U.S. Borrower nor any Subsidiary of the U.S. 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 U.S. Borrower or any Subsidiary of the U.S. Borrower or any ERISA Affiliate of
incurring a material liability to or on account of a Plan or a Multiem
ployer 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 U.S. 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 U.S.
Borrower, any Subsidiary of the U.S. 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




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of the Code other than any non compliance which would not result in a material liability to
the U.S. Borrower or any Subsidiary of the U.S. Borrower; (12) no lien imposed under the Code or
ERISA on the assets of the U.S. Borrower or any Subsidiary of the U.S. Borrower or any ERISA
Affiliate exists, is likely to arise on account of any Plan or any Multiemployer Plan; and (13) and
neither the U.S. Borrower nor any Subsidiary of the U.S. 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 U.S. 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 U.S. 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 U.S. 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 Sections 8.01(a) and (b).




          7.12 Subsidiaries. Schedule VII correctly sets forth, as of the Amendment No. 3
Effective Date, (i) the percentage ownership (direct and indirect) of the U.S. 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 other Equity Interests of each Subsidiary of the U.S.
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 X attached hereto, no
Subsidiary of the U.S. 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 VI, as
of the Amendment
No. 3 Effective Date, neither the U.S. 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 VII.




          7.13 Intellectual Property, etc. Each of the U.S. 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




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case may be, individually
or in the aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect.




          7.14 Compliance with Statutes; Agreements, etc. Each of the U.S. 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.




          7.15 Environmental Matters.




          (a) Except as would not reasonably be expected to have Material Adverse Effect, each of the
U.S. 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 U.S. 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 Material Adverse Effect, there are no pending or past or,
to the knowledge of any Senior Officer, threatened Environmental Claims against the U.S. Borrower
or any of its Subsidiaries or any Real Property owned, leased or operated by the U.S. Borrower or
any of its Subsidiaries (including any such claim arising out of the ownership, lease or operation
by the U.S. Borrower or any of its Subsidiaries of any Real Property formerly owned, leased or
operated by the U.S. Borrower or any of its Subsidiaries but no longer owned, leased or operated by
the U.S. Borrower or any of its Subsidiaries). Except as would not reasonably be expected to have
Material Adverse Effect, there are no facts, circumstances, conditions or occurrences on any Real
Property owned, leased or operated by the U.S. Borrower or any of its Subsidiaries (including, to
the knowledge of a Senior Officer, any Real Property formerly owned, leased or operated by the U.S.
Borrower or any of its Subsidiaries but no longer owned, leased or operated by the U.S. 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 U.S.
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 U.S. Borrower or any of its Subsidiaries under any applicable
Environmental Law.




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




          7.16 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




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U.S. Borrower or any of its Subsidiaries, and all material Leaseholds leased by the U.S.
Borrower or any of its Subsidiaries, in each case as of the Amendment No. 3 Effective Date, and the
nature of the interest therein, are correctly set forth in Schedule III (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 III correctly identifies such Real Property (or the
applicable portion thereof) as “Principal Property”). Each of the U.S. 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 III and in the financial statements referred to in Section 7.09(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 U.S. 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 U.S. Borrower or such Subsidiary thereon), free
and clear of all Liens, other than Permitted Liens.




          7.17 Labor Relations. Neither the U.S. 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 U.S. 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 U.S. 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 U.S. Borrower or any of its
Subsidiaries or, to the knowledge of any Senior Officer, threatened against the U.S. Borrower or
any of its Subsidiaries and (iii) no union representation question existing with respect to the
employees of the U.S. 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, and could not reasonably be expected
to have, a Material Adverse Effect.




          7.18 Tax Returns and Payments. The U.S. 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 U.S. Borrower and each of its Subsidiaries. The Returns accurately reflect in all material
respects all liability for taxes of the U.S. Borrower and each of its Subsidiaries as a whole for
the periods covered thereby. The U.S. 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 XVI 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 U.S.
Borrower and each of its Subsidiaries. Except as set forth on Schedule XVI hereto, as of the
Amendment No. 3 Effective Date, neither the U.S. 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 U.S. Borrower or any
of its Subsidiaries, or is aware of any circumstances that would cause the taxable years or other
taxable periods of the U.S. Borrower or any of its Subsidiaries not to be subject to the normally
applicable statute of limitations.




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




          7.20 Special Purpose Corporations. The Bermuda Partnership has no significant assets
(other than Equity Interests of its Subsidiaries and the immaterial assets used for the performance
of those activities permitted to be performed by it pursuant to Sections 9.01(b) and (c)) or
liabilities (other than under this Agreement and the other Credit Documents to which it is a party
and those liabilities permitted to be incurred by it pursuant to Sections 9.01(b) and (c));
provided that notwithstanding the foregoing, the Bermuda Partnership shall be permitted to
(i) provide treasury, accounting, logistic and other administrative support services to its
Affiliates on an arm’s length basis and hold and retain cash earned in connection with the
provision of such services and (ii) receive and hold additional cash and Cash Equivalents from its
Subsidiaries and/or Affiliates, so long as, in the case of this clause (ii), the same are promptly
(and in any event within one Business Day of receipt thereof) loaned, distributed and/or
contributed, subject to Section 9.01(c), to its Subsidiaries and/or Affiliates in accordance with
the requirements of Section 9.05 of this Agreement.




          7.21 Subordination. The subordination provisions contained in the Existing Senior
Notes Indentures are enforceable against (i) the U.S. Subsidiary Guarantors party thereto, and (ii)
the holders of the Existing Senior Notes. All Guaranteed Obligations (as defined in the U.S.
Subsidiaries Guaranty) of the U.S. Subsidiary Guarantors and all Obligations of the U.S. 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.




          Section 8. Affirmative Covenants. Each 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 and Bank Guaranties have been terminated, and
the Loans, Unpaid Drawings and Unreimbursed Payments, 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:




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





     (a) 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 U.S. Borrower, (i) (x) the consolidated balance sheet of the U.S. Borrower and its
Consolidated Subsidiaries as at the end of such quarterly accounting period and the related
consolidated statements of income and of cash flows for such quarterly accounting period and
for the elapsed portion of the Fiscal Year ended with the last day of such quarterly
accounting period, in each case setting forth comparative figures for the corresponding
quarterly accounting period in the prior Fiscal Year,
(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




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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 U.S. Borrower that they fairly present in all material respects in
accordance with U.S. GAAP the financial condition of the U.S. 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
U.S. Borrower has filed a Form 10-Q Report with the SEC, the furnishing of (I) the U.S.
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 subclauses (i) and
(ii) of this Section 8.01(a).




     (b) Annual Financial Statements. Within 3 Business Days following the 90th day
after the close of each Fiscal Year of the U.S. Borrower, (i) (x) the consolidated balance
sheet of the U.S. 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
(I) such statements fairly present in all material respects the financial condition of the
U.S. Borrower and its Consolidated Subsidiaries as of the dates indicated and the results of
their operations and changes in financial position for the periods indicated in conformity
with U.S. GAAP applied on a basis consistent with prior years and (II) in the course of its
regular audit of the business of the U.S. Borrower and its Consolidated Subsidiaries, which
audit was conducted in accordance with U.S. GAAP (and made without qualification or
expression of uncertainty, in each case as to going concern), no Default or Event of Default
pursuant to Section 9.12 has come to their attention or, if such a Default or an Event of
Default has come to their attention, a statement as to the nature thereof, and (iii)
management’s discussion and analysis of the important operational and financial developments
during such Fiscal Year; provided, however, that for any Fiscal Year for
which the U.S. Borrower has filed a Form 10-K Report with the SEC, the furnishing of (I) the
U.S. Borrower’s Form 10-K Report filed with the SEC for such Fiscal Year and (II) the
consolidated balance sheet of each Business Segment as at the end of such Fiscal Year and
the related
consolidated statement of income of such Business Segment for such Fiscal Year, shall
satisfy the requirements of subclause (i) and (iii) of this Section 8.01(b).




     (c) Financial Projections, etc. Not more than 90 days after the commencement
of each Fiscal Year of the U.S. 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,
taking into account any Significant Asset Sales intended to be consummated during such
Fiscal Year) prepared by the



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U.S. Borrower (i) for each of 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 U.S. Borrower
and its Consolidated Subsidiaries and setting forth, with appropriate discussion, the
principal assumptions upon which such financial projections are based.




     (d) Officer’s Certificates. At the time of the delivery of the financial
statements provided for in Sections 8.01(a) and (b) for each Fiscal Year ended on or after
the Amendment No. 3 Effective Date, a certificate of the Chief Financial Officer or other
Authorized Officer of the U.S. 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 8.01(a) or (b), set forth in reasonable detail (x) the
calculations required to establish whether the U.S. Borrower and its Subsidiaries were in
compliance with the provisions of Section 9.12 and (y) the calculation of the First Priority
Secured Leverage Ratio (provided that the U.S. Borrower shall not be required to
provide a calculation of the First Priority Secured Leverage Ratio after the CL Maturity
Date), in each case, as at the last day of the respective Fiscal Quarter or Fiscal Year of
the U.S. Borrower, as the case may be, (ii) if delivered with the financial statements
required by Section 8.01(b), set forth in reasonable detail (x) the amount of (and the
calculations required to establish the amount of) Excess Cash Flow for the applicable Excess
Cash Flow Payment Period and (y) the amount required to be paid pursuant to Section 4.02(f)
on the relevant Excess Cash Payment Date, and (iii) certify that there have been no changes
to Annexes A through G of the U.S. Security Agreement, Annexes A through G of the U.S.
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 8.01(d), or if there have been any such
changes, a list in reasonable detail of such changes (but, in each case with respect to this
clause (iii), only to the extent that such changes are required to be reported to the
Collateral Agent pursuant to the terms of such Security Documents) and whether the Borrowers
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.




     (e) 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 the U.S. Borrower or such
Subsidiary proposes to take with respect thereto, (ii) any litigation or proceeding pending
or threatened (x) against the U.S. 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 any
ABL Credit Document or any Existing Senior Notes Indenture and (iii) any other event, change
or circumstance which has had, or could reasonably be expected to have, a Material Adverse
Effect.




     (f) Environmental Matters. Within five Business Days after a Senior Officer
obtains knowledge of any of the following (but only to the extent that any of the following,
either individually or in the aggregate, has had, or could reasonably be expected to have, a
Material Adverse Effect), written notice of:




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



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     (ii) any condition or occurrence on any Real Property owned, leased or operated
by the U.S. Borrower or any of its Subsidiaries that (x) results in noncompliance by
the U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. Borrower’s response or
proposed response thereto. In addition, the U.S. 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.




     (g) Reports. Within 3 Business Days following transmission thereof, copies of
any filings and registrations with, and reports to, the SEC by the U.S. Borrower or any of
its Subsidiaries and copies of all financial statements, proxy statements, notices and
reports as the U.S. Borrower or any of its Subsidiaries shall send generally to the holders
of Indebtedness or (following the public issuance of Equity Interests of the U.S. Borrower
or any of its Subsidiaries) their Equity Interests in their capacity as such holders (to the
extent not theretofore delivered to the Lenders pursuant to this Agreement or publicly
available on the SEC’s website).




     (h) 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 U.S.
Borrower and within 3 Business Days after the 90th day following the close of each Fiscal
Year of the U.S. Borrower, (x) a list showing each Material Foreign Subsidiary of the U.S.
Borrower established, created or acquired during the respective Fiscal Quarter or Fiscal
Year which has not theretofore become party to the Foreign Subsidiaries Guaranty or any
Security Document, and (y) a list showing each Subsidiary of the U.S. Borrower established,
created or acquired during the respective Fiscal Quarter or Fiscal Year (and specifying
whether such Subsidiary is a Material Foreign Subsidiary), 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, showing any change in the direct owner of the Equity Interests
in such Subsidiary and describing such Equity Interests in reasonable detail, and
certifying that each such Subsidiary, and each Credit Party which owns any Equity Interests
therein as a result of any such changes, has taken all actions, if any, required pursuant to
Section 8.11 and the relevant Security Documents.




     (i) Annual Meetings with Lenders. At the request of the Administrative Agent,
the U.S. Borrower shall, within 120 days after the close of each Fiscal Year of the U.S.
Borrower, hold a meeting (which may be by conference call or teleconference), at a time and
place selected by the U.S. Borrower and reasonably acceptable to the Administrative Agent,
with all of the



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Lenders that choose to participate, to review the financial results of the
previous Fiscal Year and the financial condition of the U.S. Borrower and its Subsidiaries
and the budgets presented for the current Fiscal Year of the U.S. Borrower and its
Subsidiaries.




     (j) Notice of Mandatory Repayments. On or prior to the date of any mandatory
repayment of outstanding Term Loans pursuant to Sections 4.02(c) through (f), inclusive, the
U.S. Borrower shall provide written notice of the amount of the respective repayment of
outstanding Term Loans and the calculations therefor (in reasonable detail).




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




     (l) Other Information. From time to time, such other information or documents
(financial or otherwise) with respect to the U.S. Borrower or its Subsidiaries as the
Administrative Agent or any Lender may reasonably request; provided that the tax
opinion delivered by Deloitte & Touche LLP referenced in Section 8.01(n) of the Original
Credit Agreement shall only be made available for review by any Lender requesting same at
the headquarters of the U.S. Borrower.



          8.02 Books, Records and Inspections. The U.S. 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 U.S. Borrower will, and will cause each of its Subsidiaries to,
permit officers and designated representatives of any 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
U.S. Borrower or such Subsidiary, any of the properties of the U.S. Borrower or such Subsidiary,
and to examine the books of account of the U.S. Borrower or such Subsidiary and discuss the
affairs, finances and accounts of the U.S. 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 such Agent or such
Lender may reasonably request.




          8.03 Insurance.




          (a) The U.S. 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 U.S. Borrower will, and will cause each of its Subsidiaries to, at all times keep the
Collateral of the U.S. 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 U.S. 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’ compensa-




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tion 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 U.S. Borrower or any of its Subsidiaries shall fail to comply with this Section
8.03, 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 U.S. Borrower, to procure such insurance, and
the Borrowers agree jointly and severally to reimburse the Administrative Agent or the Collateral
Agent, as the case may be, for all costs and expenses of procuring such insurance.




          8.04 Payment of Taxes. The U.S. 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 U.S. Borrower or any of its Subsidiaries not otherwise permitted under Section
9.03(i); provided that neither the U.S. Borrower nor any of its Subsidiaries shall be
required to pay any such tax, assessment, charge, levy or claim which is being contested in good
faith and by proper proceedings if it has maintained adequate reserves with respect thereto in
accordance with U.S. GAAP.




          8.05 Existence; Franchises. The U.S. 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 8.05 shall prevent (i) sales of assets and other transactions by the U.S. Borrower or any
of its Subsidiaries in accordance with Section 9.02, (ii) the withdrawal by the U.S. 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 any Excluded Domestic Subsidiary or any Excluded Foreign Subsidiary.




          8.06 Compliance with Statutes; etc. The U.S. 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.




          8.07 Compliance with Environmental Laws. (i) The U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. Borrower or any of its




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Subsidiaries, or any tenant or
occupant of any Real Property or vessel owned, leased or operated by the U.S. 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 U.S. 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.




          8.08 ERISA. As soon as possible and, in any event, within twenty (20) Business Days
after the U.S. Borrower, any Subsidiary of the U.S. Borrower or any ERISA Affiliate knows or has
reason to know of the occurrence of any of the following, the U.S. 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 U.S. Borrower setting forth, to the extent known, and
in reasonable detail, such occurrence and the action, if any, that the U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. Borrower,
any Subsidiary of the U.S. 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 U.S.
Borrower or any Subsidiary of the U.S. 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 Restatement Effective
Date pursuant to any such plan or plans by an amount that would be material to the U.S. Borrower or
any Subsidiary of the U.S. 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




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the request of the Administrative
Agent, the U.S. 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 U.S. 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 U.S. Borrower, any Subsidiary of the
U.S. 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
U.S. 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.




          8.09 Good Repair. The U.S. 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.




          8.10 End of Fiscal Years; Fiscal Quarters. The U.S. 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 U.S. Borrower (other than the Bermuda Borrower and the Bermuda
Partnership) shall not be required to maintain the fiscal year and fiscal quarter ends described
above if it is not practicable for such Foreign Subsidiary to maintain same as a result of foreign
statutes, rules or law applicable to such Foreign Subsidiary.




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




          (a) Each Borrower will, and will cause its Subsidiaries which are Credit Parties 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 $5,000,000 and (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 Mortgages or Foreign Security Agreements in effect on
the Amendment No. 3 Effective Date, as appropriate (each such Real Property referred to in this
clause (ii), an “Additional Mortgaged Property”); provided, however, that
if the aggregate initial book value of all Second-Tier Material Real Properties acquired by such
Persons after the Amendment No. 3 Effective Date which are not then covered by Mortgages or Foreign
Security Agreements, as appropriate, equals or exceeds $20,000,000, each Credit Party 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 or Foreign Security
Agreements, as appropriate (and not just those required to re-




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duce 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. Notwithstanding any “after-acquired property”
covenant contained in any Foreign Security Document requiring the grant of a mortgage in
“after-acquired” Real Property of any Foreign Credit Party in favor of the Collateral Agent, no
Foreign Credit Party shall be required to grant to the Collateral Agent an Additional Mortgage in
any Real Property of such Foreign Credit Party acquired after the Initial Borrowing Date as
otherwise required by the respective Foreign Security Document unless and until the grant of such
Additional Mortgage would otherwise be required pursuant to the terms of this Section 8.11(a).




          (b) The U.S. Borrower will, and will cause each other Credit Party 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 8.11. Furthermore, the U.S.
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 8.11 has been complied with.




          (c) Subject to the provisions of the following clauses (e) and (f), if (w) at any time any
Domestic Subsidiary of the U.S. Borrower (other than an Excluded JV) is created, established or
acquired, the U.S. Borrower shall cause such Subsidiary to execute and deliver counterparts of the
U.S. Subsidiaries Guaranty, the Intercompany Subordination Agreement, the Intercreditor Agreement,
the U.S. Security Agreement and the U.S. Pledge Agreement and comply with the provisions of Section
8.11(a) and the provisions of the U.S. Security Agreement and U.S. Pledge Agreement, (x) at any
time any Subsidiary of the U.S. Borrower (other than an Excluded JV) organized under the laws of
any Qualified Non-U.S. Jurisdiction is created, established or acquired, such Subsidiary shall be
required to execute and deliver counterparts of the Foreign Subsidiaries Guaranty, the Intercompany
Subordination Agreement and such Security Documents as may be specified by the Administrative Agent
(which shall, to the extent applicable, be consistent with the Security Documents entered into by
other Foreign Credit Parties organized under the laws of such Qualified Non-U.S. Jurisdiction), (y)
at any time any Subsidiary of the U.S. Borrower (other than an Excluded JV) organized under the
laws of any Non-Qualified Jurisdiction in which a Foreign Subsidiary Guarantor under this Agreement
was organized on the Amendment No. 3 Effective Date is created, established or acquired, such
Subsidiary shall be required to execute and deliver counterparts of the Foreign Subsidiaries
Guaranty and, in each case, unless the Administrative Agent otherwise agrees based on advice of
local counsel, the Intercompany Subordination Agreement and such Security Documents as may be
specified by the Administrative Agent (which shall, to the extent applicable, be consistent with
the Security Documents entered into by other Foreign Credit Parties organized under the laws of
such Non-Qualified Jurisdiction) and (z) if at any time after the Amendment No. 3 Effective Date
any jurisdiction is added to the list of Qualified Jurisdictions in accordance with the definition
thereof contained herein, then at the time of such designation each Wholly-Owned Subsidiary of the
U.S. Borrower organized under the laws of such Qualified Jurisdiction specified by the U.S.
Borrower shall be required to become a Foreign Subsidiary Guarantor and take all actions specified
in the preceding clause (x).




          (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 any other documents 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) that is owned by a U.S. 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 U.S. Credit Party’s ob-




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ligations (x) as a Borrower under the Credit
Agreement (in the case of the U.S. Borrower) or (y) under its Guaranty in respect of the
Obligations of the U.S. Borrower (in the case of the other U.S. Subsidiary Guarantors).




          (e) Each action required above by Section 8.11(a), (b), (c) or (d) shall be completed no later
than 90 days (or, in the case of actions relating to assets located outside the United States, such
greater number of days as the Administrative Agent shall agree to in its sole and absolute
discretion in any given case) after such action is required pursuant to such clause,
provided that in the case of a newly-formed Subsidiary organized in (i) a Qualified
Non-U.S. Jurisdiction or (ii) a Non-Qualified Jurisdiction in which an existing Foreign Subsidiary
Guarantor is organized, such action shall not be required to be taken until the gross book value of
its assets (determined as of the last day of the calendar month then last ended) is greater than
$10,000,000, unless the aggregate gross book value of all newly-formed Subsidiaries which have not
executed Security Documents in reliance on this proviso (determined as of the last day of the
calendar month then last ended) exceeds $20,000,000, at which time all such excluded Subsidiaries
(and not just those Subsidiaries required to reduce the aggregate gross book value of such excluded
Subsidiaries to below $20,000,000) shall execute the required Credit Documents.




          (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 a
Permitted Acquisition, which is subject to Permitted Acquired Debt which at such time remains in
existence as permitted by Section 9.04(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 8.11, then the time for taking the respective actions (to the
extent prohibited by the terms of the respective Permitted Acquired Debt) shall be extended until
10 Business Days after the earlier of (i) the date of repayment of such Permitted Acquired Debt and
(ii) the first date on which the taking of such actions would not violate the terms of the
respective issue of Permitted Acquired Debt. Furthermore, to the extent any Subsidiary which is
not a Wholly-Owned Subsidiary is acquired pursuant to a Permitted Acquisition (in accordance with
the limitations contained in the definition thereof), then for so long as such Subsidiary is not a
Wholly-Owned Subsidiary, to the extent the U.S. 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 any Credit Documents such Subsidiary would otherwise be required to execute in accordance
with this Section 8.11, such Subsidiary shall not be required to take such actions as would
otherwise be required above.




          (g) Within 30 days following the request of the Administrative Agent, the Collateral Agent or
the Required Lenders, the Borrowers shall cause each Fee Capped Foreign Subsidiary Guarantor (to
the maximum extent permitted by applicable law) to (x) enter into such amendments and/or
modifications to the relevant Credit Documents to which such Fee Capped Foreign Subsidiary
Guarantor is a party to cause the guaranty amount or the secured obligations thereunder, as
applicable, to equal 110% of the Fair Market Value of the Property owned or held by such Fee Capped
Foreign Subsidiary Guarantor and (y) pay all registration, notarial and other fees, all taxes and
all other amounts as may be required in connection with the increase in amount of the guaranty and/or the secured obligations under such
Credit Documents.




          (h) In the event that the Administrative Agent or the Required Lenders at any time after the
Amendment No. 3 Effective 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, rule, regulation, guideline or order (any such appraisal, a “Required
Appraisal”) are or were required





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to be obtained, or should be obtained, in connection with any
U.S. Mortgaged Property or U.S. 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 U.S.
Borrower shall cause such Required Appraisal to be delivered, at the expense of the U.S. Borrower,
to the Administrative Agent, which Required Appraisal, and the respective appraiser, shall be
satisfactory to the Administrative Agent.




          (i) Notwithstanding any “after-acquired property” covenant contained in any Foreign Security
Document requiring the grant of security interests in Property of any Foreign Credit Party in favor
of the Collateral Agent (but subject to Section 8.11(a), no Foreign Credit Party shall be required
to grant the Collateral Agent security interests in Property of such Foreign Credit Party acquired
after the Initial Borrowing Date which is not a vessel and does not constitute Real Property (all
such Property, “After-Acquired Foreign Personal Property”) and which is not covered already
expressly by the respective Foreign Security Document as otherwise required by such Foreign
Security Document if the gross book value of all After-Acquired Foreign Personal Property of such
Foreign Credit Party (determined as of the last day of the calendar month then last ended) excluded
from the pledge requirements pursuant to this clause (i) is less than $10,000,000, unless (and
until) the aggregate gross book value of all After-Acquired Foreign Personal Property of all
Foreign Credit Parties excluded from the pledge requirements pursuant to this clause (i)
(determined as of the last day of the calendar month then last ended) exceeds $20,000,000, at which
time the Foreign Credit Parties shall take all actions required to be taken pursuant to the
respective Foreign Security Documents to grant the Collateral Agent a security interest in all
After-Acquired Foreign Personal Property as is required to cause the aggregate gross book value
(determined as described above) of all After-Acquired Foreign Personal Property of all Foreign
Credit Parties not then subject to a security interest in favor of the Collateral Agent pursuant to
the relevant Foreign Security Documents not to exceed $10,000,000.




          (j) Notwithstanding anything to the contrary contained above in this Section 8.11 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 8.11.




          (k) 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 the Foreign Security Documents, such amendments duly executed and
acknowledged by the applicable Credit Parties as may be requested by the Administrative
Agent in order to preserve and protect the validity of the Liens granted to the Collateral
Agent pursuant to such Foreign Security Documents;




     (ii) with respect to each Mortgage in favor of the Collateral Agent with respect to any
U.S. 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;




     (iii) with respect to each Mortgage Amendment (other than with respect to the Mortgage
Amendment for the U.S. 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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     (iv) 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;




     (v) with respect to each U.S. 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




     (vi) 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.



          8.12 Use of Proceeds. The U.S. Borrower will, and will cause each of its Subsidiaries
to, use the proceeds of the Loans for the purposes specified in Section 7.05. Neither Borrower
will, nor will it permit any of its Subsidiaries to, use any of the proceeds of the Loans, any
Letter of Credit or any Bank Guaranty 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.




          8.13 Ownership of Subsidiaries.




          (a) Notwithstanding anything to the contrary contained in this Agreement, (x) the U.S.
Borrower shall at all times own directly or indirectly 100% of the capital stock of the Bermuda
Borrower and (y) subject to the proviso to the first sentence of Section 8.13(b), the U.S. 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 U.S. Borrower or any of its Subsidiaries) of each Domestic
Subsidiary of the U.S. Borrower.




          (b) The Borrowers shall take all actions so that, at all times from and after the Amendment
No. 3 Effective Date, all the assets of the U.S. 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 U.S. Borrower and its Subsidiaries conducted in the United
States, are, in each case, owned or conducted, as the case may be, by the U.S. Borrower and one or
more Domestic Subsidiaries which are not direct or indirect Subsidiaries of any Foreign Subsidiary
of the U.S. Borrower, provided that if a Foreign Subsidiary (not itself created or
established in contemplation of a Permitted Acquisition) is acquired pursuant to a Permitted
Acquisition which Foreign Subsidiary has (either directly or through one or more Domestic
Subsidiaries) assets or operations in the United States, the U.S. 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 U.S. Obligors,
provided, further, that the respective transfer shall not be required to be made if
the U.S. Borrower in good faith determines that such transfer would give rise to adverse tax
consequences to the U.S. Borrower and its Subsidiaries or would give rise to any material breach or
violation of law or contract (in which case, the U.S. 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 foreign entity so acquired, to the extent located in the United
States, are made within one or more Qualified U.S. Obligors).




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          (c) The Borrowers shall take all actions so that all Foreign Subsidiaries that are not
Qualified Non-U.S. Obligors are directly or indirectly owned by one or more Qualified Non-U.S.
Obligors (or, in the case of the Bermuda Partnership, is owned by the Bermuda Partnership
Partners).




          (d) For the avoidance of doubt, it is understood and agreed that the foregoing provisions of
this Section 8.13 shall not prohibit the acquisition of, or Investments in, Non-Wholly-Owned
Subsidiaries, provided that the Equity Interest owned by the U.S. Borrower or any of its
Subsidiaries in such Non-Wholly-Owned Subsidiaries, to the extent organized under the laws of any
Qualified Jurisdiction, shall be subject to the requirements of the preceding clauses (a), (b) and
(c) of this Section 8.13.




          8.14 Maintenance of Company Separateness. The U.S. 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 U.S. 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 either Borrower, any other Credit Party or any Non-Guarantor
Subsidiaries being ignored, or in the assets and liabilities of the U.S. 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.




          8.15 Performance of Obligations. The U.S. 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.




          8.16 Margin Stock. The U.S. Borrower shall take all actions so that at all times the
aggregate value of all Margin Stock (other than treasury stock) owned by the U.S. Borrower and its
Subsidiaries (for such purpose, using the initial purchase price paid by the U.S. 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 U.S. 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 U.S. 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 8.16, if at any time the
aggregate value of all Margin Stock (other than treasury stock) owned by the U.S. Borrower and its
Subsidiaries (determined as provided in the first sentence of this Section 8.16) 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 U.S. Borrower shall execute and deliver to the Lenders
appropriate com
pleted forms (including, without limitation, Forms G-3 and U-1, as appropriate) establishing
compliance with the Margin Regulations.




          8.17 Foreign Security Document Amendments. (x) If any additional Foreign Security
Document is entered into by the U.S. Borrower or any of its Subsidiaries after the Amendment No. 3
Effective Date or (y) any change in applicable law governing any Foreign Security Document relevant
to the scope of the Obligations covered by such Foreign Security Document or the Secured Creditors
entitled to the benefits of such Foreign Security Document occurs after the Amendment No. 3
Effective Date and, in any such case, the Collateral Agent (based on the advice of local counsel)
has determined that amendments to the respective Foreign Security Document are required to maintain
a valid and enforceable first




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priority lien on the Collateral covered by such Foreign Security
Document in favor of the Collateral Agent for the benefit of all of the Secured Creditors securing
all of the relevant Obligations (i.e., all Tranche C-1 Term Loans, all Bermuda Borrower
Letters of Credit and Unpaid Drawings thereunder, all Bermuda Borrower Bank Guaranties and
Unreimbursed Payments thereunder, and, after a given Incremental Term Loan Borrowing Date, all
related incremental Obligations resulting from the provision of the respective Incremental Term
Loan Commitments to the Bermuda Borrower), then, within 90 days following the request of the
Collateral Agent or the Administrative Agent, the U.S. Borrower shall duly authorize, execute and
deliver to the Collateral Agent, or cause to be duly authorized, executed and delivered to the
Collateral Agent, a fully executed counterpart of an amendment to such Foreign Security Document,
which amendment shall (i) be in full force and effect (and, if applicable, properly recorded) no
later than the date of required execution and delivery of such amendment as provided above and (ii)
otherwise be in form and substance satisfactory to the Administrative Agent.




          Section 9. Negative Covenants. The Borrowers hereby covenant and agree that as of the
Amendment No. 3 Effective Date and thereafter for so long as this Agreement is in effect and until
all Commitments have terminated, no Letters of Credit or Bank Guaranties 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:




          9.01 Changes in Business; etc.




          (a) The U.S. Borrower and its Subsidiaries will not engage in any business other than a
Permitted Business.




          (b) The Bermuda Partnership will not engage in any business and will not own any significant
assets or any cash or Cash Equivalents (other than its ownership of Equity Interests of Qualified
Non-U.S. Obligors) or have any material liabilities (other than those liabilities for which it is
responsible under the Credit Documents to which it is a party), provided that the Bermuda
Partnership may (I) provide treasury, accounting, logistic and other administrative support
services to its Affiliates on an arms’ length basis and hold and retain cash earned in connection
with the provision of such services, (II) receive and hold additional cash and Cash Equivalents
from its Subsidiaries and/or its Affiliates, so long as the same are promptly loaned, distributed
and/or contributed to its Subsidiaries and/or Affiliates in a transaction otherwise permitted by
this Agreement and (III) engage in those activities that (i) are incidental to (x) the maintenance
of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters
in connection with any of the foregoing activities and (z) the entering into, and performing its
obligations under, the Credit Documents to which it is a party and (ii) are otherwise expressly
permitted by this Agreement and the other Credit Documents.




          (c) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement:





     (i) the Bermuda Partnership Partners shall not collectively own or hold (x) Property
(exclusive of Property leased or operated but not owned) with a Fair Market Value in excess
of $30,000,000 at any time or (y) cash or Cash Equivalents in an aggregate in excess of
$10,000,000; provided that (v) all assets owned by the Bermuda Partnership Partners
on the Amendment No. 3 Effective Date (which assets shall have a net book value on the
Amendment No. 3 Effective Date not to exceed $25,000,000) shall be excluded for purposes of
such determination, (w) any cash and Cash Equivalents loaned and/or contributed to such
Persons by Affiliates of such Persons shall be excluded for purposes of such determination,
so long as the same are promptly loaned and/or distributed to other Affiliates of such
Persons in a transaction otherwise permitted by this Agreement, (x) any inventory owned by
the Bermuda Partnership Partners shall



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be excluded for purposes of such determination, (y)
any Equity Interests in the Bermuda Partnership which are held by the Bermuda Partnership
Partners shall be excluded for purposes of such determination and (z) any intercompany
receivable owed to a Bermuda Partnership Partner by Dole Settlement Company shall be
excluded for purposes of such determination so long as such intercompany receivable is at
all times subject to the subordination provisions contained in the Intercompany
Subordination Agreement;




     (ii) no Bermuda Partnership Partner shall merge, consolidate with or be liquidated or
dissolved into any other Person, provided, however, that any Bermuda
Partnership Partner may merge or consolidate with or into any other Wholly-Owned Domestic
Subsidiary of the U.S. Borrower formed for the sole purpose of reincorporating such Bermuda
Partnership Partner in a different jurisdiction (and, thereafter, the surviving entity of
such merger or consolidation shall constitute a “Bermuda Partnership Partner” for all
purposes of this Agreement and the other Credit Documents (subject to and bound by all terms
and covenants herein and therein applicable to a “Bermuda Partnership Partner”));




     (iii) no later than one Business Day following the date upon which any Bermuda
Partnership Partner receives or generates an Account (as defined in the U.S. Security
Agreement), such Account shall be sold on a non-recourse basis to Dole Settlement Company
(at a discount of 2%) in exchange for a note payable (which shall at all times be subject to
the subordination provisions contained in the Intercompany Subordination Agreement) and/or
the assumption of a payable or payables owing by such Bermuda Partnership Partner to its
relevant Subsidiary which sells fruit, inventory or other Property, or provides shipping
services, to such Bermuda Partnership Partner (which assumed liabilities shall also be
subject to the subordination provisions contained in the Intercompany Subordination
Agreement); and




     (iv) upon the occurrence and during the continuance of any Specified Default or any
Event of Default under Section 10.01 or 10.05, unless otherwise directed by the
Administrative Agent or the Required Lenders, (x) neither the U.S. Borrower nor any of its
Subsidiaries shall sell fruit, inventory or other Property to, or contract to perform
shipping services for, any Bermuda Partnership Partner, (y) the U.S. Borrower and its
Subsidiaries shall sell to Dole Settlement Company fruit, inventory and other Property
formerly sold to, and shall contract with Dole Settlement Company to sell shipping services
formerly contracted with, any Bermuda Partnership Partner and (z) no Bermuda Partnership
Partner shall be permitted to receive any Dividends or the proceeds of any intercompany
loans or advances from any of its Affiliates.



          9.02 Consolidation; Merger and Sale of Assets. The U.S. 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 9.05 and Dividends permitted by Section 9.06;




     (ii) the U.S. 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 U.S. 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 U.S. Borrower
or the applicable Subsidi-



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ary 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 U.S. 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 U.S. 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
4.02(b) and (z) the aggregate amount of the proceeds received from all assets sold pursuant
to this clause (iii) shall not exceed $150,000,000 in any Fiscal Year of the U.S. Borrower;




     (iv) each of the U.S. 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;




     (v) each of the U.S. 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 U.S. Borrower or any of its Subsidiaries;




     (vi) transfers of assets (x) to any U.S. Credit Party, (y) among the Foreign Credit
Parties; provided that in the case of any transfer of Collateral with a Fair Market
Value in excess of $5,000,000, the U.S. Borrower shall notify the Administrative Agent
thereof and 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 therein,
and (z) by any Subsidiary of the U.S. Borrower that is not a Credit Party to the U.S.
Borrower or any of its Subsidiaries;




     (vii) (x) any Subsidiary of the U.S. Borrower (other than the Bermuda Borrower) may be
merged, consolidated or liquidated with or into the U.S. Borrower (so long as the U.S.
Borrower is the surviving corporation of such merger, consolidation or liquidation) or any
U.S. Subsidiary Guarantor (so long as, except in the case of a merger, consolidation or
liquidation into the U.S. Borrower, a U.S. Subsidiary Guarantor is the surviving corporation
of such merger consolidation or liquidation), (y) any Foreign Subsidiary of the U.S.
Borrower may be merged, consolidated or liquidated with or into the Bermuda Borrower (so
long as the Bermuda Borrower is the surviving entity in such merger, consolidation or
liquidation) or any Foreign Subsidiary Guarantor (so long as, except in the case of a
merger, consolidation or liquidation into the Bermuda Borrower, a Foreign Subsidiary Guarantor is the surviving corporation of such merger
consolidation or liquidation) and (z) any Subsidiary of the U.S. Borrower that is not a
Credit Party may be merged, consolidated or liquidated with or into any other Subsidiary of
the U.S. Borrower that is not a Credit Party; provided, in the case of any merger,
consolidation or liquidation pursuant to this clause (vii) involving a Credit Party, the
U.S. 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;




     (viii) so long as no Event of Default has occurred and is continuing, the U.S. Borrower
and its Subsidiaries may transfer inventory in a non-cash or cash transfer to Subsidiaries
of the U.S. Borrower in the ordinary course of its business;




     (ix) 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



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(other than inventory, cash, Cash Equivalents and Equity Interests in any
Credit Party) to other Subsidiaries of the U.S. 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;




     (x) the U.S. 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;




     (xi) each of the U.S. Borrower and its Subsidiaries may sell or liquidate Cash
Equivalents;




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




     (xiii) each of the U.S. Borrower and its Subsidiaries may effect Contemplated Asset
Sales, so long as (i) no Event of Default then exists or would exist immediately after
giving effect thereto, (ii) each such sale is an arms’-length transaction and the U.S.
Borrower or the respective Subsidiary receives at least Fair Market Value, (iii) either (x)
at least 75% of the total consideration received by the U.S. 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 same may be issued
in accordance with the definition thereof) and (2) at least 50% of the total consideration
received by the U.S. 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 4.02(c); and




     (xiv) the U.S. 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 U.S. 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
4.02(c).


To the extent any Collateral is sold or otherwise disposed of as permitted by this Section 9.02,
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.




          9.03 Liens. The U.S. 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 U.S. 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 U.S. 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 9.03 shall not prevent the creation,
incurrence, assumption or existence of the following (Liens described below are herein referred to
as “Permitted Liens”):




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     (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 U.S. 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,
(y) Liens (but only on Collateral of the U.S. Credit Parties) created by or pursuant to the
ABL Credit Agreement and the ABL Security Documents, securing Indebtedness incurred pursuant
to clause (xiii) of Section 9.04(b) and related cash management obligations, and (z) Liens
(but only on the Collateral of the U.S. 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 in
the last day of the most recent Test Period for which financial statements are available
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 IX and any 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 U.S. 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 10.09, (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 U.S. Borrower and its Subsidiaries in connection
therewith) plus (2) in the case of Properties of Subsidiaries of the U.S. 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 U.S.
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 U.S. Borrower and its Subsidiaries in connection with
workers’ compensation, unemployment insurance and other types of social security, (y) to
secure



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the performance by the U.S. Borrower and its Subsidiaries of tenders, statutory
obligations (other than excise taxes not described in Section 9.03(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 9.03(v) above) or (z) to secure the performance by the U.S. 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
U.S. 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 U.S. Borrower or any of its
Subsidiaries;




     (ix) Liens of a lessor arising under any operating lease entered into by the U.S.
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 U.S. Borrower or any of its Subsidiaries subject to
Capitalized Lease Obligations permitted pursuant to Section 9.04(b)(iv), provided
that the Lien encumbering the asset giving rise to the Capitalized Lease Obligation does not
encumber any other asset of the U.S. 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 U.S. 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 9.04(b)(iv);




     (xii) Liens on property or assets acquired pursuant to a Permitted Acquisition, or on
property or assets of a Subsidiary of the U.S. Borrower in existence at the time such
Subsidiary is acquired pursuant to a Permitted Acquisition, provided that (i) any
Indebtedness that is secured by such Liens is permitted to exist under Section 9.04(b)(vi)
and (ii) such Liens are not incurred in connection with, or in contemplation or anticipation
of, such Permitted Acquisition and do not attach to any other asset of the U.S. Borrower or
any of its Subsidiaries;




     (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;



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     (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
9.04(b);




     (xvii) Liens on the assets of a Foreign Subsidiary (other than the Bermuda Partnership)
which is not a Foreign Credit Party securing Indebtedness incurred by such Foreign
Subsidiary in accordance with the terms of Section 9.04(b)(vii);




     (xviii) Liens over promissory notes evidencing grower loans pledged in favor of
financial institutions securing Indebtedness permitted to be incurred pursuant to clause (x)
of Section 9.04(b)(xv); and




     (xix) other Liens of the U.S. Borrower or any Subsidiary of the U.S. Borrower that (x)
were not incurred in connection with borrowed money, (y) do not materially impair the use of
such Property in the operation of the business of the U.S. Borrower or such Subsidiary 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 9.03 by the U.S. Borrower or any of its
Subsidiaries, the Administrative Agent and the Collateral Agent shall be authorized, at the request
of either 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).




          9.04 Indebtedness.




          (a) The U.S. 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 U.S. Borrower and each Domestic Subsidiary of the U.S.
Borrower which is a U.S. Credit Party may incur Qualified Indebtedness so long as, on a Pro Forma
Basis: (i) the Total Leverage Ratio at such time does not exceed the maximum Total Leverage Ratio
that was permitted pursuant to Section 9.12(a) as of the most recently ended Test Period; (ii) the
Consolidated Interest Coverage Ratio for the most recently ended Calculation Period is at least
equal to the minimum Consolidated Interest Coverage Ratio that was required pursuant to Section
9.12(b) for the most recently ended Calculation Period; and (iii) no Default or Event of Default
then exists or would exist immediately after the respective incurrence.




          (b) The foregoing limitations in Section 9.04(a) will not apply to the following:





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



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     (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 9.04(a);




     (iii) Indebtedness under Interest Rate Protection Agreements, Other Hedging Agreements
and Commodity Agreements entered into to protect the U.S. 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 U.S. 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 9.04(b)(iv) shall not exceed
$50,000,000 at any time;




     (v) intercompany Indebtedness of the U.S. Borrower and its Subsidiaries to the extent
permitted by Section 9.05;




     (vi) Indebtedness of a Subsidiary of the U.S. Borrower acquired pursuant to a Permitted
Acquisition (or Indebtedness assumed at the time of a Permitted Acquisition of an asset
securing such Indebtedness) (such Indebtedness, “Permitted Acquired Debt”) and any
Permitted Refinancing Indebtedness in respect thereof, provided that (x) any such
Permitted Acquired Debt was not incurred in connection with, or in anticipation or
contemplation of, such Permitted Acquisition and (y) the aggregate principal amount of all
Indebtedness outstanding pursuant to this Section 9.04(b)(vi) at any time shall not exceed
$50,000,000;




     (vii) Indebtedness of Foreign Subsidiaries of the U.S. Borrower (other than the Bermuda
Partnership), provided that the aggregate principal amount of all such Indebtedness
outstanding at any time under this Section 9.04(b)(vii) shall not exceed $75,000,000;




     (viii) additional unsecured Indebtedness of the U.S. Borrower consisting of unsecured
guarantees of (x) obligations (which guaranteed obligations do not themselves constitute
Indebtedness) of one or more Subsidiaries of the U.S. Borrower, (y) leases pursuant to which
one or more Subsidiaries of the U.S. Borrower are the respective lessees and (z)
Indebtedness of Subsidiaries of the U.S. Borrower of the type permitted pursuant to Section
9.04(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 U.S. 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 U.S. Borrower or such Subsidiary in an aggregate amount not to exceed
$50,000,000 at any time outstanding, (y) Indebtedness of the U.S. 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 U.S. Borrower or such Subsidiary in an aggregate amount not to exceed
$50,000,000 at any time outstanding and (z) Indebtedness of the U.S. 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



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Decision pending appeal by the U.S.
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 U.S. Borrower or any Subsidiary of the U.S. Borrower arising
from agreements of the U.S. Borrower or a Subsidiary of the U.S. 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 U.S. 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 U.S. Borrower evidenced by a guaranty of the
Indebtedness or other obligations of any other Person (including Indebtedness of Foreign
Subsidiaries permitted pursuant to Section 9.04(b)(vii) above), so long as the aggregate
amount of the Contingent Obligations of the U.S. Borrower pursuant to this Section
9.04(b)(xii) does not exceed $75,000,000 at any time;




     (xiii) the U.S. Borrower and the U.S. Subsidiary Guarantors may incur and remain liable
with respect to the Indebtedness under the ABL Credit Agreement and the other ABL Credit
Documents; provided, however, that the aggregate principal amount of
Indebtedness thereunder shall not exceed the greater of (I) $400,000,000 and (II) the sum of
(x) 80% of the net book value of the accounts receivable of the U.S. Borrower and its
Domestic Subsidiaries and (y) 60% of the net book value of the inventory of the U.S.
Borrower and its Domestic Subsidiaries, with any determinations pursuant to this clause (II)
to be made on the date of each incurrence of Indebtedness pursuant to this clause (II) based
on the most recent financial statements that are available to the U.S. Borrower;




     (xiv) Indebtedness of Foreign Subsidiaries of the U.S. 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;




     (xv) (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 U.S. Borrower evidenced by a guaranty of Indebtedness
permitted pursuant to preceding subclause (x) of this Section 9.04(b)(xv);




     (xvi) [Reserved]




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




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




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



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          9.05 Advances; Investments; Loans. The U.S. 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 (each of the foregoing an “Investment” and,
collectively, “Investments”), except:





     (i) the U.S. Borrower and its Subsidiaries may acquire and hold cash and Cash
Equivalents;




     (ii) the U.S. 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 U.S.
Borrower or such Subsidiary;




     (iii) the U.S. 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 9.04(b)(iii) shall be permitted;




     (v) (x) Investments constituting Intercompany Existing Indebtedness in existence on the
Amendment No. 3 Effective Date and any Permitted Refinancing Indebtedness in respect thereof
and (y) other Investments in existence on the Amendment No. 3 Effective Date and listed on
Schedule VI (and amendments, modifications and renewals thereof that do not increase the
amount of such Investments);




     (vi) Investments (u) by U.S. Credit Parties in Foreign Credit Parties provided
that at no time shall the aggregate outstanding amount of all such Investments made pursuant
to subclause (u) of this Section 9.05(vi) exceed $50,000,000, (v) in any U.S. Credit Party,
(w) among Foreign Credit Parties; provided that in the case of any Investment
resulting in a transfer of Collateral with a Fair Market Value in excess of $5,000,000, the
U.S. Borrower shall notify the Administrative Agent thereof and 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
therein, (x) by any Subsidiary of the U.S. Borrower that is not a Credit Party in the
U.S. Borrower or any of its Subsidiaries, (y) so long as no Event of Default has occurred
and is continuing, transfers of cash and Cash Equivalents among the U.S. Borrower and its
Subsidiaries in the ordinary course of business for working capital purposes and (z) other
Investments by the U.S. Borrower and its Subsidiaries in any Subsidiary of the U.S.
Borrower, provided that at no time shall the aggregate outstanding amount of all such
Investments made pursuant to subclause (z) of this Section 9.05(vi) (exclusive of
Investments that would have otherwise been permitted under subclause (w) above except that
such Investment involved a transitory Investment through a Subsidiary that was not a Credit
Party which promptly made a corresponding Investment in a Foreign Credit Party) exceed
$250,000,000;




     (vii) (x) loans by the U.S. Borrower and its Subsidiaries to officers, employees and
directors of the U.S. 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 ex-



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ceed $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, (y) advances of
reimbursable expenses by the U.S. Borrower and its Subsidiaries to officers, employees and
directors of the U.S. Borrower and its Subsidiaries for bona fide purposes,
in each case incurred in the ordinary course of business, and (z) non-cash loans to
officers, directors or other employees of the U.S. Borrower or any of its Subsidiaries in
connection with such officers’, directors’ or employees’ acquisition of shares of capital
stock of the U.S. Borrower;




     (viii) the U.S. Borrower and its Subsidiaries may make Permitted Acquisitions;




     (ix) the U.S. 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 U.S. 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 9.02(iii) and (xiii);




     (xi) so long as no Event of Default has occurred and is continuing, loans or advances
by the U.S. Borrower or any Subsidiary of the U.S. Borrower in connection with grower loan
programs; provided that at no time shall the aggregate outstanding principal amount of all
such loans and advances made pursuant to this Section 9.05(xi) exceed $75,000,000
(determined without regard to write-downs or write-offs thereof);




     (xii) any Non-Wholly-Owned Subsidiary of the U.S. Borrower may make loans to its
shareholders generally so long as (x) the U.S. Borrower or its respective Subsidiary which
owns the Equity Interest in the Subsidiary making such loans receives at least its
proportionate share of such loans (based upon its relative holding of the Equity Interests
in the Subsidiary making such loans), (y) unless the entering into of the Intercompany
Subordination Agreement requires the consent of the minority shareholder of such Non-Wholly
Owned Subsidiary (and such consent is not obtained), such Non-Wholly-Owned Subsidiary (as
obligee of such loan) and the U.S. 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 Section 9.05(xii)
which are not subject to the subordination provisions of the Intercompany Subordination
Agreement shall not exceed $50,000,000 at any time;




     (xiii) Investments constituting guaranties of Indebtedness permitted by Section 9.04;




     (xiv) the Bermuda Partnership Partners may make additional Investments in the Bermuda
Partnership not otherwise permitted by this Section, so long as (w) the Bermuda Partnership
promptly (and in any event within one Business Day of receipt thereof) uses 100% of the cash
proceeds of such Investment to make a prepayment on the intercompany loan owing by it to the
Bermuda Borrower and incurred pursuant to the Intercompany Distribution Transactions, (x)
the Bermuda Borrower uses all of the proceeds of such prepayment within one Business Day of
the date of receipt thereof to prepay Term Loans owing by it in accordance with the
requirements of Section 4.01(vii), (y) if any U.S. Borrower Incremental Term Loans are then
outstanding, the U.S. Borrower makes a concurrent prepayment of U.S. Borrower Incremental
Term Loans in accordance with the requirements of Section 4.01(vii) and (z) any Investment
in the form of an intercompany loan or advance pursuant to this Section 9.05(xiv) shall be
subject to subordination as, and to the extent required by, the Intercompany Subordination
Agreement; and



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     (xv) so long as no Default or Event of Default then exists or would result therefrom,
the U.S. Borrower and its Subsidiaries may make Investments not otherwise permitted by
Sections 9.05(i) through (xiv); provided that the aggregate amount of the
Investments made pursuant to this Section 9.05(xv) after the Amendment No. 3 Effective Date
shall not exceed $100,000,000 (without regard to any write-downs or write-offs thereof)
plus the Available Amount.



          9.06 Restricted Payments; etc. The U.S. 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 U.S. 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 U.S. 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 U.S. Borrower may pay Dividends to the U.S. Borrower or
any Wholly-Owned Subsidiary of the U.S. Borrower and (y) any Non-Wholly-Owned Subsidiary of
the U.S. Borrower may pay cash Dividends to its shareholders generally so long as the U.S.
Borrower or its respective Subsidiary which owns the Equity Interest in the Subsidiary
paying such Dividends receives at least its proportionate share thereof (based upon its
relative holding of the Equity Interests in the Subsidiary paying such Dividends and taking
into account the relative preferences, if any, of the various classes of Equity Interests of
such Subsidiary); provided that any Dividend made pursuant to the preceding clause
(x) to any Wholly-Owned Subsidiary that is not a Credit Party by any Subsidiary that is a
Credit Party may only be made if (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; provided,
however, that, subject to Section 9.01(c), any such Dividend may be made to the
Bermuda Partnership notwithstanding the existence of an Event of Default (other than an
Event of Default under Section 10.01 or 10.05) so long as (a) the Bermuda Partnership
complies with clause (II) of the preceding proviso and (b) the Bermuda Partnership Partners
are (after giving effect to the receipt of any Dividend from Bermuda Partnership) in compliance with the
requirements of Section 9.01(c);




     (ii) the U.S. Borrower may redeem or purchase shares of, or options to purchase, U.S.
Borrower Common Stock held by former officers or employees of the U.S. 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
U.S. Borrower in respect of such redemptions and/or purchases shall be cash, (y) the
aggregate amount paid by the U.S. Borrower in respect of all such redemptions and/or
purchases shall not exceed $10,000,000 in any Fiscal Year of the U.S. Borrower, and (z) at
the time of any redemption or purchase pursuant to this Section 9.06(ii), no Specified
Default or Event of Default shall then exist or result therefrom;



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     (iii) the cancellation of a portion of any equity compensation award in connection with
the payment of withholding taxes by the U.S. Borrower and its Subsidiaries thereon on behalf
of employees and directors of the U.S. Borrower and its Subsidiaries;




     (iv) the U.S. 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;




     (v) repurchases of Equity Interests of the U.S. Borrower or any Subsidiary of the U.S.
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;




     (vi) repurchases of Equity Interests of the U.S. Borrower in lieu of the issuance of
fractional shares upon the exercise of options or warrants to purchase U.S. Borrower Common
Stock;




     (vii) the distribution of rights to holders of U.S. Borrower Common Stock pursuant to a
customary shareholder rights plan and the redemption of such rights for nominal
consideration; and




     (viii) so long as no Default or Event of Default has occurred and is continuing, other
Dividends in an aggregate amount not to exceed $25,000,000 plus the Available
Amount.



          9.07 Transactions with Affiliates. The U.S. 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 U.S. Borrower except on terms and conditions substantially as favorable to the U.S. Borrower
or such Subsidiary as would be reasonably expected to be obtainable by the U.S. 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 U.S. Borrower and its Subsidiaries; (ii) the payment of consulting or other
fees to the U.S. Borrower by any of its Subsidiaries in the ordinary course of business; (iii)
customary fees to directors of the U.S. Borrower and its Subsidiaries; (iv) the U.S. Borrower and
its Subsidiaries may enter into the employment arrangements with respect to the procurement of
services with their respective officers and employees in the ordinary course of business; (v)
Dividends may be paid by the U.S. Borrower to the extent permitted by Section 9.06; (vi)
transactions between the U.S. Borrower and/or any of its Subsidiaries and their respective
Affiliates listed on Schedule XIV hereto; and (vii) Investments in, and transactions with, any
Person that is an Affiliate of the U.S. Borrower solely as a result of the U.S. Borrower’s or a
Subsidiaries ownership of Equity Interests of such Person.




          9.08 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 U.S. 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 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 other than (w) refinancings of Specified Indebtedness in exchange for or with
the proceeds of Permitted Refi-



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nancing Indebtedness, (x) in exchange for U.S. Borrower Common
Stock or Qualified Preferred Stock, (y) so long as no Default or Event of Default has
occurred and is continuing, repurchases or redemptions of Specified Indebtedness in an
aggregate amount not to exceed $50,000,000 plus the Available Amount;




     (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 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.



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




          9.09 Limitation on Issuance of Equity Interests. The U.S. 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.




          9.10 Limitation on Certain Restrictions on Subsidiaries. The U.S. Borrower will not,
nor will it 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 U.S. Borrower or any Subsidiary of
the U.S. Borrower, or pay any Indebtedness owed to the U.S. Borrower or a Subsidiary of the U.S.
Borrower, (y) make loans or advances to the U.S. Borrower or any Subsidiary of the U.S. Borrower or
(z) transfer any of its properties or assets to the U.S. 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
U.S. Borrower or a Subsidiary of the U.S. Borrower, (iv) customary provisions restricting
assignment of any licensing agreement (in which the U.S. Borrower or any of its Subsidiaries is the
licensee) or any other contract entered into by the U.S. Borrower or any Subsidiary of the U.S.
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 Permitted Acquisition and so long as the respective encumbrances or
restrictions were not created (or made more restrictive) in connection with or in anticipation of
the respective Permitted Acquisition, (vi) restrictions applicable to any Non-Wholly Owned
Subsidiary existing at the time of the acquisition thereof as a result of an Investment pursuant to
Section 9.05; provided that the restrictions applicable to such joint venture are not made
more burden-




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some, from the perspective of the U.S. 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 9.03(iv),
(x), (xi), (xii) and (xvi), (viii) the ABL 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 (ix).




          9.11 Special Restrictions Relating to Principal Property. The U.S. Borrower will not,
and will not permit any of its Subsidiaries to, (i) own or acquire any Principal Property (other
than the Principal Properties designated on Schedule XV 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 U.S. 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 U.S. 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 U.S. Borrower or the respective
Subsidiary or (y) the respective Principal Property is constructed by the U.S. Borrower or the
respective Subsidiary. The restrictions set forth in this Section 9.11 shall cease to apply
following the date that Principal Properties cease to constitute Excluded Collateral.




          9.12 Financial Maintenance Covenants.




          (a) The U.S. Borrower shall not permit the Total Leverage Ratio as of the last day of any Test
Period set forth below to exceed the maximum Total Leverage Ratio set forth opposite such date
below:




	 	 	 	 	 
	Test Period Ending on or About	 	Maximum Total Leverage Ratio
	March 27, 2010
	 	 	5.00 to 1.00	 
	June 19, 2010
	 	 	5.00 to 1.00	 
	October 9, 2010
	 	 	4.75 to 1.00	 
	January 1, 2011
	 	 	4.75 to 1.00	 
	March 26, 2011
	 	 	4.75 to 1.00	 
	June 18, 2011
	 	 	4.50 to 1.00	 
	October 8, 2011
	 	 	4.50 to 1.00	 
	December 31, 2011
	 	 	4.50 to 1.00	 
	March 24, 2012
	 	 	4.50 to 1.00	 
	June 16, 2012
	 	 	4.25 to 1.00	 
	October 6, 2012
	 	 	4.25 to 1.00	 
	December 29, 2012
	 	 	4.00 to 1.00	 






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	Test Period Ending on or About	 	Maximum Total Leverage Ratio
	March 24, 2013
	 	 	4.00 to 1.00	 
	June 16, 2013
	 	 	3.75 to 1.00	 
	October 6, 2013
	 	 	3.75 to 1.00	 
	December 29, 2013 and the last day of each
Test Period thereafter
	 	 	3.50 to 1.00	 






          (b) The U.S. Borrower shall not permit the Consolidated Interest Coverage Ratio for any Test
Period set forth below to be less than the minimum Consolidated Interest Coverage Ratio set forth
opposite the last day of the applicable Test Period set forth below:




	 	 	 	 	 
	 	 	Minimum Consolidated Interest
	Test Period Ending on or About	 	Coverage Ratio
	March 27, 2010
	 	 	1.50 to 1.00	 
	June 19, 2010
	 	 	1.50 to 1.00	 
	October 9, 2010
	 	 	1.75 to 1.00	 
	January 1, 2011
	 	 	1.75 to 1.00	 
	March 26, 2011
	 	 	1.75 to 1.00	 
	June 18, 2011
	 	 	1.75 to 1.00	 
	October 8, 2011
	 	 	1.75 to 1.00	 
	December 31, 2011
	 	 	2.00 to 1.00	 
	March 24, 2012
	 	 	2.00 to 1.00	 
	June 16, 2012
	 	 	2.00 to 1.00	 
	October 6, 2012
	 	 	2.00 to 1.00	 
	December 29, 2012 and the last day of each
Test Period thereafter
	 	 	2.25 to 1.00	 






          Section 10. Events of Default. Upon the occurrence of any of the following specified
events (each, an “Event of Default”):




          10.01 Payments. Either 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 Unreimbursed Payment, 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 either 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




          10.02 Representations, etc. (a) 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, (b) any
representation, warranty or




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statement which is qualified by a materiality standard of any kind and
is made or deemed made by any Foreign Credit Party in any Foreign Security Document or in any
statement or certificate delivered pursuant to any Foreign Security Document shall prove to be
untrue in any material respect on the date as of which made or deemed made and (c) any material
representation, warranty or statement which is not qualified by a materiality standard of any kind
and is made or deemed made by any Foreign Credit Party in any Foreign Security Document or in any
statement or certificate delivered pursuant to any Foreign Security Document shall prove to be
untrue in any material respect on the date as of which made or deemed made; or




          10.03 Covenants. The U.S. 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 Section
2B.07, 8.01(e)(i), 8.10, 8.11, 8.16 or 9, or (b) 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
Section 10.01, 10.02 or clause (a) of this Section 10.03) and such default shall continue
unremedied for a period of at least 30 days after notice to the defaulting party by the
Administrative Agent or the Required Lenders; or




          10.04 Default Under Other Agreements. (a) The U.S. 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 Obligations) of the U.S. 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 10.04 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




          10.05 Bankruptcy, etc. The U.S. 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 U.S. 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 U.S. Borrower or any of its Subsidiaries; or the U.S.
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 U.S. Borrower or any of its Subsidiaries; or there is commenced against
the U.S. Borrower or any of its Subsidiaries any such proceeding which remains undismissed for a
period of 60 days; or the U.S. 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 U.S. 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 U.S. Borrower or any of its Subsidiaries makes a general assignment for
the benefit of creditors; or any Company action is taken by the U.S. Borrower or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or




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          10.06 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 U.S. Borrower or any Subsidiary of the U.S. 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 U.S. Borrower or any Subsidiary of the U.S. 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 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




          10.07 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
9.03), and subject to no other Liens (except as permitted by Section 9.03), 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 (i) the occurrence of an
Excluded Event shall not give rise to an Event of Default under this Section 10.07, (ii) 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 10.07, 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 and (iii) in the case of any default described in clause (b) above in the due
performance or observance of any covenant or agreement contained in any Foreign Security Document
that is not (directly or indirectly) related to the perfection or enforceability of a Lien on
Collateral, such default shall not give rise to an Event of Default until such default shall
continue unremedied for a period of at least 15 days after notice to the defaulting party by the
Administrative Agent, the Collateral Agent or the Required Lenders; or




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          10.08 Guaranties. Any Guaranty or any provision thereof shall cease to be in full
force or effect as to the relevant Guarantor, or any Guarantor or Person acting by or on behalf of
such Guarantor shall deny or disaffirm such Guarantor’s obligations under the relevant Guaranty, or
any Guarantor shall default in the due performance or observance of any term, covenant or agreement
on its part to be performed or observed pursuant to its Guaranty; provided that the
occurrence of an Excluded Event shall not give rise to an Event of Default under this Section
10.08; or




          10.09 Judgments. One or more judgments or decrees shall be entered against the U.S.
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 U.S. 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 such other judgment(s) or decree(s) by
courts outside of the United States and Bermuda shall not be an Event of Default under this Section
10.09 unless (i) the U.S. 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
jurisdiction or jurisdictions where the U.S. 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




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




          10.11 Denial of Liability. (a) Either Borrower shall deny its obligations under this
Agreement or any other Credit Document, (b) any law, rule or regulation shall purport to render
invalid, or preclude enforcement of, any provision of this Agreement or any other Credit Document
or impair performance of any Foreign Credit Party’s obligations hereunder or under any other Credit
Document or (c) any dominant authority asserting or exercising de jure or
de facto governmental or police powers shall, by moratorium laws or otherwise,
cancel, suspend or defer the obligation of any Foreign Credit Party to pay any amount required to
be paid hereunder or under any other Credit Document; provided that the occurrence of an
Excluded Event shall not give rise to an Event of Default under this Section 10.11; or




          10.12 Governmental Action. Any governmental authority shall have condemned,
nationalized, seized, or otherwise expropriated all or any substantial part of the property, shares
of capital stock or other assets of any Foreign Credit Party or
any of its Subsidiaries, or shall
have assumed custody or control of such property or other assets or of the business or operations
of any Foreign Credit Party or



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any of its Subsidiaries, or shall have taken any action for the
dissolution or disestablishment of any Foreign Credit Party or any of its Subsidiaries or any
action that would prevent any Foreign Credit Party, any of its Subsidiaries or any of their
respective officers from carrying on the business of such Foreign Credit Party or such Subsidiary
or a substantial part thereof; provided that the occurrence of an Excluded Event shall not
give rise to an Event of Default under this Section 10.12; or




          10.13 Special Defaults Relating to Bermuda Entities. The Bermuda Borrower shall fail
to maintain its corporate existence in full force and effect,



then, and in any such event, and at any time thereafter, if any Event of Default shall then be
continuing, the Administrative Agent shall, upon the written request of the Required Lenders, by
written notice to the U.S. 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 10.05 shall occur with respect
to either 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
Commitment of each Lender shall forthwith terminate immediately and any 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 and
Unreimbursed Payments) 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
Borrowers; (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 or Bank Guaranty which may be
terminated in accordance with its terms; (v) direct the Bermuda Borrower to pay (and the Bermuda
Borrower agrees that upon receipt of such notice, or upon the occurrence of an Event of Default
specified in Section 10.05 with respect to either Borrower, it will pay) to the Administrative
Agent at the Payment Office such additional amount of cash (in the respective currencies in which
such Letters of Credit or Bank Guaranties are denominated), to be held as security by the
Administrative Agent, as is equal to the sum of (x) the aggregate Stated Amount of all Bermuda
Borrower Letters of Credit issued for the account of the Bermuda Borrower and then outstanding and
(y) the aggregate Face Amount of all Bank Guaranties issued for the account of the Bermuda Borrower
and then outstanding; (vi) direct the U.S. Borrower to pay (and the U.S. Borrower agrees that upon
receipt of such notice, or upon the occurrence of an Event of Default specified in Section 10.05
with respect to either Borrower, it will pay) to the Administrative Agent at the Payment Office
such additional amount of cash (in the respective currencies in which such Letters of Credit or
Bank Guaranties are denominated), to be held as security by the Administrative Agent, as is equal
to the sum of (x) the aggregate Stated Amount of all Letters of Credit then outstanding and (y) the
aggregate Face Amount of all Bank
Guaranties issued for the account of the U.S. Borrower and then outstanding; and (vii) apply any
cash collateral held by the Administrative Agent as provided in Section 4.02 to the repayment of
the Obligations.




          Section 11. Definitions. As used herein, the following terms shall have the meanings
herein specified unless the context otherwise requires. Defined terms in this Agreement shall
include in the singular number the plural and in the plural the singular:




          “ABL Collateral Agent” shall mean the “Collateral Agent” as defined in the ABL Credit
Agreement.




          “ABL Credit Agreement” shall mean the Credit Agreement, dated as of April 12, 2006, as
amended through the Amendment No. 3 Effective Date, among the U.S. Borrower, Deutsche Bank




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Trust
Company Americas, as Administrative Agent, Banc of America Securities LLC, as syndication agent,
The Bank of Nova Scotia, as documentation agent, Deutsche Bank Securities Inc. and Banc of America
Securities LLC, as joint book runners, and Deutsche Bank Securities Inc., as sole lead arranger, as
the same may be further amended, restated, modified, supplemented, renewed, refunded, replaced or
refinanced from time to time in one or more agreements or indentures (in each case with the same or
new lenders, institutional investors or agents), including any agreement or indenture extending the
maturity thereof or otherwise restructuring all or any portion of the Indebtedness thereunder or
increasing the amount loaned or issued thereunder or altering the maturity thereof (so long as, in
the case of any replacement or refinancing, all commitments under the agreements or indentures so
replaced or refinanced shall have been terminated, all unpaid amounts thereunder (other than
indemnities) shall have been paid in full and all parties to any replacement or refinancing
agreements or indentures, or a trustee or agent on their behalf, shall have become party to the
Intercreditor Agreement as of the applicable date of replacement or refinancing, as the case may
be).




          “ABL Credit Documents” shall mean the ABL Credit Agreement and the related guaranties,
pledge agreements, security agreements, mortgages, notes and other agreements and instruments
entered into in connection with the ABL Credit Agreement, in each case as the same may be amended,
modified and/or supplemented from time to time in accordance with the terms hereof and thereof.




          “ABL Credit Party” shall mean a “Credit Party” as defined in the ABL Credit Agreement.




          “ABL Lender” shall mean a “Lender” as defined in the ABL Credit Agreement.




          “ABL Loans” shall mean the “Loans” as defined in the ABL Credit Agreement.




          “ABL Priority Collateral” means, collectively, all “ABL Priority Collateral” as
defined in the Intercreditor Agreement.




          “ABL Security Documents” shall mean the “Security Documents” as defined in the ABL
Credit Agreement.




          “Account Party” shall mean, with respect to Letters of Credit or Bank Guaranties, the
U.S. Borrower or the Bermuda Borrower, as specified in the respective Letter of Credit Request (or,
in the case of Existing Letters of Credit, as specified pursuant to the Original Credit Agreement)
or Bank Guaranty Request (or, in the case of Existing Bank Guaranties, as specified pursuant to the
Original Credit Agreement).




          “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 U.S. Borrower,
which assets are acquired by the U.S. 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 U.S.
Borrower (or shall be merged with and into the U.S. Borrower, or a Subsidiary of the U.S.
Borrower).




          “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 8.11.




          “Additional Mortgage” shall have the meaning provided in Section 8.11(a).




          “Additional Mortgaged Property” shall have the meaning provided in Section 8.11(a).





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          “Additional Security Documents” shall mean all mortgages, pledge agreements, security
agreements and other security documents entered into from time to time pursuant to Sections 8.11
and/or 13.19, as each such document may be modified, supplemented or amended from time to time in
accordance with the terms hereof and thereof.




          “Administrative Agent” shall have the meaning provided in the first paragraph of this
Agreement and shall include any successor to the Administrative Agent appointed pursuant to Section
12.10.




          “Affiliate” shall mean, with respect to any Person, any other Person directly or
indirectly controlling (including but not limited to all directors and executive 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 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.




          “After-Acquired Foreign Personal Property” shall have the meaning provided in Section
8.11(i).




          “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 12.10.




          “Aggregate CL Exposure” shall mean, at any time, the sum of (i) the aggregate amount
of all Letter of Credit Outstandings at such time plus (ii) the aggregate amount of all Bank
Guaranty Outstandings at such time (for this purpose, giving effect to the provisos to the
definitions of Stated Amount and Face Amount in determining the Letter of Credit Outstandings and
Bank Guaranty Outstandings at such time).




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




          “Alternative Currency” shall mean Sterling and Euros.




          “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.




          “Applicable Currency” shall mean (i) with respect to any Loan, Dollars and (ii) with
respect to any Letter of Credit or Bank Guaranty, Dollars or the Alternative Currency in which such
Letter of Credit or Bank Guaranty is denominated.




          “Applicable Increased Term Loan Rate” shall mean, at any time, with respect to any
newly-created Tranche of Incremental Term Loans, the rate per annum (expressed as a percentage)
applicable to Tranche B-1 Term Loans, Tranche C-1 Term Loans and each other then existing Tranche
of In-




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cremental Term Loans after giving effect to the provisos in subclause (II) of clause (vi) of
Section 1.15(a) and shall be conclusive and binding on all Lenders absent manifest error.




          “Applicable Margin” shall mean (i) in the case of Tranche B-1 Term Loans and Tranche
C-1 Term Loans maintained as (A) Base Rate Loans, 2.25% and (B) Eurodollar Loans, 3.25% (or on and
after the date of the most recent incurrence of any Tranche of Incremental Term Loans bearing
interest at the Applicable Increased Term Loan Rate, the Applicable Increased Term Loan Rate for
such Tranche of Incremental Term Loans); and (ii) in the case of any Type of Incremental Term Loans
of a given Tranche, that percentage per annum set forth in, or calculated in accordance with,
Section 1.15 and the relevant Incremental Term Loan Commitment Agreement (or in the case of
Incremental Term Loans of a given Tranche, on and after the date of the most recent incurrence of
any Tranche of Incremental Term Loans bearing interest at the Applicable Increased Term Loan Rate,
the Applicable Increased Term Loan Rate for such Tranche of Incremental Term Loans).
Notwithstanding the foregoing, the relevant Applicable Margin shall be subject to increases
pursuant to, and to the extent expressly provided in, Section 1.15.




          “Applicable Prepayment Percentage” shall mean, at any time, for purposes of Section
4.02(e) and the definition of “Retained Excess Cash Flow Amount,” 50%; provided that, so
long as no Default or Event of Default is then in existence, if the Total Leverage Ratio is less
than 3.50:1.00 as at the last day of the most recently ended Fiscal Year of the U.S. Borrower (as
set forth in an officer’s certificate delivered pursuant to Section 8.01(d) for the Fiscal Year of
the U.S. Borrower then last ended), the Applicable Prepayment Percentage shall instead be 0%.




          “Asset Sale” shall mean any sale, transfer or other disposition by the U.S. Borrower
or any of its Subsidiaries to any Person other than the U.S. Borrower or any Subsidiary of the U.S.
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 U.S.
Borrower of its own capital stock) of the U.S. 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 U.S. Borrower or (iii) sales or liquidations of Cash Equivalents, it being
understood and agreed that the grant of a Lien by the U.S. 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 the Assignment and Assumption
Agreement substantially in the form of Exhibit G (appropriately completed).




          “Authorized Officer” shall mean, with respect to (i) delivering Notices of Borrowing,
Notices of Conversion, Letter of Credit Requests, Bank Guaranty Requests and similar notices the
Chairman, the Chief Executive Officer, the Chief Financial Officer, the General Counsel, the
Treasurer or any Assistant Treasurer of the U.S. Borrower, any person or persons that has or have been authorized by
the board of directors of either Borrower to deliver such notices pursuant to this Agreement and
that has or have appropriate signature cards on file with the Administrative Agent, (ii) delivering
financial information and officer’s certificates pursuant to this Agreement, the Chief Financial
Officer, the Treasurer or other financial officer of the U.S. Borrower and (iii) any other matter
in connection with this Agreement or any other Credit Document, any officer (or a person or persons
so designated by any two officers) of the U.S. Borrower.





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          “Available Amount” means, at any time:





     (i) the cumulative amount of cash and Cash Equivalent proceeds received by the U.S.
Borrower from the sale of its Common Stock following the Amendment No. 3 Effective Date and
at or prior to such time; plus




     (ii) the Retained Excess Cash Flow Amount at such time; minus




     (iii) the amount of outstanding Investments at such time made in reliance on the
Available Amount pursuant to Section 9.05(xv); minus




     (iv) the amount of Dividends made in reliance on the Available Amount prior to such
time pursuant to Section 9.06(viii); minus




     (v) the amount applied to make payments in respect of Specified Indebtedness in
reliance on the Available Amount prior to such time pursuant to Section 9.08(a)(i)(y).



          “Bank Guaranty” shall have the meaning provided in Section 2B.01(a).




          “Bank Guaranty Issuer” shall mean (i) if and to the extent it agrees to act as such,
any Agent (and any of such Agent’s affiliates and/or branches), (ii) any ABL Lender (and any of
such ABL Lender’s affiliates and/or branches) or any CL Lender (and any of such CL Lender’s
affiliates and/or branches) which at the request of the U.S. Borrower or the Bermuda Borrower and
with the consent of the Administrative Agent agrees, in such ABL Lender’s or CL Lender’s (or their
respective affiliate’s or branch’s) sole discretion, to become a Bank Guaranty Issuer for the
purpose of issuing Bank Guaranties pursuant to Section 2B and (iii) with respect to the Existing
Bank Guaranties, the Lender or Original Lender (and any of such Lender’s or Original Lender’s
affiliates and/or branches) designated as the issuer thereof on Part B of Schedule XI shall be the
Bank Guaranty Issuer thereof.




          “Bank Guaranty Outstandings” shall mean, at any time, the sum of (i) the aggregate
Face Amount of all outstanding Bank Guaranties which have not terminated at such time plus (ii) the
aggregate amount of all Unreimbursed Payments in respect of all Bank Guaranties at such time.




          “Bank Guaranty Payment” shall have the meaning provided in Section 2B.05(b).




          “Bank Guaranty Request” shall have the meaning provided in Section 2B.03(a).




          “Bankruptcy Code” shall have the meaning provided in Section 10.05.




          “BAS” shall mean Banc of America Securities LLC, in its individual capacity, and any
successor thereto by merger, consolidation or otherwise.




          “Base Rate” at any time shall mean the higher of (x) the rate which is 1/2 of 1% in
excess of the Federal Funds Rate at such time, (y) the Prime Lending Rate at such time and (z) the
rate which is 1% in excess of the Eurodollar Rate for an Interest Period of one month commencing on
such date.




          “Base Rate Loan” shall mean each Loan which is designated or deemed designated as a
Base Rate Loan by the respective Borrower at the time of the incurrence thereof or conversion
thereto.




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




          “Bermuda Borrower Bank Guaranty” shall mean each Bank Guaranty (which may be
denominated in Dollars or an Alternative Currency) issued for the account of the Bermuda Borrower
pursuant to Section 2B.01 and designated as such by the Bermuda Borrower in the respective Bank
Guaranty Request (or, in the case of an Existing Bank Guaranty, to the extent provided in Section
2B.01(d)).




          “Bermuda Borrower Incremental Term Loans” shall mean Incremental Term Loans incurred
by the Bermuda Borrower.




          “Bermuda Borrower Letter of Credit” shall mean each Letter of Credit (which must be
denominated in Dollars or an Alternative Currency) issued for the account of the Bermuda Borrower
pursuant to Section 2A.01.




          “Bermuda Borrower Term Loans” shall mean and include all Tranche C-1 Term Loans and
all Bermuda Borrower Incremental Term Loans.




          “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 U.S. Borrower,
and any successor thereto by way of a merger or consolidation permitted by Section 9.01(c).




          “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 U.S. Borrower,
and any successor thereto by way of a merger or consolidation permitted by Section 9.01(c).




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




          “B/G Participant” shall have the meaning provided in Section 2B.04(a).




          “B/G Participation” shall have the meaning provided in Section 2B.04(a).




          “B/G Supportable Indebtedness” shall mean (i) obligations of the U.S. Borrower or its
Wholly-Owned Subsidiaries (or, in the case of any Existing Bank Guaranty, any Foreign Subsidiary of
the U.S. Borrower) incurred in the ordinary course of business owing to taxing authorities, customs
authorities or with respect to import and/or export licenses and (ii) such other obligations of the
U.S. Borrower or its Wholly-Owned Subsidiaries as are reasonably acceptable to the Administrative
Agent and the respective Bank Guaranty Issuer and otherwise permitted to exist pursuant to the
terms of this Agreement.




          “Borrower Guaranty” shall mean the guaranty of each Borrower pursuant to Section 14.




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




          “Borrowing” shall mean the borrowing of one Type of Loan pursuant to a single Tranche
by the Bermuda Borrower or by the U.S. Borrower from all the Lenders having Commitments with
respect to such Tranche on a given date (or resulting from a conversion or conversions on such
date), having in the case of Eurodollar Loans the same Interest Period; provided (x) that
Base Rate Loans incurred




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pursuant to Section 1.10(b) shall be considered part of the related
Borrowing of Eurodollar Loans and (y) any Incremental Term Loans incurred pursuant to Section
1.01(c) shall be considered part of the related Borrowing of the then outstanding Tranche of Term
Loans (if any) to which such Incremental Term Loans are added pursuant to Section 1.15.




          “Business Day” shall mean (i) for all purposes other than as covered by clause (ii)
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 and (ii) with respect to all notices and determinations in connection
with, determinations of the LIBOR Rate and Interest Periods to be determined in accordance with
clause (ii) of the definition thereof contained herein, 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 or New York City.




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




          “Calculation Period” shall mean, with respect to any Permitted Acquisition, any
Significant Asset Sale or any other event expressly requiring calculations to be made on a Pro
Forma Basis pursuant to the terms of this Agreement, the Test Period most recently ended prior to
the date of such Permitted Acquisition, Significant Asset Sale or other event for which financial
statements pursuant to Sections 8.01(a) or (b) are then available.




          “Canadian Security Agreement” shall have the meaning provided in Section 12.14(a).




          “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) and the amount of
all Capitalized Lease Obligations incurred by such Person during such period.




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




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




          “Cash Equivalents” means (i) Dollars, Euros, Sterling, Swedish Krona and, in the case
of any of the Foreign Subsidiaries of the U.S. 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, 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




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Moody’s,
(iv) certificates of deposit and eurodollar time deposits with maturities of six months or less
from the date of acquisition, bankers’ acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any domestic commercial bank or commercial bank of a
foreign country recognized by the United States, (x) in the case of a domestic commercial bank,
having capital and surplus in excess of $500,000,000 and outstanding debt which is rated “A” (or
similar equivalent thereof) or higher by at least one nationally recognized statistical rating
organization (as defined under Rule 436 under the Securities Act) and (y) in the case of a foreign
commercial bank, having capital and surplus in excess of $250,000,000 (or the foreign currency
equivalent thereof), (v) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (ii) and (iv) above entered into with any
financial institution meeting the qualifications specified in clause (iv) above, (vi) commercial
paper having a rating of at least A-1 from S&P or 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 U.S. 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 U.S. Borrower’s
Foreign Subsidiaries.





     ”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 U.S. Borrower;




     (ii) the U.S. Borrower shall at any time cease to own directly or indirectly 100% of
the Equity Interests of the Bermuda Borrower;




     (iii) the Board of Directors of the U.S. Borrower shall cease to consist of a majority
of Continuing Directors, or




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



          “CL Applicable Margin” shall mean 5.00% (or on and after the date of the most recent
incurrence of any Tranche of Incremental Term Loans bearing interest at the Applicable Increased
Term Loan Rate, the Applicable Increased Term Loan Rate for such Tranche of Incremental Term
Loans); provided that from and after each date of delivery, on or after the Amendment No. 3
Effective Date, of any certificate delivered in accordance with Section 8.01(d), the CL Applicable
Margin shall be decreased by 0.50% from the rate set forth above if the certificate delivered in
accordance with Section 8.01(d) sets forth a calculation of the First Priority Secured Leverage
Ratio as at the last day of the respective Fiscal
Quarter or Fiscal Year for which the respective certificate is being delivered which is equal
to or less than 1.75:1.00; provided, further, that if any certificate required to
be delivered pursuant to Section 8.01(d) is not delivered by the date required pursuant to Section
8.01(d), the CL Applicable Margin shall be determined without regard to the preceding proviso from
the date on which such certificate was required to be delivered until the first Business Day
following the date of delivery of such certificate. Notwithstanding the foregoing, the CL
Applicable Margin shall be subject to increases pursuant to, and to the extent expressly provided
in, Section 1.15.




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          “CL Credit Event” shall mean and include the issuance of a Letter of Credit and/or a
Bank Guaranty.




          “CL Facility Fee” shall have the meaning provided in Section 3.01(a).




          “CL Interest Payment Date” shall mean (i) in the case of the first CL Interest Payment
Date, the last day of the Interest Period applicable to Credit-Linked Deposits occurring after the
Restatement Effective Date and (ii) the last day of every Interest Period applicable to
Credit-Linked Deposits to occur thereafter.




          “CL Lender” shall mean each Lender having a Credit-Linked Commitment (without giving
effect to any termination of the Total Credit-Linked Commitment if any Letter of Credit
Outstandings or any Bank Guaranty Obligations remain outstanding).




          “CL Maturity Date” shall mean the 180th day following the Amendment No. 3 Effective
Date or the next Business Day.




          “CL Percentage” of any CL Lender at any time shall be that percentage which is equal
to a fraction (expressed as a percentage) the numerator of which is the Credit-Linked Commitment of
such CL Lender at such time and the denominator of which is the Total Credit-Linked Commitment at
such time, provided that if any such determination is to be made after the Total
Credit-Linked Commitment (and the related Credit-Linked Commitments of the CL Lenders) has (or
have) terminated, the determination of such percentages shall be made immediately before giving
effect to such termination (but giving effect to any subsequent assignments in accordance with the
terms of this Agreement).




          “CL Tranche” shall mean a collective reference to the Credit-Linked Commitments of the
various CL Lenders, the Credit-Linked Deposits of the various CL Lenders and their L/C
Participations in Letters of Credit and B/G Participations in Bank Guaranties hereunder.




          “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.




          “Co-Documentation Agent” shall have the meaning provided in the first paragraph of
this Agreement and shall include any successor to a Co-Documentation Agent appointed pursuant to
Section 12.10.




          “Collateral” shall mean all property (whether real or personal, movable or immovable)
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 Addi
tional 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.




          “Collateral Agent” shall mean DBAG, acting as collateral agent for the Secured
Creditors.




          “Commitment” shall mean any of the commitments of any Lender, i.e., whether
the Tranche B-1 Term Loan Commitment, the Tranche C-1 Term Loan Commitment, the Credit-Linked
Commitment or the Incremental Term Loan Commitment of any Tranche of such Lender.




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          “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 U.S. Borrower and its Subsidiaries.




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




          “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 U.S. 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 GAAP purposes as foreign exchange transactions to the extent same were
deducted in arriving at Consolidated EBIT for such period, and (y) subtracting therefrom, (i) to
the extent included in arriving at Consolidated EBIT for such period, the amount of non-cash gains
during such period, (ii) the aggregate amount of all cash payments made during such period in
connection with non-cash charges incurred in a prior period, to the extent such non-cash charges
were added back pursuant to clause (x)(ii) above in a prior period and (iii) any gains attributable
to the interest component of cross-currency hedging arrangements even if such transactions are
treated for GAAP purposes as foreign exchange transactions to the extent same were included in
arriving at Consolidated EBIT for such period. Notwithstanding the foregoing, Consolidated EBITDA
of the U.S. 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 First Priority Secured Debt” shall mean, at any time, the difference of
(I) the sum of (without duplication) (i) all Indebtedness of the U.S. 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 U.S. Borrower and its Consolidated
Subsidiaries in accordance with U.S. GAAP, (ii) all Indebtedness of the U.S. Borrower and its
Consolidated Subsidiaries of the type described in clause (ii) of the definition of Indebtedness
and (iii) all Contingent Obligations of the U.S. 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 any Indebtedness that is totally unsecured and the
aggregate amount of any Indebtedness under “Notes Obligations” (as defined in the Intercreditor
Agreement); provided that (x) the amount available to be drawn under all letters of credit,
bankers’ acceptances, bank guaranties and similar obligations issued for the account of the U.S.




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Borrower or any of its Consolidated Subsidiaries (but excluding, for avoidance of doubt, all unpaid
drawings or other monetary obligations owing in respect of such letters of credit, bankers’
acceptances, bank guaranties and similar obligations) shall not be included in any determination of
“Consolidated First Priority Secured Debt” and (y) obligations arising under Synthetic Leases shall
be included in determining Consolidated First Priority Secured Debt.




          “Consolidated Interest Coverage Ratio” shall mean, on any date of determination, the
ratio of (i) Consolidated EBITDA to (ii) Consolidated Interest Expense, in each case, 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 Consolidated Interest Coverage Ratio shall be
determined on a Pro Forma Basis.




          “Consolidated Interest Expense” shall mean, for any period, (i) the total consolidated
interest expense of the U.S. 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 an
“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 U.S 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 U.S. 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 trans-actions are treated for GAAP purposes as
foreign exchange transactions.




          “Consolidated Net Debt” shall mean, at any time, the remainder of (I) the sum of
(without duplication) (i) all Indebtedness of the U.S. 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 U.S. Borrower and its Consolidated
Subsidiaries in accordance with U.S. GAAP, (ii) all Indebtedness of the U.S. 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 U.S. 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 of the U.S.
Borrower and its Subsidiaries at such time to the extent same would be reflected on a consolidated
balance sheet of the U.S. 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 U.S. Borrower or any of its Consolidated
Subsidiaries (but excluding, for avoidance of doubt, all unpaid drawings or other monetary
obligations owing in respect of such letters of
credit, bankers’ acceptances, bank guaranties and similar obligations) shall not be included
in any determination of “Consolidated Net Debt,” (x) for purposes of this definition, the amount of
Indebtedness in respect of the Interest Rate Protection Agreements, Other Hedging Agreements and
Commodity 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 U.S. 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 U.S.
Borrower or any of its Consolidated Subsidiaries shall




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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
U.S. 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 U.S. Borrower as in effect on the Amendment No.
3 Effective Date), if such statements were prepared as of such date.




          “Contemplated Asset Sale” shall mean any sale of assets by the U.S. 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 Borrower and the Bermuda Partnership and any Person
which owns, directly or indirectly, Equity Interests therein); provided, however,
that (i) any such assets so sold are not material to the operations of the U.S. Borrower and its
Subsidiaries, (ii) after giving effect to such sale, the U.S. Borrower would be in compliance on a
Pro Forma Basis with Section 9.12 as of the last day of the most recently completed Test Period for
which financial statements are available and (iii) the U.S. Borrower shall have provided a
certificate to the Administrative Agent stating that such sale is made as a, and complies with the
requirements of the definition of, Contemplated Asset Sale.




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




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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 U.S. 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 U.S. Borrower is recommended or approved by a majority
of then Continuing Directors.




          “Credit Documents” shall mean this Agreement, the Notes, each Subsidiaries Guaranty,
the Intercompany Subordination Agreement, each Security Document, each Incremental Term Loan
Commitment Agreement, the U.S. Subsidiaries Guaranty, the Foreign Subsidiaries Guaranty
Acknowledgement, the Intercompany Subordination Agreement Acknowledgement, each Foreign Security
Document Acknowledgement and/or Amendment, the Intercreditor Agreement and any other guarantees or
security documents executed and delivered for the benefit of the Lenders in accordance with the
requirements of this Agreement and any other guaranties, pledge agreements or security documents
executed and delivered in accordance with the requirements of Section 8.11.




          “Credit Event” shall mean the making of a Loan, the issuance of a Letter of Credit,
the issuance of a Bank Guaranty or the making of any Credit-Linked Deposit.




          “Credit-Linked Commitment” shall mean, for each Lender, the amount set forth opposite
such Lender’s name in Schedule I (prior to the Amendment No. 3 Effective Date) directly below the
column entitled “Credit-Linked Commitment,” as the same may be (x) reduced from time to time or
terminated pursuant to Sections 3.02, 3.03 and/or 10, as applicable, or (y) adjusted from time to
time as a result of assignments to or from such Lender pursuant to Section 1.13 or 13.04(b).




          “Credit-Linked Deposit” shall mean, as to each CL Lender, the cash deposit made by
such CL Lender pursuant to Section 2C.01(a) or Section 1.13 or 13.04(b), as the case may be, as
such deposit may be (x) reduced from time to time pursuant to the terms of this Agreement and (y)
reduced or increased from time to time pursuant to assignments to or by such CL Lender pursuant to
Section 1.13 or 13.04(b). The initial amount of each CL Lender’s Credit-Linked Deposit shall be
equal to the amount of its Credit-Linked Commitment on the Restatement Effective Date or on the
date that such Person becomes a CL Lender pursuant to Section 1.13 or 13.04(b).




          “Credit-Linked Deposit Account” shall mean the accounts of, and established by, the
Deposit Bank under its sole and exclusive control and maintained at the office of the Deposit Bank,
and designated as the “Dole Foods Credit-Linked Deposit Account” that shall be used solely for the
purposes set forth in Sections 1.04, 2A.04(c) and 2B.04(c).




          “Credit-Linked Deposit Cost Amount” shall mean, at any time, a percentage per annum
equal to 0.13% (or such other amount as may be agreed from time to time by the Administrative Agent
and the U.S. Borrower).




          “Credit Party” shall mean each U.S. Credit Party and each Foreign Credit Party.




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





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          “DBSI” shall mean Deutsche Bank Securities Inc., in its individual capacity, and any
successor corporation thereto by merger, consolidation or otherwise.




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




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




          “Deposit Bank” shall mean DBAG and shall include any successor thereto appointed
pursuant to Section 12.10.




          “Deutsche Bank” means Deutsche Bank Trust Company Americas, and its successors and
assigns.




          “Disqualified Voting Participant” shall mean any participant meeting the requirements
of subclauses (x), (y)(A) and (y)(B) of clause (II) of the third proviso appearing in Section
13.04(a) which (i) has refused to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement of the type described in Section 13.12(a) and which
have been approved by the Required Lenders and (ii) has been designated as a “Disqualified Voting
Participant” by the U.S. Borrower in a written notice to the Administrative Agent.




          “Dividend” shall have the meaning provided in Section 9.06.




          “Dole Canada” shall have the meaning provided in Section 12.14(a).




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




          “Dollar Denominated Bank Guaranty” shall mean each Bank Guaranty denominated in
Dollars.




          “Dollar Denominated Bank Guaranty Outstandings” shall mean, at any time, the sum of
(i) the aggregate Face Amount of all outstanding Dollar Denominated Bank Guaranties at such time
plus (ii) the aggregate amount of all Unreimbursed Payments with respect to Dollar
Denominated Bank Guaranties at such time.




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




          “Dollar Denominated Letter of Credit Outstandings” shall mean, at any time, the sum of
(i) the aggregate Stated Amount of all outstanding Dollar Denominated Letters of Credit at such
time plus (ii) the aggregate amount of all Unpaid Drawings with respect to Dollar
Denominated Letters of Credit at such time.




          “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 (or, in the case of any
determination pursuant to




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Section 1.14 or 13.22 hereof or Section 26 (or any analogous provision)
of any Subsidiaries Guaranty, on the date of determination); provided that (x) the Dollar
Equivalent of any Unpaid Drawing under a Non-Dollar Denominated Letter of Credit shall be
determined at the time the drawing under the related Letter of Credit was paid or disbursed by the
respective Issuing Lender, and (y) the Dollar Equivalent of any Unreimbursed Payment under a
Non-Dollar Denominated Bank Guaranty shall be determined at the time the payment under the related
Bank Guaranty was made or disbursed by the respective Bank Guaranty Issuer; provided,
further, that for purposes of (x) determining compliance with Sections 1.01(a), (b) and
(c), 2A.01(c), 2B.01(c) and 4.02(a) and (y) calculating Fees pursuant to Section 3.01, 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, provided,
however, that at any time during a calendar month, if the Aggregate CL 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 Total
Credit-Linked Commitment, 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 first Business Day of the next succeeding calendar month or such earlier
date, if any, as the rate is reset pursuant to this proviso. 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).




          “Dollars” shall mean U.S. Dollars.




          “Domestic Subsidiary” shall mean, as to any Person, 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 2A.05(b).




          “Eligible Transferee” shall mean and include a commercial bank, a mutual fund, an
insurance company, a financial institution, a “qualified institutional buyer” (as defined in Rule
144A of the Securities Act), any fund that regularly invests in bank loans or any other “accredited
investor” (as defined in Regulation D of the Securities Act), but in any event excluding any
individual and the U.S. Borrower and its Subsidiaries and Affiliates.




          “EMU Legislation” shall mean the legislative measures of the European Union for the
introduction of, changeover to or operation of the Euro in one or more member states, being in part
legislative measures to implement the third stage of the European Monetary Union.




          “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
U.S. Borrower or any of its Subsidiaries under any Environmental Law or any permit issued to the
U.S. 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




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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 preferred stock, any limited or general
partnership interest and any limited liability company membership interest.




          “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the regulations promulgated and rulings issued thereunder. Section
references to ERISA are to ERISA, as in effect on the 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 U.S. Borrower or a Subsidiary of the U.S. 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 U.S. Borrower or a Subsidiary of the U.S. Borrower being or having been a general
partner of such Person.




          “Euro Denominated Bank Guaranty” shall mean each Bank Guaranty denominated in Euros.




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




          “Eurodollar Loans” shall mean each Loan designated as such by the respective Borrower
or Borrowers at the time of the incurrence thereof or conversion thereto.




          “Eurodollar Rate” shall mean, for any Interest Period, in the case of any Loan, the
greater of (x) 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 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




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Interest Period and (y) 1.75% per
annum. The determination of the Eurodollar Rate by the Administrative Agent shall be conclusive and
binding on the Borrowers absent manifest error.




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




          “Euros” and the designation “€” shall mean the currency introduced on January
1, 1999 at the start of the third stage of European economic and monetary union pursuant to the
Treaty (expressed in euros).




          “Event of Default” shall have the meaning provided in Section 10.




          “Excess Cash Flow” means, for any period, (a) net cash flow provided by (used in)
operating activities for such period as reported on the consolidated statements of cash flows of
the U.S. Borrower and its Consolidated Subsidiaries for such period delivered under Section 8.01
minus (b) the sum of, in each case to the extent not otherwise reducing net cash flow
provided by (used in) operating activities in such period, without duplication, (i) scheduled
principal payments and payments of interest in each case made in cash on Indebtedness for borrowed
money during such period (including for purposes hereof, sinking fund payments, payments in respect
of the principal components under capital leases and the like relating thereto), in each case other
than to the extent financed with equity proceeds, Equity Interests, asset sale proceeds, insurance
proceeds or the proceeds of Indebtedness (excluding Indebtedness under any revolving credit
facility), (ii) optional prepayments of Indebtedness for borrowed money (other than the Loans)
during such period in each case other than to the extent financed with equity proceeds, Equity
Interests, asset sale proceeds, insurance proceeds or the proceeds of Indebtedness (excluding
Indebtedness under any revolving credit facility); provided that in the case of any
revolving Indebtedness such repayment shall only be included in this clause (ii) to the extent that
such repayment results in a permanent reduction of the commitments thereunder, (iii) the aggregate
amount of all Capital Expenditures made by the U.S. Borrower and its Subsidiaries during such
period other than to the extent financed with equity proceeds, Equity Interests, asset sale
proceeds, insurance proceeds or the proceeds of Indebtedness (excluding Indebtedness under any
revolving credit facility) and (iv) other than to the extent financed with equity proceeds, Equity
Interests, asset sale proceeds, insurance proceeds or the proceeds of Indebtedness (excluding
Indebtedness under any revolving credit facility), cash sums expended for Investments pursuant to
Sections 9.05(vi), (vii), (viii), (xi), (xii) and (xv) (other than with respect to any amount
expended on such Investments through the use of the Available Amount) during such period.




          “Excess Cash Flow Payment Period” shall mean, with respect to any Excess Cash Payment
Date, the immediately preceding Fiscal Year of the U.S. Borrower commencing with the Fiscal Year
ending January 1, 2011.




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




          “Exchange Percentage” shall mean, as to each Lender, a fraction, expressed as a
decimal, in each case determined on the date of occurrence of a Sharing Event (after giving effect
to any actions to occur on, or promptly after, such date pursuant to Section 1.14(a), but before
giving effect to any actions to occur on such date pursuant to Section 1.14(b)) of which: (a) the
numerator shall be the sum of (i) the CL Percentage of such Lender (if a CL Lender) of (x) the
aggregate amount of Letter of Credit Outstandings (calculated by giving full effect to the proviso
to the definition of Stated Amount contained herein) and (y) the aggregate amount of Bank Guaranty
Outstandings (calculated by giving full effect to the proviso to the definition of Face Amount
contained herein) and (ii) the aggregate principal amount of the




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outstanding Term Loans of such
Lender; and (b) the denominator of which shall be the sum of (i) the sum of (x) the aggregate
amount of Letter of Credit Outstandings (calculated by giving full effect to the proviso to the
definition of Stated Amount contained herein) and (y) the aggregate amount of Bank Guaranty
Outstandings (calculated by giving full effect to the proviso to the definition of Face Amount
contained herein) and (ii) the aggregate principal amount of all outstanding Term Loans of all
Lenders.




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




          “Excluded Collateral” shall mean and include (i) each Principal Property of the U.S.
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 March 28, 2003) of any
Restricted Subsidiary of the U.S. Borrower (which Indebtedness (as so defined) is then held by the
U.S. Borrower or any Restricted Subsidiary) and (iii) Margin Stock owned or held by the U.S.
Borrower or any of its Subsidiaries; provided that (x) 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 and (y) as the term “Excluded Collateral” is used in any
Foreign Security Document, such term shall not include any Principal Property referred to in clause
(i) above.




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




          “Excluded Event” shall mean the taking of any action, or the adoption of any law, rule
or regulation, by any governmental authority which results in a deficiency that would otherwise
give rise to a Default or Event of Default under any of Sections 10.07, 10.08, 10.11(b), 10.11(c)
and/or 10.12; provided that (i) any such deficiency or default shall relate solely to a
Foreign Subsidiary of the U.S. Borrower (other than a Foreign Subsidiary organized under the laws
of Bermuda), its business or properties and the Credit Documents to which such Foreign Subsidiary
is a party and (ii) the aggregate Fair Market Value of all Property of all Foreign Subsidiaries
subject to any such deficiencies or defaults (including all Property which would have been Property
of the respective Foreign Subsidiaries if the actions described in Section 10.12 had not been
taken) shall not exceed $15,000,000.




          “Excluded Foreign Subsidiaries” shall mean Foreign Subsidiaries of the U.S. Borrower
organized in Qualified Non-U.S. Jurisdictions and listed on Part B of Schedule XIII;
provided that any Foreign Subsidiary listed on Part B of Schedule XIII which merges or
consolidates with or into any other Foreign Subsidiary of the U.S. Borrower that is a Qualified
Obligor organized in the jurisdiction of organization of such listed Foreign Subsidiary shall cease
to be an “Excluded Foreign Subsidiary” for purposes of this Agreement.




          “Excluded JV” means any Subsidiary of the U.S. Borrower in which the U.S. Borrower
owns less than 90% of the voting stock and which has been designated by the U.S. Borrower to the
Administrative Agent as an “Excluded JV”; provided that the aggregate Investments of the
Borrower and
their 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 Bank Guaranties” shall have the meaning provided in Section 2B.01(d).




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




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          “Existing Letters of Credit” shall have the meaning provided in Section 2A.01(d).




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




          “Existing Senior Notes Indentures” 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 U.S. Borrower’s 87/8% Senior Notes due 2011.




          “Existing 2013 Senior Notes” shall mean the U.S. Borrower’s 77/8% 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 U.S. Borrower, any U.S. 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 U.S. Borrower’s 137/8% 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 U.S. Borrower, any U.S. 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 U.S. 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 U.S. Borrower, any U.S. 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.




          “Face Amount” of each Bank Guaranty shall, at any time, mean the maximum amount
payable thereunder (in each case determined without regard to whether any conditions to payment
could then be met, but after giving effect to all previous payments made thereunder),
provided that (x) except as such term is used in Section 2B.02, the “Face Amount” of each
Non-Dollar Denominated Bank Guaranty shall be, on any date of calculation, the Dollar Equivalent of
the maximum amount payable in the applicable Alternative Currency thereunder (determined without
regard to whether any conditions to payment could then be met but after giving effect to all
previous payments made thereunder) and (y) except for purposes of Sections 2B.02 and 3.01(d), the
definition of Non-Dollar Denominated B/G Cushion Amount and in determining the respective
proportional indemnification liabilities of the Secured Creditors to the




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Collateral Agent and/or
the Pledgee under the applicable Security Documents, the Face Amount of any Non-Dollar Denominated
Bank Guaranty (as otherwise determined above) shall be increased (at each time the Face Amount
thereof is determined) by the Non-Dollar Denominated B/G Cushion Amount for such Non-Dollar
Denominated Bank Guaranty.




          “Facing Fee” shall have the meaning provided in Section 3.01(b).




          “Fair Market Value” shall mean, with respect to any asset, 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 U.S. Borrower or the
Subsidiary of the U.S. 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.




          “Fee Capped Foreign Subsidiary Guarantor” shall mean any Foreign Credit Party
organized under the laws of a jurisdiction in which (x) the guaranties and/or secured obligations
under the respective Credit Documents are not required by the laws of such jurisdiction to be
limited in any way and (y) the guaranties and/or secured obligations under the respective Credit
Documents have been voluntarily limited (at the request of such Foreign Credit Party) to reduce the
amount of registration, notorial or other fees, taxes or amounts payable in connection with the
recordation or perfection of the security interests purported to be created pursuant to the
relevant Security Documents.




          “Fees” shall mean all amounts payable pursuant to, or referred to in, Section 3.01.




          “First Priority Secured Leverage Ratio” shall mean, on any date of determination, the
ratio of (i) Consolidated First Priority Secured 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 First Priority Secured Leverage
Ratio shall be determined on a Pro Forma Basis.




          “Fiscal Quarter” means, 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” means the fiscal year of the U.S. Borrower and its Subsidiaries ending
on the Saturday nearest to December 31 of each calendar year. For purposes of this Agreement, any
particu-




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lar Fiscal Year shall be designated by reference to the calendar year in which the majority
of such Fiscal Year falls.




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




          “Foreign Credit Party Pledge Agreements” shall mean each agreement listed on Part A of
Schedule XII and each other pledge agreement entered into by a Foreign Credit Party pursuant to the
terms hereof covering promissory notes and Equity Interests and governed by the laws of the
jurisdiction in which such Foreign Credit Party is organized, in each case as the same may be
amended, restated, modified and/or supplemented from time to time in accordance with the terms
thereof.




          “Foreign Pension Plan” means any plan, fund (including, without limitation, any
superannuation fund) or other similar program established or maintained outside the United States
of America by the U.S. Borrower or any one or more of its Subsidiaries primarily for the benefit of
employees of the U.S. 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 Pledge Agreement” shall mean and include the Local Law Pledge Agreements and
the Foreign Credit Party Pledge Agreements.




          “Foreign Security Agreements” shall mean each security agreement listed on Part C of
Schedule XII, each Replacement Foreign Security Agreement and each other security agreement, pledge
agreement, mortgage, debenture, deed of charge, document and/or instrument entered into by a
Foreign Credit Party pursuant to the terms hereof covering tangible and intangible assets
(including receivables, contract rights, securities, inventory, equipment, real estate, leasehold
interests, vessels, insurances, and material patents, trademarks and other intellectual property
but excluding Excluded Collateral) owned by such Foreign Credit Party and governed by the laws of
the jurisdiction in which such Foreign Credit Party is organized, in each case as the same may be
amended, restated, modified and/or supplemented from time to time in accordance with the terms
thereof.




          “Foreign Security Document” shall mean each Security Document other than a U.S.
Security Document (including, without limitation, each Foreign Pledge Agreement and each Foreign
Security Agreement).




          “Foreign Security Document Acknowledgement and/or Amendment” shall mean each
acknowledgement and/or amendment dated as of the Amendment No. 3 Effective Date, executed and
delivered by each of the Credit Parties with respect to each Foreign Security Document to which it
is a party.




          “Foreign Subsidiaries Guaranty” shall mean the Foreign Subsidiaries Guaranty, dated as
of March 28, 2003, made by the Foreign Subsidiaries of the U.S. Borrower party thereto in favor of
the Administrative Agent, including any counterpart thereof and any other similar guaranty executed
and delivered by any Foreign Subsidiary of the U.S. Borrower pursuant to Section 8.11, in each
case, 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 Foreign Subsidiaries Guaranty as in effect on the
Amendment No. 3 Effective Date is attached hereto as Exhibit E-3.





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          “Foreign Subsidiaries Guaranty Acknowledgement” shall mean the acknowledgment, dated
as of the Amendment No. 3 Effective Date, executed and delivered by each Wholly-Owned Foreign
Subsidiary of the U.S. Borrower in the form of Exhibit E-2, which Foreign Subsidiaries
Guaranty Acknowledgment contain, among other things, (i) an acknowledgment of this Agreement and
the transactions contemplated hereby, (ii) an acknowledgement that the “Obligations” (as defined in
the Foreign Subsidiaries Guaranty) include all of the Obligations of the Bermuda Borrower under
this Agreement after giving effect to the Amendment No. 3 Effective Date, and (iii) an
acknowledgment that, after giving effect to the Amendment No. 3 Effective Date, the Foreign
Subsidiaries Guaranty shall remain in full force and effect in accordance with its terms.




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




          “Foreign Subsidiary Guarantor” shall mean each Foreign Subsidiary of the U.S. Borrower
(other than the Bermuda Borrower and any Non-Guarantor Subsidiary) which executes and delivers a
Foreign Subsidiaries Guaranty, unless and until such time as the respective Foreign Subsidiary
ceases to constitute a Foreign Subsidiary or is released from all of its obligations under its
Foreign Subsidiaries Guaranty in accordance with the terms and provisions thereof.




          “Fronting Fee” shall have the meaning provided in Section 3.01(d).




          “Guaranteed Creditors” shall mean and include each of the Agents, the Collateral
Agent, the Lenders, the Issuing Lenders, the Bank Guaranty Issuers and each Person (other than any
Credit Party or any of its Subsidiaries) party to an Interest Rate Protection Agreement or Other
Hedging Agreement with a Borrower and/or one or more of each Borrower’s Subsidiaries, to the extent
that such Person constitutes a Secured Creditor under the Security Documents.




          “Guarantors” shall mean and include each Borrower and each Subsidiary Guarantor.




          “Guaranty” shall mean and include each Borrower Guaranty and each Subsidiaries
Guaranty.




          “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.




          “Incremental Term Loan” shall have the meaning provided in Section 1.01(c).




          “Incremental Term Loan Borrower” shall mean (x) the U.S. Borrower, with respect to
U.S. Borrower Incremental Term Loans and (y) the Bermuda Borrower, with respect to Bermuda Borrower
Incremental Term Loans.




          “Incremental Term Loan Borrowing Date” shall mean, with respect to each Tranche of
Incremental Term Loans, each date on which Incremental Term Loans of such Tranche are incurred
pursuant to Section 1.01(c) and as otherwise permitted by Section 1.15.




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          “Incremental Term Loan Commitment” shall mean, for each Lender, any commitment to make
Incremental Term Loans provided by such Lender pursuant to Section 1.15, in such amount as agreed
to by such Lender in the respective Incremental Term Loan Commitment Agreement, as the same may be
(x) reduced from time to time or terminated pursuant to Sections 3.01 and/or 10 or (y) adjusted
from time to time as a result of assignments to and from such Lender pursuant to Sections 1.13
and/or 13.04(b).




          “Incremental Term Loan Commitment Agreement” shall mean each Incremental Term Loan
Commitment Agreement in the form of Exhibit I (appropriately completed) executed in
accordance with Section 1.15.




          “Incremental Term Loan Commitment Requirements” shall mean, with respect to any
provision of an Incremental Term Loan Commitment on a given Incremental Term Loan Borrowing Date,
the satisfaction of each of the following conditions on or prior to the effective date of the
respective Incremental Term Loan Commitment Agreement: (s) no Default or Event of Default then
exists or would result therefrom (for purposes of such determination, assuming the relevant Loans
in an aggregate principal amount equal to the full amount of Incremental Term Loan Commitments then
provided had been incurred, and the proposed Permitted Acquisition (if any) to be financed with the
proceeds of such Loans had been consummated, on such date of effectiveness) and all of the
representations and warranties contained herein and in the other Credit Documents are true and
correct in all material respects at such time (unless stated to relate to a specific earlier date,
in which case such representations and warranties shall be true and correct in all material
respects as of such earlier date); (t) calculations are made by the U.S. Borrower of compliance on
a Pro Forma Basis with the Total Leverage Ratio and the Consolidated Interest Coverage Ratio as of
the most recently ended Test Period set forth Section 9.12 (assuming (and immediately after) the
full utilization of the requested Incremental Term Loan Commitments and the consummation of the
proposed Permitted Acquisition (if any) to be financed with the proceeds of the Loans pursuant
thereto (as well as all other Permitted Acquisitions and Significant Asset Sales theretofore
consummated after the first day of the respective Calculation Period)) for the Calculation Period
most recently ended prior to the date of the requested Incremental Term Loan Commitments, as set
forth in a certificate by an Authorized Officer of the U.S. Borrower furnished to the
Administrative Agent on the date of such request, and such calculations shall show that, after
giving effect to the foregoing assumptions in this clause (t) and any additional Indebtedness being
incurred in connection therewith and the use of proceeds therefrom, (i) the U.S. Borrower would be
in compliance on a Pro Forma Basis with each of the Total Leverage Ratio and the Consolidated
Interest Coverage Ratio as set forth in Section 9.12 as at the last day of such Test Period and
(ii) the Senior Secured Leverage Ratio would have been less than or equal to 3.75 to 1.00 as at the
last day of such Test Period on a Pro Forma Basis; (u) the delivery by the U.S. Borrower to the
Administrative Agent of an officer’s certificate executed by an Authorized Officer of the U.S.
Borrower and certifying as to compliance with preceding clauses (s) and (t) and containing the
calculations required by clause (t); (v) the delivery by the U.S. Borrower to the Administrative
Agent of an acknowledgement in form and substance reasonably satisfactory to the Administrative
Agent and executed by each Guarantor (in the case of an Incremental Term Loan Commitment requested
by the Bermuda Borrower) or each U.S. Credit Party other than the U.S. Borrower (in the case of an
Incremental Term Loan
Commitment requested by the U.S. Borrower), as the case may be, acknowledging that such
Incremental Term Loan Commitment and all Loans subsequently incurred pursuant to such Incremental
Term Loan Commitment shall constitute (and be included in the definition of) “Guaranteed
Obligations” under each Guaranty of such Guarantor; (w) the delivery by the U.S. Borrower and its
Subsidiaries of such technical amendments, modifications and/or supplements to the respective
Security Documents as are reasonably requested by the Administrative Agent to ensure that the
additional Obligations to be incurred pursuant to the Incremental Term Loan Commitments are secured


by, and entitled to the benefits of, the relevant Security Documents, and each of the Lenders
hereby agrees to, and authorizes the Collateral Agent to enter






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into, any such technical amendments,
modifications and/or supplements; (x) the delivery by the U.S. Borrower to the Administrative Agent
of an opinion or opinions, in form and substance reasonably satisfactory to the Administrative
Agent, from counsel to the Credit Parties reasonably satisfactory to the Administrative Agent and
dated such date, covering such of the matters set forth in the opinions of counsel delivered to the
Administrative Agent on the Amendment No. 3 Effective Date as may be reasonably requested by the
Administrative Agent, and such other matters incident to the transactions contemplated thereby as
the Administrative Agent may reasonably request; (y) the delivery by the U.S. Borrower and the
other Credit Parties to the Administrative Agent of such other officers’ certificates, resolutions
and evidence of good standing as the Administrative Agent shall reasonably request; and (z) the
completion by the U.S. Borrower and the other Credit Parties of such other actions as the
Administrative Agent may reasonably request in connection with such Incremental Term Loan
Commitment, it being understood and agreed that the Administrative Agent may (in its sole
discretion) agree that the delivery of technical amendments, modifications and/or supplements to
the respective Security Documents pursuant to subclause (w) of the preceding sentence may occur
after the incurrence of Loans to be made pursuant to the respective Incremental Term Loan
Commitments (subject to a time frame to be agreed by the Administrative Agent), in which case said
subclause (w) will be deemed satisfied at the time of the incurrence of such Loans, so long as such
technical amendments, modifications and/or supplements to the respective Security Documents are
subsequently delivered within the time frame stipulated by the Administrative Agent.




          “Incremental Term Loan Lender” shall have the meaning provided in Section 1.15(b).




          “Incremental Term Loan Maturity Date” shall mean, for any Tranche of Incremental Term
Loans, the final maturity date set forth for such Tranche of Incremental Term Loans in the
respective Incremental Term Loan Commitment Agreement relating thereto, provided that the
final maturity date for all Incremental Term Loans of a given Tranche shall be the same date.




          “Incremental Term Loan Scheduled Repayment” shall have the meaning provided in Section
4.02(b)(iii).




          “Incremental Term Note” shall have the meaning provided in Section 1.05(a).




          “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.





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          “Indemnified Person” shall have the meaning provided in Section 13.01.




          “Individual CL Exposure” of any CL Lender shall mean, at any time, such CL Lender’s
applicable CL Percentage of the Aggregate CL Exposure.




          “Initial Borrowing Date” shall have the meaning provided in the Original Credit
Agreement.




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




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




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




          “Intercompany Subordination Agreement” shall mean the Intercompany Subordination
Agreement, dated as of March 28, 2003, made by the U.S. Borrower 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 (including, without
limitation, as modified by the Intercompany Subordination Agreement Acknowledgement). A copy of
the Intercompany Subordination Agreement as in effect on the Amendment No. 3 Effective Date is
attached hereto as Exhibit H-2.




          “Intercompany Subordination Agreement Acknowledgement” shall mean the acknowledgment
in the form of Exhibit H-1, dated as of the Amendment No. 3 Effective Date, executed and
delivered by each Credit Party and each other Subsidiary of the U.S. Borrower which is an obligee
or obligor with respect to any Intercompany Debt (other than those Non Wholly-Owned Subsidiaries
listed on Part D of Schedule XII).




          “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 ABL Collateral Agent, each Credit Party, each ABL 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 mean (i) with respect to any Eurodollar Loan, the interest
period applicable thereto, as determined pursuant to Section 1.09, and (ii) as to any investment of
the Credit-
Linked Deposits, the period commencing on the Amendment No. 3 Effective Date and ending on the
date that is one month thereafter and each successive one month period thereafter, provided
that (x) if any Interest Period for the Credit-Linked Deposits 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, and (y) if any Interest
Period for the Credit-Linked Deposits would otherwise expire on a day which is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day, although if any Interest
Period for the Credit-Linked Deposits 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.




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          “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.




          “Investment” shall have the meaning provided in the preamble to Section 9.05.




          “Issuing Lender” shall mean (i) if and to the extent it agrees to act as such, any
Agent (and any of such Agent’s affiliates and/or branches), (ii) any ABL Lender (and any of such
ABL Lender’s affiliates and/or branches) or any CL Lender (and any of such CL Lender’s affiliates
and/or branches) which at the request of the U.S. Borrower or the Bermuda Borrower and with the
consent of the Administrative Agent agrees, in such ABL Lender’s or CL Lender’s (or their
respective affiliate’s or branch’s) sole discretion, to become an Issuer Lender for the purpose of
issuing Letters of Credit pursuant to Section 2A and (iii) with respect to the Existing Letters of
Credit, the Lender or Original Lender (and any of such Lender’s or Original Lender’s affiliates
and/or branches) designated as the issuer thereof on Part A of Schedule XI shall be the Issuing
Lender thereof.




          “Italian Collateral Documents” shall have the meaning provided in Section 12.15(a)(i).




          “Judgment Currency” shall have the meaning provided in Section 13.22(a).




          “Judgment Currency Conversion Date” shall have the meaning provided in Section
13.22(a).




          “Landlord-Lender Agreement” shall mean each agreement between a landlord of each U.S.
Leasehold Property and the Collateral Agent entered into pursuant to the terms of this Agreement.




          “L/C Participant” shall have the meaning provided in Section 2A.04(a).




          “L/C Participation” shall have the meaning provided in Section 2A.04(a).




          “L/C Supportable Indebtedness” shall mean (i) obligations of the U.S. Borrower or its
Wholly-Owned Subsidiaries incurred in the ordinary course of business with respect to insurance
obligations and workers’ compensation, surety bonds and other similar statutory obligations, (ii)
obligations of the U.S. Borrower and its Wholly-Owned Subsidiaries under bank guaranties issued by
financial institutions in support of obligations of the U.S. Borrower and its Wholly-Owned
Subsidiaries otherwise permitted to exist pursuant to the terms of this Agreement and (iii) such
other obligations of the U.S. Borrower or any of its Wholly-Owned Subsidiaries as are reasonably
acceptable to the Administrative Agent and the respective Issuing Lender and otherwise permitted to
exist pursuant to the terms of this Agreement.




          “Lead Arranger” shall mean DBSI, Banc of America Securities LLC and Wells Fargo
Capital Markets LLC, each in its capacity as Joint Lead Arranger and Joint Book Runner.




          “Leasehold” of any Person shall mean all of 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 U.S. Borrower or any
of its Subsidiaries and for which Landlord-Lender Agreements shall be required pursuant to this
Agreement.




          “Lender” shall mean and include each financial institution with a Commitment listed on
Schedule I (as amended from time to time), as well as any Person that becomes a “Lender” hereunder




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pursuant to Sections 1.13, 1.15 and/or 13.04(b). Unless the context otherwise requires, each
reference in this Agreement to a Lender includes each lending office (including any Affiliate of
the respective Lender) of the respective Lender designated from time to time pursuant to Section
1.12.




          “Lender Default” shall mean (i) the wrongful refusal (which has not been retracted) of
a Lender to make available its portion of any Borrowing, to fund its portion of any unreimbursed
payment under Section 2A.04 or 2B.04 or (ii) a Lender having notified the Administrative Agent
and/or any Borrower that it does not intend to comply with its obligations under Section 1.01,
2A.03 or 2B.03 in circumstances where such non-compliance would constitute a breach of such
Lender’s obligations under the respective Section.




          “Letter of Credit” shall have the meaning provided in Section 2A.01(a).




          “Letter of Credit Outstandings” shall mean, at any time, the sum of (i) the aggregate
Stated Amount of all outstanding Letters of Credit which have not 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 2A.03(a).




          “LIBOR Rate” shall mean, for any Interest Period with respect to the investment of the
Credit-Linked Deposits, 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
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 then outstanding amount of
the Credit-Linked Deposits 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.




          “Lien” shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, 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, and
any lease having substantially the same effect as the foregoing).




          “Loan” shall mean each Tranche B-1 Term Loan, each Tranche C-1 Term Loan and each
Incremental Term Loan.




          “Local Law Pledge Agreements” shall mean the local law pledge agreements listed on
Part B of Schedule XII and any other pledge agreement entered into by a Credit Party pursuant to
this Agreement (x) covering promissory notes of, and/or Equity Interests in, one or more Persons
organized under the laws of a different jurisdiction from the jurisdiction of organization of such
Credit Party and (y) governed by the laws of the jurisdiction or jurisdictions in which the Person
or Persons whose promissory notes or Equity Interests are being pledged is (or are) organized, in
each case as the same may be amended, restated, modified and/or supplemented from time to time in
accordance with the terms thereof.





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          “Majority Lenders” of any Tranche shall mean those Non-Defaulting Lenders which would
constitute the Required Lenders under, and as defined in, this Agreement if all outstanding
Obligations of the other Tranches under this Agreement were repaid in full and all Commitments with
respect thereto were terminated.




          “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 U.S. 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; provided that the occurrence of
an Excluded Event shall not constitute a “Material Adverse Effect” for purposes of this definition.




          “Material Foreign Subsidiary” shall mean, at any time, any Foreign Subsidiary of the
U.S. Borrower the net book value of the assets of which equals or exceeds $5,000,000 at such time;
provided that for purposes of (and only of) Section 8.01(h), the term “Material Foreign
Subsidiary” shall mean, at any time, any Foreign Subsidiary of the U.S. Borrower the net book value
of the assets of which equals or exceeds $10,000,000 at such time.




          “Material Indebtedness” shall mean any Indebtedness of the U.S. Borrower or any of its
Subsidiaries with an aggregate principal amount in excess of $25,000,000.




          “Maturity Date” shall mean (i) with respect to Tranche B-1 Term Loans, the Tranche B
1/C 1 Term Loan Maturity Date, (ii) with respect to Tranche C-1 Term Loans, the Tranche B-1/C-1
Term Loan Maturity Date, (iii) with respect to Incremental Term Loans of a given Tranche, the
respective Incremental Term Loan Maturity Date therefor, and (iv) with respect to the CL Tranche,
the CL Maturity Date.




          “Maximum Incremental Term Loan Commitment Amount” shall mean $300,000,000.




          “Minimum Applicable Facing” shall mean $500.




          “Minimum Applicable Fronting” shall mean $500.




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




          “Mortgage” shall mean each mortgage, deed of trust or deed to secure debt required to
be delivered with respect to any Real Property pursuant to the terms of this Agreement (including,
after the
execution and delivery thereof, each Additional Mortgage covering a Mortgaged Property),
together with any assignment of leases and rents to be executed in connection therewith, in each
case as the same may be amended, modified and/or supplemented from time to time in accordance with
the terms hereof and thereof.




          “Mortgage Amendment” shall have the meaning provided in Section 8.11(k)(ii).





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          “Mortgage Policy” shall mean each mortgage title insurance policy (and all
endorsements thereto) for each Mortgaged Property required to be delivered pursuant to this
Agreement.




          “Mortgaged Property” shall mean each Real Property owned by the U.S. Borrower or any
of its Subsidiaries and required to be mortgaged pursuant to this Agreement (including, after the
execution and delivery of any Additional Mortgage covering Real Property, the respective Additional
Mortgaged Property).




          “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 U.S. Borrower or a Subsidiary of the U.S. 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 U.S. Borrower, a Subsidiary of the U.S. Borrower or an ERISA Affiliate
maintained, contributed to or had an obligation to contribute to such plan.




          “Net Cash Proceeds” shall mean, for any event requiring a reduction of the Total
Incremental Term Loan Commitment and/or Total Credit-Linked Commitment and/or repayment of Term
Loans pursuant to Section 3.03 or 4.02, 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 Sale Proceeds” shall mean for any sale or other disposition of assets, the gross
cash proceeds (including any cash received by way of deferred payment pursuant to a promissory
note, receivable or otherwise, but only as and when received) received from such sale or other
disposition of assets, net of (i) reasonable transaction costs (including, without limitation, any
underwriting, brokerage or other customary selling commissions, reasonable legal, advisory and
other fees and expenses (including title and recording expenses), associated therewith and sales,
VAT and transfer taxes arising therefrom), (ii) payments of unassumed liabilities relating to the
assets sold or otherwise disposed of at the time of, or within 30 days after, the date of such sale
or other disposition, (iii) the amount of such gross cash proceeds required to be used to
permanently repay any Indebtedness (other than Indebtedness of the Lenders pursuant to this
Agreement, Indebtedness of the ABL Lenders under the ABL Credit Documents and Indebtedness under
“Notes Obligations” (as defined in the Intercreditor 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 U.S. Borrower consolidated group or any Subsidiary of the U.S.
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 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) (v) ;
provided, however, that such gross proceeds shall not include any portion of such
gross cash proceeds which the U.S. Borrower determines in good faith should be reserved for
post-closing adjustments (to the extent the U.S. 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
U.S. Borrower or any of its Subsidiaries shall constitute Net Sale Proceeds on such date received
by the U.S. Borrower and/or any of its Subsidiaries from such sale or other disposition.




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




          “Non-Dollar Denominated Bank Guaranty” shall mean all Bank Guaranties other than
Dollar Denominated Bank Guaranties.




          “Non-Dollar Denominated Bank Guaranty Outstandings” shall mean all Bank Guaranty
Outstandings other than Dollar Denominated Bank Guaranty Outstandings.




          “Non-Dollar Denominated B/G Cushion Amount” shall mean, at any time with respect to
any Non-Dollar Denominated Bank Guaranty, an amount equal to 5% of the Face Amount of such
Non-Dollar Denominated Bank Guaranty, with such Face Amount determined for this purpose in
accordance with the definition thereof contained herein without giving effect to clause (y) of the
proviso thereto.




          “Non-Dollar Denominated Letters of Credit” shall mean all Letters of Credit other than
Dollar Denominated Letters of Credit.




          “Non-Dollar Denominated Letter of Credit Outstandings” shall mean all Letter of Credit
Outstandings other than Dollar Denominated Letter of Credit Outstandings.




          “Non-Dollar Denominated L/C Cushion Amount” shall mean, at any time with respect to
any Non-Dollar Denominated Letter of Credit, an amount equal to 5% of the Stated Amount of such
Non-Dollar Denominated Letter of Credit, with such Stated Amount determined for this purpose in
accordance with the definition thereof contained herein without giving effect to clause (y) of the
proviso thereto.




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




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




          “Non-U.S. Dole Group” shall mean the Consolidated Subsidiaries of the U.S. 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 Tranche B-1 Term Note, each Tranche C-1 Term Note and each
Incremental Term Note.




          “Notice of Borrowing” shall have the meaning provided in Section 1.03(a).




          “Notice of Conversion/Continuation” shall have the meaning provided in Section 1.06.




          “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 designate to
the U.S. Borrower and the Lenders from time to time.




          “Obligation Currency” shall have the meaning provided in Section 13.22(a).





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          “Obligations” shall mean all amounts, direct or indirect, contingent or absolute, of
every type or description, and at any time existing, owing to any Agent, the Collateral Agent, any
Issuing Lender, any Bank Guaranty Issuer or any Lender pursuant to the terms of this Agreement or
any other Credit Document.




          “Original Agent” shall mean each “Agent” under, and as defined in, the Original Credit
Agreement.




          “Original Credit Agreement” shall have the meaning provided in the first WHEREAS
clause of this Agreement.




          “Original Lenders” shall mean the Lenders under, and as defined in, the Original
Credit Agreement with outstanding Original Loans on the Amendment No. 3 Effective Date (immediately
prior to giving effect thereto).




          “Original Loan” shall mean each “Loan” under, and as defined in, the Original Credit
Agreement.




          “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.




          “Participating Member State” shall mean, at any time, any member state of the European
Union which has adopted the Euro as its lawful currency at such time.




          “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 to the U.S. Borrower and the Lenders from time.




          “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 9.04(b)(vi).




          “Permitted Acquisition” shall mean the acquisition by the U.S. Borrower or any of its
Subsidiaries of assets constituting a business, division or product line of any Person, not already
a Subsidiary of the U.S. 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 U.S.
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) on a Pro Forma
Basis for such acquisition, the U.S. Borrower would be in compliance with each of the financial
covenants set forth in Section 9.12 as of and for most recently completed Test Period prior to such
date, (D) immediately after giving effect to such acquisition and the payment of consideration
payable by the U.S. Borrower and its Subsidiaries, the U.S. Borrower would have not less than
$30,000,000 of available unused revolving commitments (after giving effect to borrowing base limitations) under the ABL Credit Agreement or other working capital facilities, (E)
the aggregate amount expended by the U.S. 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 U.S. Borrower), as
determined in good faith by the U.S. Borrower, does not exceed $350,000,000 and (F) the U.S.
Borrower shall have delivered to the Adminis-




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trative Agent not later than the date of consummation
of any such acquisition, a certificate executed by an Authorized Officer of the U.S. Borrower
stating that such acquisition is a “Permitted Acquisition” and containing a calculation
demonstrating compliance with the requirements set forth in clauses (C), (D) and (E) of this
definition.




          “Permitted Business” shall mean any business which (i) is the same, similar, ancillary
or reasonably related to the business in which the U.S. Borrower or any of its Subsidiaries is
engaged on the Amendment No. 3 Effective Date or (ii) is conducted by an Acquired Entity or
Business acquired pursuant to a Permitted Acquisition and which does not qualify as a “Permitted
Business” pursuant to preceding clause (i), so long as (x) such business represents an immaterial
portion of the businesses acquired pursuant to such Permitted Acquisition and (y) such business is
sold or otherwise disposed of as soon as reasonably practicable following the consummation of such
Permitted Acquisition (but, in any event, within one year following such Permitted Acquisition).




          “Permitted Encumbrances” 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 U.S. 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 9.03.




          “Permitted Refinancing Indebtedness” shall mean any Indebtedness of the U.S. 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 U.S.
Borrower that is guaranteed by the U.S. Guarantors may be refinanced with Indebtedness that is
secured by junior Liens on the Collateral of the U.S. 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 8.01(a) or (b) 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, refi-




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nancing, 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,
limited liability company, association, trust or other enterprise or any government or political
subdivision or any agency, department or instrumentality thereof.




          “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 U.S. Borrower or a Subsidiary of the U.S. Borrower or an ERISA Affiliate, and
each such plan for the five year period immediately following the latest date on which the U.S.
Borrower, or a Subsidiary of the U.S. Borrower or an ERISA Affiliate maintained, contributed to or
had an obligation to contribute to such plan.




          “Pledge Agreement Collateral” shall mean all U.S. Pledge Agreement Collateral and all
other Equity Interests or other property similar to that pledged pursuant to the U.S. Pledge
Agreement which is pledged pursuant to one or more Foreign Pledge Agreements, Foreign Security
Agreements or Additional Security Documents.




          “Pledge Agreements” shall mean the U.S. Pledge Agreement and each Foreign Pledge
Agreement.




          “Preferred Equity,” as applied to the Equity Interests of any Person, means Equity
Interests of such Person (other than common stock 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 Equity
Interests of any other class of such Person.




          “Prime Lending Rate” shall mean the rate which DBAG (or another bank of recognized
standing reasonably selected by 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. DBAG 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 Total Leverage
Ratio, Senior Secured Leverage Ratio or Consolidated Interest Coverage Ratio, the calculation of
Consolidated EBITDA, Consolidated Net Debt, Consolidated Interest Expense and Consolidated Senior
Secured Net Debt as used therein shall be made after giving effect on a pro forma basis to any
Permitted




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Acquisition, Significant Asset Sale or incurrence or repayment of Material Indebtedness
then being consummated as well as any other Permitted Acquisition, Significant Asset Sale or
incurrence or repayment of Material Indebtedness consummated (i) for purposes of calculating
compliance with each of the financial covenants set forth in Section 9.12, during the relevant Test
Period or (ii) for purposes of calculating the Total Leverage Ratio, Senior Secured Leverage Ratio
or Consolidated Interest Coverage Ratio for any other purpose hereunder, after the first day of the
relevant Test Period or Calculation Period, as the case may be, and on or prior to the date of the
required determination of the Total Leverage Ratio, Senior Secured Leverage Ratio and/or
Consolidated Interest Coverage Ratio, as the case may be, as if same had occurred on the first day
of the respective Test Period or Calculation Period, as the case may be, in each case, taking into
account, in the case of any Permitted Acquisition, factually supportable and identifiable cost
savings and expenses which would otherwise be accounted for as an adjustment pursuant to Article 11
of Regulation S-X under the Securities Act, as if such cost savings or expenses were realized on
the first day of the respective period.




          “Projections” shall mean detailed projected consolidated financial statements of the
U.S. Borrower and its Consolidated Subsidiaries certified by the Chief Financial Officer of the
U.S. Borrower for the three 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 U.S. Borrower (which may be
guaranteed on a subordinated basis by any of the U.S. 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 Term
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, 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
8.01(a) or (b) would have been less than or equal to 3.75 to 1.00 on a Pro Forma Basis, secured
solely by Liens on the Collateral of the U.S. 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 U.S. Borrower.




          “Qualified Jurisdictions” shall mean and include the United States, Bermuda and each
other jurisdiction identified on Schedule XVII hereto, in each case including any states, provinces
or other similar local units therein. Furthermore, from time to time after the Amendment No. 3
Effective Date, the U.S. Borrower may request (by written notice to, and following consultation
with, the Administrative Agent) that one or more additional jurisdictions be added to the list of
Qualified Jurisdictions. In such
event, such jurisdictions shall be added to (and thereafter form part of) the list of
Qualified Jurisdictions so long as, in each case, the respective jurisdiction to be added is a
jurisdiction in which the U.S. Borrower and/or any of its Subsidiaries conducts business on the
Amendment No. 3 Effective Date or is otherwise reasonably satisfactory to the Administrative Agent
and so long as the U.S. Borrower has furnished opinions of counsel, in each case from counsel, and
in form and substance, reasonably satisfactory to the Administrative Agent, concluding that
Subsidiaries of the U.S. Borrower organized under the laws of such jurisdiction may execute and
deliver a Foreign Subsidiaries Guaranty, the Intercompany Subordination Agreement and such Security
Documents as may be satisfactory to the Collateral Agent and that,







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in accordance with the laws of
the respective jurisdiction and subject to customary exceptions, such Credit Documents shall
constitute the legal, valid and binding obligations, enforceable in accordance with their terms,
and (in the case of the Security Documents) create valid and perfected security interests under
applicable law.




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




          “Qualified Non-U.S. Obligors” shall mean each Foreign Credit Party which (x) is a
Wholly-Owned Subsidiary of the U.S. Borrower organized under the laws of a Qualified Non-U.S.
Jurisdiction, (y) has provided a full and unconditional guaranty (unlimited in amount) of all
Guaranteed Obligations (as defined in the Foreign Subsidiaries Guaranty) pursuant to a Foreign
Subsidiaries Guaranty and (z) has executed the relevant Security Documents in accordance with the
requirements of Sections 5, 8.11 and/or 9.14 of the Original Credit Agreement or Sections 5, 8.11
and/or 9.11 hereof securing all such Guaranteed Obligations, provided that (i) any Fee
Capped Foreign Subsidiary Guarantor shall be deemed to be a Qualified Non-U.S. Obligor for purposes
of Sections 9.02(viii), (ix) and (xi) and Sections 9.05(vi) and (viii) only (and only said
Sections), so long as such Fee Capped Foreign Subsidiary Guarantor shall at all times be in
compliance with the requirements of Section 8.11(i), (ii) any Fee Capped Foreign Subsidiary
Guarantor shall be deemed to be a Qualified Non-U.S. Obligor for purposes of Section 8.13(d), so
long as (I) governmental approvals are required to be obtained to transfer the Equity Interests of
such Fee Capped Foreign Subsidiary Guarantor to a Qualified Non-U.S. Obligor (determined without
regard to clauses (i), (ii), (iii) and (iv) of this proviso) and the U.S. Borrower or such
Subsidiary Guarantor is using reasonable efforts to obtain such approvals or (II) the transfer of
the Equity Interests of such Fee Capped Foreign Subsidiary Guarantor to a Qualified Non-U.S.
Obligor (determined without regard to clauses (i), (ii), (iii) and (iv) of this proviso) would give
rise to material and adverse tax consequences to the U.S. Borrower or such Subsidiary, (iii) Dole
Korea, Ltd. shall be deemed to be a Qualified Non-U.S. Obligor for purposes of Sections 8.13(d) and
9.01(b) (and only said Sections), (iv) notwithstanding the provision of a limited guaranty by the
Excluded Bermuda Insurance Companies, each of the Excluded Bermuda Insurance Companies shall be
deemed to be a “Qualified Non-U.S. Obligor” for all purposes of this Agreement (other than Sections
8.13(d) and 9.01(b) for which it is understood such Persons shall not constitute “Qualified
Non-U.S. Obligors”) and (v) any Qualified Non-U.S. Obligor (including any deemed as such pursuant
to preceding clauses (i), (ii), (iii) and (iv)) shall cease to constitute same at such time, if
any, as such Person ceases to be a Wholly-Owned Subsidiary of the U.S. Borrower.




          “Qualified Obligors” shall mean each Qualified U.S. Obligor and each Qualified Non
U.S. Obligor.




          “Qualified Preferred Stock” shall mean any Preferred Equity of the U.S. 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 U.S. 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 Tranche B-1/C-1 Maturity Date.




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          “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 U.S. 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.




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




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




          “Rabobank” shall mean Rabobank International in its individual capacity, and any
successor corporation thereto by merger, consolidation or otherwise.




          “Real Property” of any Person shall mean all of 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 U.S. Borrower or any of its
Subsidiaries of any insurance or condemnation proceeds payable (i) by reason of theft, physical
destruction or damage or any other similar event with respect to any properties or assets of the
U.S. Borrower or any of its Subsidiaries, (ii) by reason of any condemnation, taking, seizing or
similar event with respect to any properties or assets of the U.S. Borrower or any of its
Subsidiaries and (iii) under any policy of insurance required to be maintained under Section 8.03.




          “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 and the application of the proceeds therefrom to
(i) repay in full the Tranche B Term Loans (in the case of the proceeds of the Tranche B-1 Term
Loans), (ii) repay in full the Tranche C Term Loans (in the case of the proceeds of the Tranche C-1
Term Loans) and (iii) redeem all of the outstanding Existing 2011 Senior Notes, the execution and
delivery of Amendment No. 3 and the related amendment to the ABL Facility.




          “Register” shall have the meaning provided in Section 13.17.




          “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 to time in effect and any successor to all or any 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 any portion thereof.






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




          “Relevant Guaranteed Obligations” shall mean (i) in the case of the U.S. Borrower, (x)
the principal and interest on each Tranche C-1 Term Note and each Incremental Term Note (in each
case) issued by the Bermuda Borrower to each Lender, and each Tranche C-1 Term Loan and each
Bermuda Borrower Incremental Term Loan made, under this Agreement, all reimbursement obligations
and Unpaid Drawings with respect to each Letter of Credit issued for the account of the Bermuda
Borrower and all reimbursement obligations and Unreimbursed Payments with respect to each Bermuda
Borrower Bank Guaranty, 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) and
liabilities (including, without limitation, indemnities, fees and interest thereon) of the Bermuda
Borrower to each Lender, each Agent, each Issuing Lender, each Bank Guaranty Issuer and the
Collateral Agent now existing or hereafter incurred under, arising out of or in connection with
this Agreement or any other Credit Document and the due performance and compliance by the Bermuda
Borrower with all the terms, conditions and agreements contained in the Credit Documents to which
it is a party and (y) all obligations (including obligations which, but for the automatic stay
under Section 362(a) of the Bankruptcy Code, would become due) and liabilities of the Bermuda
Borrower or any other Subsidiary of the Bermuda Borrower owing under any Interest Rate Protection
Agreement and any Other Hedging Agreement entered into by the Bermuda Borrower or any other
Subsidiary of the U.S. Borrower with any Secured Hedge Counterparty so long as such Secured Hedge
Counterparty participates in such Interest Rate Protection Agreement or Other Hedging Agreement,
and their subsequent assigns, if any, whether now in existence or hereafter arising, and the due
performance and compliance with all terms, conditions and agreements contained therein and (ii) in
the case of the Bermuda Borrower, all obligations (including obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and liabilities of
any Foreign Subsidiary of the U.S. Borrower (other than the Bermuda Borrower) owing under any
Interest Rate Protection Agreement and any Other Hedging Agreement entered into by any such Foreign
Subsidiary of the U.S. Borrower with any Secured Hedge Counterparty so long as such Secured Hedge
Counterparty participates in such Interest Rate Protection Agreement or Other Hedging Agreement,
and their subsequent assigns, if any, whether now in existence or hereafter arising, and the due
performance and compliance with all terms, conditions and agreements contained therein.




          “Relevant Guaranteed Party” shall mean (i) with respect to the U.S. Borrower, the
Bermuda Borrower and each Subsidiary of the U.S. Borrower party to any Interest Rate Protection
Agreement or Other Hedging Agreement with any Secured Creditor and (ii) with respect to the Bermuda
Borrower, each Foreign Subsidiary of the U.S. Borrower (other than the Bermuda Borrower) party to
any Interest Rate Protection Agreement or Other Hedging Agreement with any Secured Creditor.




          “Replaced Lender” shall have the meaning provided in Section 1.13.




          “Replacement Foreign Security Agreements” shall mean the amended and restated and/or
replacement security agreements, documents and instruments executed and delivered by the Foreign
Credit Parties listed on Part G of Schedule XII securing all of the relevant obligations (including
such Foreign Credit Party’s guaranty obligations with respect to the Letters of Credit and Bank
Guaranties issued for the account of the Bermuda Borrower and the Tranche C-1 Term Loans and the Bermuda
Borrower Incremental Term Loans).




          “Replacement Lender” shall have the meaning provided in Section 1.13.





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          “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 8.11(h).




          “Required Lenders” shall mean Non-Defaulting Lenders, the sum of whose outstanding
principal of Term Loans and Credit-Linked Commitments (or after the termination thereof,
outstanding Individual CL Exposures) as of any date of determination represent greater than 50% of
the sum of all outstanding principal of Term Loans and the sum of all Credit-Linked Commitments of
all Non-Defaulting Lenders at such time (or, after the termination thereof, the sum of the then
total Individual CL Exposures of all Non-Defaulting Lenders at such time); provided that,
for purposes of this definition, at any time after the Amendment No. 3 Effective Date, (I) a Voting
Participant shall be deemed to be a “Lender” holding the portion of the Credit-Linked Commitment
(or, after the termination thereof, outstanding Individual CL Exposure), the Incremental Term Loan
Commitment and the outstanding Term Loans of any Lender (other than a Defaulting Lender) in which
it purchased a participation from such Lender (and to have the voting rights of such Lender with
respect to each such Tranche) and (II) a Lender (other than a Defaulting Lender) which has sold a
participation in a portion of its Credit-Linked Commitment (and related Obligations), Incremental
Term Loan Commitment or outstanding Term Loans to a Voting Participant shall be deemed to hold a
Credit-Linked Commitment (or, after the termination thereof, outstanding Individual CL Exposure),
Incremental Term Loan commitment or outstanding Term Loans, as the case may be, in each case, as
reduced by the amount of the participations therein sold to a Voting Participant.




          “Restatement Effective Date” shall mean April 12, 2006.




          “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.




          “Retained Excess Cash Flow Amount” shall initially be $0, which amount shall be (A)
increased on each Excess Cash Payment Date so long as any repayment required pursuant to
Section 4.02(f) has been made, by an amount equal to the Excess Cash Flow for the immediately
preceding Excess Cash Flow Payment Period multiplied by a percentage equal to 100%
minus the Applicable Prepayment Percentage, and (B) reduced on each Excess Cash
Payment Date where Excess Cash Flow for the immediately preceding Excess Cash Flow Payment Period
is a negative number, by such amount.




          “Returns” shall have the meaning provided in Section 7.18.




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




          “Sale-Leaseback Transaction” shall have the meaning provided in the Original Credit
Agreement.




          “Scheduled Investment Termination Date” shall mean, when referring to the
Credit-Linked Deposits on deposit in the Credit-Linked Deposit Account, the date agreed to by the
Borrowers and the Administrative Agent from time to time, provided that if no such
agreement shall be reached, the Scheduled Investment Termination Date shall be the last day of the
then current Interest Period applicable to the Credit-Linked Deposits.





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          “Scheduled Repayment” shall mean any Tranche B-1 Term Loan Scheduled Repayment, any
Tranche C-1 Term Loan Scheduled Repayment and/or any Incremental Term Loan Scheduled Repayment of
any Tranche, as the context may require.




          “Scotia Capital” shall mean The Bank of Nova Scotia, in its individual capacity, and
any successor corporation thereto by merger, consolidation or otherwise.




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




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




          “Secured Creditors” shall have the meaning provided in the respective Security
Documents.




          “Secured Hedge Counterparties” shall mean, with respect to any Interest Rate
Protection Agreement or Other Hedging Agreement, (x) any Lender or any affiliate thereof (even if
such Lender subsequently ceases to be a Lender under this Agreement for any reason), (y) any ABL
Lender or any affiliate thereof (even if such ABL Lender ceases to be a Lender under the ABL Credit
Agreement for any reason) or (z) to the extent any such Interest Rate Protection Agreement or Other
Hedging 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).




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




          “Security Agreement Collateral” shall mean all collateral in which any security
interest is granted pursuant to the Security Agreements.




          “Security Agreements” shall mean the U.S. Security Agreement and each Foreign Security
Agreement.




          “Security Documents” shall mean and include each of the U.S. Security Agreement, the
U.S. Pledge Agreement, each Mortgage, each Foreign Security Agreement, each Foreign Pledge
Agreement and, after the execution and delivery thereof, each Additional Security Document
(including each Additional Mortgage).




          “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 for which financial statements are available
pursuant to Section 8.01(a) or (b); 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.




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





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          “Sharing Event” shall mean (i) the occurrence of any Event of Default with respect to
any Borrower pursuant to Section 10.05, (ii) the declaration of the termination of any
Credit-Linked Commitment or Incremental Term Loan Commitment, or the acceleration of the maturity
of any Loans, in each case pursuant to the last paragraph of Section 10 or (iii) the failure of
either Borrower to pay any principal of, or interest on, Loans of any Tranche, any Letter of Credit
Outstandings or any Bank Guaranty Outstandings on the relevant Maturity Date.




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




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




          “Specified Default” shall mean any Default under either of Sections 10.01 or 10.05.




          “Specified Indebtedness” shall mean, collectively, (i) the Existing Senior Notes, (ii)
any Qualified Indebtedness incurred pursuant to Section 9.04(a) and (iii) any Permitted Refinancing
Indebtedness in respect of the foregoing.




          “Standby Letter of Credit” shall have the meaning provided in Section 2A.01(a).




          “Stated Amount” of each Letter of Credit shall, at any time, mean 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 (x) except as such term is used in Section 2A.02, the “Stated Amount” of each
Non-Dollar Denominated Letter of Credit shall be, on any date of calculation, the Dollar Equivalent
of the maximum amount available to be drawn in such Alternative Currency thereunder (determined
without regard to whether any conditions to drawing could then be met but after giving effect to
all previous drawings made thereunder) and (y) except for purposes of Sections 2A.02 and 3.01(b),
the definition of Non-Dollar Denominated L/C Cushion Amount and in determining the respective
proportional indemnification liabilities of the Secured Creditors to the Collateral Agent and/or
the Pledgee under the applicable Security Documents, the Stated Amount of any Non-Dollar
Denominated Letter of Credit (as otherwise determined above) shall be increased (at each time the
Stated Amount thereof is determined) by the Non-Dollar Denominated L/C Cushion Amount for such
Non-Dollar Denominated Letter of Credit.




          “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.




          “Subsidiaries Guaranty” shall mean and include the U.S. Subsidiaries Guaranty, the
Foreign Subsidiaries Guaranty and any other guaranty executed and delivered by any Subsidiary of
the U.S. Borrower pursuant to any of Section 8.11.





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          “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.




          “Subsidiary Guarantor” shall mean each Subsidiary of the U.S. Borrower that executes
and delivers any Subsidiaries Guaranty, unless and until such time as the respective Subsidiary is
released from all of its obligations under any relevant Subsidiaries Guaranty in accordance with
the terms and provisions thereof.




          “Supermajority Lenders” of any Tranche shall mean those Non-Defaulting Lenders which
would constitute the Required Lenders under, and as defined in, this Agreement if (x) all
outstanding Obligations of the other Tranches under this Agreement were repaid in full and all
Commitments with respect thereto were terminated and (y) the percentage “50%” contained therein
were changed to “667/8%.”




          “Syndication Agent” shall have the meaning provided in the first paragraph of this
Agreement and shall include any successor to the Syndication Agent appointed pursuant to Section
12.10.




          “Syndication Date” shall mean the earlier of (i) the 30th day following the Amendment
No. 3 Effective Date and (ii) the date upon which the Agents determine (and notify the U.S.
Borrower and the Lenders) that the primary syndication of the Tranche B-1 Term Loans, the Tranche
C-1 Term Loans and the CL Tranche (and resultant addition of Persons as Lenders pursuant to Section
13.04(b)) has been completed.




          “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 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; provided that, for purposes of this Agreement, the
term “Synthetic Lease” shall not include the lease arising pursuant to the Sale-Leaseback
Transaction.




          “Taxes” shall have the meaning provided in Section 4.04(a).




          “Term Loans” shall mean and include Tranche B-1 Term Loans, Tranche C-1 Term Loans and
each Incremental Term Loan.




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




          “TL Priority Collateral” means all “TL Priority Collateral” as defined in the
Intercreditor Agreement.




          “TL Repayment Percentage” of any Tranche of Term Loans at any time shall be a fraction
(expressed as a percentage) (x) the numerator of which is the aggregate principal amount of
outstanding Term Loans of such Tranche and (y) the denominator of which is the sum of the aggregate
principal amount of all outstanding Term Loans at such time.





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          “Total Commitment” shall mean, at any time, the sum of the Total Tranche B Term Loan
Commitment, the Total Tranche C Term Loan Commitment, the Total Incremental Term Loan Commitment
and the Total Credit-Linked Commitment.




          “Total Credit-Linked Commitment” shall mean, at any time, the sum of the Credit-Linked
Commitments of each of the CL Lenders at such time.




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




          “Total Unutilized Credit-Linked Commitment” shall mean, at any time, an amount equal
to the remainder of (x) the Total Credit-Linked Commitment as in effect at such time less (y) the
Aggregate CL Exposure at such time.




          “Trade Letter of Credit” shall have the meaning set forth in Section 2A.01(a).




          “Tranche” shall mean the respective facilities and commitments utilized in making
Loans and issuing Letters of Credit and Bank Guaranties hereunder (i.e., whether Tranche
B-1 Term Loans, Tranche C-1 Term Loans, the CL Tranche or Incremental Term Loans made pursuant to
one or more tranches designated pursuant to the respective Incremental Term Loan Commitment
Agreements in accordance with the relevant requirements specified in Section 1.15);
provided that in the circumstances contemplated by Section 1.15(c), Incremental Term Loans
may be made part of a then existing Tranche of Term Loans. On the Amendment No. 3 Effective Date
there shall be three Tranches hereunder, namely (i) the CL Tranche, (ii) the Tranche B-1 Term Loans
and related commitments and (iii) the Tranche C-1 Term Loans and related commitments.




          “Tranche B Term Loans” shall mean all Tranche B Term Loans outstanding on the
Amendment No. 3 Effective Date immediately prior to the borrowing of the Tranche B-1 Term Loans and
the Tranche C-1 Term Loans.




          “Tranche B-1 Closing Fee” shall have the meaning provided in Section 1.01(a).




          “Tranche B-1 Term Loan Commitment” shall mean, with respect to each Lender, the amount
set forth opposite such Lender’s name in Schedule I directly below the column entitled “Tranche B-1
Term Loan Commitment,” as the same may be terminated pursuant to Sections 3.02, 3.03 and/or 10.




          “Tranche B-1 Term Loan Scheduled Repayment” shall have the meaning provided in Section
4.02(b)(i).




          “Tranche B-1 Term Loan” shall have the meaning provided in Section 1.01(a).




          “Tranche B-1 Term Note” shall have the meaning provided in Section 1.05(a).




          “Tranche B-1/C-1 Term Loan Maturity Date” shall mean 2017.




          “Tranche C Term Loans” shall mean all Tranche C Term Loans (as defined in the Original
Credit Agreement) outstanding on the Amendment No. 3 Effective Date immediately prior to the
borrowing of the Tranche B-1 Term Loans and the Tranche C-1 Term Loans.





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          “Tranche C-1 Closing Fee” shall have the meaning provided in Section 1.01(b).




          “Tranche C-1 Term Loan” shall mean have the meaning provided in Section 1.01(b).




          “Tranche C-1 Term Loan Commitment” shall mean, with respect to each Lender, the amount
set forth opposite such Lender’s name in Schedule I directly below the column entitled “Tranche C-1
Term Loan Commitment,” as the same may be terminated pursuant to Sections 3.02, 3.03 and/or 10.




          “Tranche C-1 Term Loan Scheduled Repayment” shall have the meaning provided in Section
4.02(b)(ii).




          “Tranche C-1 Term Note” shall have the meaning provided in Section 1.05(a).




          “Treaty” means the Treaty establishing the European Community being the Treaty of Rome
of March 25, 1957, as amended by the Single European Act 1986, the Maastricht Treaty (which was
signed at Maastricht on February 7, 1992) and the Treaty of Amsterdam (which was signed in
Amsterdam on October 2, 1997).




          “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 Eurodollar Loan.




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




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




          “Unrestricted Cash” shall mean all cash and Cash Equivalents owned or held by the U.S.
Borrower and its Subsidiaries other than cash and Cash Equivalents owned or held by the Excluded
Bermuda Insurance Companies.




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




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




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




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




          “U.S. Borrower Bank Guaranty” shall mean each Bank Guaranty (which may be denominated
in Dollars or an Alternative Currency) issued for the account of the U.S. Borrower pursuant to
Section 2B.01 and designated as such by the U.S. Borrower in the respective Bank Guaranty Request.





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          “U.S. Borrower Incremental Term Loans” shall mean Incremental Term Loans incurred by
the U.S. Borrower.




          “U.S. Borrower Letter of Credit” shall mean each Letter of Credit (which must be
denominated in Dollars or an Alternative Currency) issued for the account of the U.S. Borrower
pursuant to Section 2A.01.




          “U.S. Borrower Term Loans” shall mean and include all Tranche B-1 Term Loans and all
U.S. Borrower Incremental Term Loans.




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




          “U.S. Dole Group” shall mean the U.S. Borrower and the U.S. 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. Leasehold Property” shall mean each Leasehold Property located in the United
States.




          “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.




          “U.S. Pledge Agreement” shall mean the Amended and Restated U.S. Pledge Agreement,
dated as the Amendment No. 3 Effective Date, executed and delivered by each U.S. Credit Party in
the form of Exhibit F-1 (as amended, modified, restated and/or supplemented from time to
time in accordance with the terms hereof and thereof).




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




          “U.S. Security Agreement” shall mean the Amended and Restated U.S. Security Agreement,
dated as of the Amendment No. 3 Effective Date, executed and delivered by each U.S. Credit Party in
the form of Exhibit F-2 (as amended, modified, restated and/or supplemented from time to time in
accordance with the terms hereof and thereof).




          “U.S. Security Documents” shall mean and include the U.S. Security Agreement, the U.S.
Pledge Agreement, each Mortgage covering a U.S. Mortgaged Property and each Additional Security
Document covering assets of a U.S. Credit Party situated in the United States.




          “U.S. Subsidiaries Guaranty” shall mean the Amended and Restated U.S. Subsidiaries
Guaranty, dated as of the Amendment No. 3 Effective Date, executed and delivered by each U.S.
Subsidiary Guarantor in the form of Exhibit E-1 (as further amended, modified or supplemented
from time to time in accordance with the terms hereof and thereof).




          “U.S. Subsidiary Guarantor” shall mean (i) each Wholly-Owned Domestic Subsidiary of
the U.S. Borrower as of the Amendment No. 3 Effective Date (other than the Excluded Domestic
Sub-




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sidiary) and (ii) each other Wholly-Owned Domestic Subsidiary of the U.S. Borrower created,
established or acquired after the Amendment No. 3 Effective Date which executes and delivers a U.S.
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 U.S.
Subsidiaries Guaranty in accordance with the terms and provisions thereof.




          “Unpaid Drawing” shall have the meaning provided in Section 2A.05(a).




          “Unreimbursed Payment” shall have the meaning provided in Section 2B.05(a).




          “Unrestricted Cash” shall mean all cash and Cash Equivalents owned or held by the U.S.
Borrower and its Subsidiaries other than cash and Cash Equivalents owned or held by the Excluded
Bermuda Insurance Companies.




          “Voting Participant” shall have the meaning provided in Section 13.04(a).




          “Voting Participant Notice” shall have the meaning provided in Section 13.04(a).




          “Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at
any date, the number of years obtained by dividing (i) the then outstanding principal amount of
such Indebtedness into (ii) the product obtained by multiplying (x) the amount of each then
remaining installment or other required scheduled payments of principal, including payment at final
maturity, in respect thereof, by (y) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such payment.




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




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




          “Wholly-Owned Subsidiary” shall mean, as to any Person, (i) any corporation 100% of
whose capital stock (other than director’s qualifying shares and/or other nominal amounts of shares
required by applicable law to be held by Persons other than such Person) 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;
provided that any Foreign Subsidiary of such Person at least 98% of whose capital stock or
other Equity Interests are owned by such Person and/or one or more Wholly-Owned Subsidiaries
(determined after giving effect to this proviso) of such Person at such time shall be deemed to be
a Wholly-Owned Subsidiary of such Person.




          “Written” (whether lower or upper case) or “in writing” shall mean any form of
written communication or a communication by means of telex, facsimile device, telegraph or cable.




          Section 12. The Agents.




          12.01 Appointment.




          (a) Each Lender hereby irrevocably designates and appoints (x) DBAG as Administrative Agent
for such Lender (for purposes of this Section 12 and the term “Agent” as used herein, the term
“Administrative Agent” shall mean DBAG in its capacities as Administrative Agent, Deposit Bank




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and
as Collateral Agent hereunder and pursuant to the Security Documents), (y) BAS as Syndication Agent
for such Lender, and (z) Scotia Capital and Rabobank as Co-Documentation Agents for such Lender,
each to act as specified herein and in the other Credit Documents, and each such Lender hereby
irrevocably authorizes the Administrative Agent, the Syndication Agent and each Co-Documentation
Agent to take such action on its behalf under the provisions of this Agreement and the other Credit
Documents and to exercise such powers and perform such duties as are expressly delegated to or
required of the Administrative Agent, the Syndication Agent or the Co-Documentation Agents, as the
case may be, by the terms of this Agreement and the other Credit Documents, together with such
other powers as are reasonably incidental thereto. Each of the Agents may perform any of their
respective duties under this Agreement, the other Credit Documents and any other instruments and
agreements referred to herein or therein by or through its respective officers, directors, agents,
employees or affiliates (it being understood and agreed, for avoidance of doubt and without
limiting the generality of the foregoing, that the Administrative Agent and/or Collateral Agent may
perform any of its duties under the Security Documents by or through one or more of its
affiliates).




          (b) The provisions of this Section 12 are solely for the benefit of the Administrative Agent,
the Syndication Agent and the Co-Documentation Agents and the Lenders, and neither the U.S.
Borrower nor any of its Subsidiaries shall have any rights as a third party beneficiary of any of
the provisions hereof. In performing its functions and duties under this Agreement, each of the
Administrative Agent, the Syndication Agent and the Documentation Agent shall act solely as agent
for the Lenders, and none of the Administrative Agent, the Syndication Agent and the
Co-Documentation Agents assumes (and shall not be deemed to have assumed) any obligation or
relationship of agency or trust with or for the U.S. Borrower or any of its Subsidiaries.




          12.02 Nature of Duties.




          (a) No Agent shall have any duties or responsibilities except those expressly set forth in
this Agreement and in the other Credit Documents. Neither any Agent nor any of its officers,
directors, agents, employees or affiliates shall be liable for any action taken or omitted by it
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 Agents shall be mechanical
and administrative in nature; no Agent shall 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 any Agent any obligations in respect of this Agreement or any other
Credit Document except as expressly set forth herein or therein, provided that the
Administrative Agent and/or the Collateral Agent shall be deemed to be a trustee and stand in a
fiduciary relationship with respect to the Lenders and the holders of Notes for purposes of any
Security Document governed by the laws of a jurisdiction located outside the United States where
the Administrative Agent and/or the Collateral Agent, as the case may be, shall determine, based on
advice of local counsel, that same is necessary or desirable for purposes of realizing the benefits
intended to be conferred pursuant to such Security Document, and the Lenders hereby irrevocably
designate each of the Administrative Agent and the Collateral Agent as their trustee for such
purpose and authorize each of the
Administrative Agent and the Collateral Agent to at any time and from time to time take all
actions (including, without limitation, making demand for all amounts then due and payable and the
exercise of other remedies) on their behalf in accordance with the terms of such Security Document
without the necessity of any notice to or further consent from any Lender, and the Lenders hereby
agree to indemnify the Administrative Agent and the Collateral Agent (and each of their respective
officers, directors, trustees, employees, representatives and agents) and hold each of them
harmless against any and all liabilities, obligations (including removal or remedial actions),
losses, damages, penalties, claims, actions, judg-







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ments, suits, costs, expenses and disbursements
(including reasonable attorneys’ and consultants’ fees and disbursements) incurred by, imposed on
or assessed against any of them as a result of, or arising out of, or in any way related to, or by
reason of, the taking of any action or any omission to take action under any such Security Document
unless such action is taken or omitted to be taken with gross negligence or willful misconduct (as
determined by a court of competent jurisdiction in a final and non-appealable decision).




          (b) Notwithstanding any other provision of this Agreement or any provision of any other Credit
Document, the Lead Arranger is named as such for recognition purposes only, and in its capacity as
such shall have no powers, duties, responsibilities or liabilities with respect to this Agreement
or the other Credit Documents or the transactions contemplated hereby and thereby; it being
understood and agreed that the Lead Arranger shall be entitled to all indemnification and
reimbursement rights in favor of “Agents” as, and to the extent, provided for under Sections 12.07
and 13.01. Without limitation of the foregoing, the Lead Arranger shall not, solely by reason of
this Agreement or any other Credit Documents, have any fiduciary relationship in respect of any
Lender or any other Person.




          12.03 Certain Rights of the Agents. The Agents shall have the right (but shall be
under no obligation) to request instructions from the Required Lenders at any time. If any Agent
shall request 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, such Agent shall be
entitled to refrain from such act or taking such action unless and until such Agent shall have
received instructions from the Required Lenders; and such 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 any Agent or any of its
employees, directors, officers, agents or affiliates as a result of such Agent or such other person
acting or refraining from acting hereunder or under any other Credit Document in accordance with
the instructions of the Required Lenders.




          12.04 Reliance by Agents. Each Agent shall be entitled to rely, and shall be fully
protected (and shall have no liability to any Person) in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order, telephone message or other document or conversation that such Agent believed, in
the absence of gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision), 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 such Agent (which may be counsel for
the Credit Parties) and, with respect to other matters, upon advice of independent public
accountants or other experts selected by it.




          12.05 Notice of Default, etc. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default unless the Administrative
Agent has actually received written notice from a Lender or the U.S. Borrower or either Borrower
referring to this Agreement, describing such Default or Event of Default and stating that such
notice is a “notice of default.” In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give prompt notice thereof to the Lenders.




          12.06 Nonreliance on Agents and Other Lenders. Independently and without reliance
upon any Agent, each Lender, each Issuing Lender, each Bank Guaranty Lender and the holder of each
Note, to the extent it deems appropriate, has made and shall continue to make its own independent
investigation of the financial condition and affairs of the U.S. Borrower and its Subsidiaries in
connection with the making and the continuance of the Loans, the issuance and the participation in
Letters of Credit or Bank Guaranties and the taking or not taking of any action in connection
herewith and, except as ex-




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pressly provided in this Agreement, no Agent shall have any duty or
responsibility, either initially or on a continuing basis, to provide any Lender, any Issuing
Lender, any Bank Guaranty Issuer 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 the
issuing of any Letter of Credit or any Bank Guaranty or at any time or times thereafter. No Agent
or their respective affiliates nor any of their respective officers, directors, agents or employees
shall be responsible to any Lender, any Issuing Lender, any Bank Guaranty Issuer or the holder of
any Note for, or be required or have any duty to ascertain, inquire or verify the accuracy of, (i)
any recitals, statements, information, representations or warranties herein or in any document,
certificate or other writing delivered in connection herewith, (ii) the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority or sufficiency of this
Agreement or any other Credit Document, (iii) the financial condition of the U.S. Borrower and any
of its Subsidiaries, (iv) the performance or observance of any of the terms, provisions or
conditions of this Agreement or any other Credit Document, (v) the satisfaction of any of the
conditions precedent set forth in Section 5 of the Original Credit Agreement or Section 6, or (vi)
the existence or possible existence of any Default or Event of Default.




          12.07 Indemnification.




          (a) To the extent any Agent (or any affiliate thereof) is not reimbursed and indemnified by
the Borrowers, the Lenders will reimburse and indemnify such Agent (and any affiliate thereof) in
proportion to their respective “percentages” as used in determining the Required Lenders
(determined as if there were no Defaulting Lenders and at the time such indemnity is sought), 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 such Agent (or any affiliate thereof) in performing its respective
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 in its capacity as Agent, provided that no
Lender shall be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s
gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a
final and non-appealable decision).




          (b) Any Agent shall be fully justified in failing or refusing to take any action hereunder and
under any other Credit Document (except actions expressly required to be taken by it hereunder or
under the Credit Documents) unless it shall first be indemnified to its satisfaction by the Lenders
pro rata against any and all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.




          (c) The agreements in this Section 12.07 shall survive the payment of all Obligations.




          12.08 Agents in Their Individual Capacities.




          (a) With respect to its obligation to make Loans, or issue or participate in Letters of Credit
or Bank Guaranties, under this Agreement, each 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,” “Supermajority Lenders,”
“Majority Lenders,” “holders of Notes” or any similar terms shall, unless the context clearly
otherwise indicates, include each Agent in its individual capacity. Each 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




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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.




          (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 ABL 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 Holders. The Administrative Agent may deem and treat the payee of any Note as
the owner thereof for all purposes hereof unless and until a written notice of the assignment,
transfer or endorsement thereof, as the case may be, shall have been filed with the Administrative
Agent. Any request, authority or consent of any Person or entity 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.




          12.10 Resignation of the Agents.




          (a) The Administrative Agent may resign from the performance of all its functions and duties
hereunder and/or under the other Credit Documents (including, without limitation, its functions and
duties as Collateral Agent) at any time by giving 30 days’ prior written notice to the Lenders and,
unless a Default or an Event of Default under Section 10.05 then exists, the U.S. Borrower. Any
such resignation by the Administrative Agent hereunder shall also constitute its resignation (if
applicable) as an Issuing Lender and Bank Guaranty Issuer, in which case the resigning
Administrative Agent (x) shall not be required to issue any further Letters of Credit or Bank
Guaranties hereunder and (y) shall maintain all of its rights as Issuing Lender or Bank Guaranty
Issuer, as the case may be, with respect to any Letter of Credit or Bank Guaranty issued 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 and/or under the other Credit Documents
who shall be a commercial bank or trust company acceptable to the U.S. Borrower, which acceptance
shall not be unreasonably withheld or delayed (provided that the U.S. 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 30-day
period, the Administrative Agent, with the consent of the U.S. Borrower (which consent shall not be
unreasonably withheld or delayed, provided that the U.S. 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 and/or under the other Credit Documents 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 30th 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




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Document until such time, if any, as the Lenders appoint a successor Administrative Agent as
provided above.




          (e) Upon a resignation of any Agent pursuant to this Section 12.10, such Agent shall remain
indemnified to the extent provided in this Agreement and the other Credit Documents and the
provisions of this Section 12 shall continue in effect for the benefit of such Agent for all of its
actions and inactions while serving as such Agent.




          12.11 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
or participant in Letters of Credit or Bank Guaranties 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, subject to the
provisions of the Intercreditor Agreement, 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, subject to the provisions of the Intercreditor Agreement, 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, subject to the
provisions of the Intercreditor Agreement, (i) upon termination of the Commitments (and all Letters
of Credit and Bank Guaranties) and indefeasible payment and satisfaction in full of all of the
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 U.S. Borrower and its Subsidiaries) upon the sale or other
disposition thereof in compliance with Section 9.02, (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 12.11
or (v) constituting Equity Interests or assets of any Subsidiary of the U.S. Borrower (other than
the Bermuda 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 12.11 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).





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          12.12 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 either Borrower, any Subsidiary, the
Required Lenders, any Lender or any other Person under or in connection with this Agreement or any
other Credit Document except (i) as specifically provided in this Agreement or any other Credit
Document and (ii) as specifically requested from time to time in writing by any Lender with respect
to a specific document, instrument, notice or other written communication received by and in the
possession of the Administrative Agent at the time of receipt of such request and then only in
accordance with such specific request.




          12.13 Special Appointment of Collateral Agent (Germany).




          a) For the purposes of German Security (as defined below) in addition to the provisions set
out above, the specific provisions set out in paragraph b) to f) of this Section 12.13 shall be
applicable. In the case of any inconsistency the provisions set out in paragraph b) to f) of this
Section 12.13 shall prevail.




          b) With respect to German Security (“German Security” shall mean any security interest
created under the Security Documents which are governed by German law), the Collateral Agent shall
in case of German Security constituted by non—accessory (nicht akzessorische) security interests,
hold, administer and, as the case may be, enforce or release such German Security in its own name,
but for the account of the Secured Creditors.




          c) In the case of German Security constituted by accessory (akzessorische) security interests
created by way of pledge or other accessory instruments, hold (with regard to its own rights under
Section 12.17 (Parallel Debt owed to the Collateral Agent)), administer and, as the case may be,
enforce or release such German Security in the name of and for and on behalf of the Secured
Creditors and in its own name on the basis of the abstract acknowledgement of indebtedness pursuant
to Section 12.17 (Parallel Debt owed to the Collateral Agent).




          d) For the purposes of performing its rights and obligations as Collateral Agent under any
accessory (akzessorische) German Security, each Secured Creditor hereby authorizes the Collateral
Agent to act as its agent (Stellvertreter), and releases the Collateral Agent from the restrictions
imposed by Section 181 German Civil Code (Bürgerliches Gesetzbuch). At the request of the
Collateral Agent, each Secured Creditor shall provide the Collateral Agent with a separate written
power of attorney (Spezialvollmacht) for the purposes of executing any relevant agreements and
documents on their behalf. Each Secured Creditor hereby ratifies and approves all acts previously
done by the Collateral Agent on such Secured Creditor’s behalf.




          e) The Collateral Agent accepts its appointment as administrator of the German Security on the
terms and subject to the conditions set out in this Agreement and the Secured Creditors, the
Collateral Agent and all other parties to this Agreement agree that, in relation to the German
Security, no Secured Creditor shall exercise any independent power to enforce any German Security
or take any other action in relation to the enforcement of the German Security, or make or receive
any declarations in relation thereto.




          f) Each Secured Creditor hereby instructs the Collateral Agent (with the right of
sub-delegation) to enter into any documents evidencing German Security and to make and accept all
declarations and take all actions it considers necessary or useful in connection with any German
Security on behalf of such Secured Creditor. The Collateral Agent shall further be entitled to
rescind, release, amend and/or execute new and different documents securing the German Security.




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          12.14 Special Provisions Relating to Canadian Security Documents.




          (a) For greater certainty, and without limiting the powers of the Collateral Agent hereunder
or under any of the Foreign Security Documents, each of the Bermuda Borrower and the Secured
Creditors hereby acknowledges that the Collateral Agent is, for purposes of holding any security
granted by Dole Foods of Canada Ltd. (“Dole Canada”) on the property of Dole Canada
pursuant to the laws of the Province of Quebec, the holder of an irrevocable power of attorney
(fondé de pouvoir) (within the meaning of the Civil Code of Quebec) for all present and future
Secured Creditors and in particular for all present and future holders of the bond issued by Dole
Canada in favor of the Collateral Agent (the “Canadian Bond”). Each of the Agents and
Lenders (for themselves as Secured Creditors and for the Other Creditors (as defined in the
security agreement governed by the laws of the Province of Ontario executed by Dole Canada (the
"Canadian Security Agreement”)) hereby irrevocably confirms the constitution of and
constitutes, to the extent necessary, the Collateral Agent as the holder of an irrevocable power of
attorney (fondé de pouvoir) (within the meaning of Article 2692 of the Civil Code of Quebec) in
order to hold security granted by Dole Canada in the Province of Quebec to secure the Canadian
Bond. The acceptance of an assignment by an assignee of a Secured Creditor shall be deemed to have
confirmed and ratified the constitution of the Collateral Agent as the holder of such irrevocable
power of attorney (fondé de pouvoir). For greater certainty, by their acceptance of the benefits
of the Canadian Security Agreement, each of the Other Creditors (as defined in the Canadian
Security Agreement) shall be deemed to have confirmed and ratified the appointment of the
Collateral Agent for purposes of the Bond and the Bond pledge agreement to be entered into by Dole
Canada pursuant to the laws of the Province of Quebec. Notwithstanding the provisions of Section
32 of An Act respecting the special powers of legal persons (Quebec), each of the Bermuda Borrower,
the Agents and the Lenders (for themselves as Secured Creditors and for the Other Creditors) agree
that the Collateral Agent may acquire and be the holder of the Canadian Bond. The Bermuda Borrower
hereby acknowledges that the Canadian Bond constitutes a title of indebtedness, as such term is
used in Article 2692 of the Civil Code of Quebec.




          (b) Each Lender irrevocably consents to the amendment of the Canadian Security Agreement
pursuant to the acknowledgement, confirmation and amendment of security dated as of the date hereof
between Dole Canada and the Collateral Agent.




          12.15 Special Appointment of Collateral Agent (Italy).




          (a) Without prejudice to the generality of Section 12.11:





     (i) each Lender (including, without limitation, each Lender which is a Hedging Creditor
(as defined in the Foreign Subsidiaries Guaranty)) (as “mandante” under Italian law), by
executing this Agreement, irrevocably appoints the Collateral Agent to act as agent
(“mandatario con rappresentanza” under Italian law) under and in connection with the Foreign
Security Documents governed by Italian law (collectively, the “Italian Collateral
Documents”) and irrevocably authorizes the Collateral Agent (x) to execute on its behalf
the Italian Collateral Documents, and (y) to perform the duties and to exercise the rights,
powers and discretions that are specifically delegated to it under or in connection with the
Italian Collateral Documents, together with any other incidental rights, powers and
discretions; and




     (ii) each Lender (including, without limitation, each Lender which is a Hedging
Creditor (as defined in the Foreign Subsidiaries Guaranty)) irrevocably authorizes the
Collateral Agent for and on its behalf to exercise the rights, powers and discretions which
are specifically delegated to it by the terms of the Italian Collateral Documents and this
Agreement, together with all rights, powers and discretions which are incidental thereto and
to give any discharge for any monies payable under the Italian Collateral Documents.



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          (b) Notwithstanding Section 13.08 hereof, the provisions of this Section 12.15 shall be
governed by Italian law.




          12.16 Continuing Indemnities for Original Agents. Notwithstanding the effectiveness
of Amendment No. 3, the parties hereto understand and agree that all indemnities provided pursuant
to the Original Credit Agreement (whether by the Original Lenders, the Borrowers or any other
Credit Party) shall continue in full force and effect in accordance with the terms of the Original
Credit Agreement, for any actions or occurrences prior to the Amendment No. 3 Effective Date, in
accordance with the terms of the Original Credit Agreement. Any indemnities pursuant to the
preceding sentence shall be in addition to any applicable indemnities hereunder.




          12.17 Parallel Debt owed to the Collateral Agent




          a) Each of the Guarantors resident in the Federal Republic of Germany (the “German
Guarantors”) hereby irrevocably and unconditionally undertakes to pay to the Collateral Agent
as creditor in its own right and not as a representative of the Secured Creditors amounts equal to
any amounts owing from time to time by that German Guarantor to any Secured Creditor under any
Credit Document as and when those amounts are due for payment under the relevant Credit Document.




          b) Each German Guarantor and the Collateral Agent acknowledge that the obligations of each
German Guarantor under paragraph a) are several and are separate and independent from, and shall
not in any way limit or affect, the corresponding obligations of the German Guarantors to any
Secured Creditor under any Credit Document (its “Corresponding Debt”) nor shall the amounts
for which each German Guarantor is liable under paragraph a) (its “Parallel Debt”) be
limited or affected in any way by its Corresponding Debt provided that:




          (i) the Parallel Debt of each German Guarantor shall be decreased to the extent that its
Corresponding Debt has been irrevocably paid or (in the case of guarantee obligations) discharged;
and




          (ii) the Corresponding Debt of each German Guarantor shall be decreased to the extent that its
Parallel Debt has been irrevocably paid or (in the case of guarantee obligations) discharged.




          c) The Collateral Agent acts in its own name and not as a trustee, and its claims in respect
of the Parallel Debt shall not be held on trust. The German Security granted under the Credit
Documents to the Collateral Agent to secure the Parallel Debt is granted to the Collateral Agent in
its capacity as creditor of the Parallel Debt and shall not be held on trust.




          d) All monies received or recovered by the Collateral Agent pursuant to this Section 12.17,
and all amounts received or recovered by the Collateral Agent from or by the enforcement of any
German Security granted to secure the Parallel Debt, shall be applied in accordance with the
Intercreditor Agreement.




          e) Without limiting or affecting the Collateral Agent’s rights against the German Guarantors
(whether under this Section 12.17 or under any other provision of the Credit Documents), each
German Guarantor acknowledges that:




          (i) nothing in this Section 12.17 shall impose any obligation on the Collateral Agent to
advance any sum to any German Guarantor or otherwise under any Credit Document, except in its
capacity as lender; and




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          (ii) for the purpose of any vote taken under any Credit Document, the Collateral Agent shall
not be regarded as having any participation or commitment other than those which it has in its
capacity as a lender.




          Section 13. Miscellaneous.




          13.01 Payment of Expenses, etc. The Borrowers jointly and severally agree to: (i)
whether or not the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Agents, the Collateral Agent and the Deposit Bank
(including, without limitation, the reasonable fees and disbursements of Cahill Gordon & Reindel
llp and local and foreign counsel) in connection with the negotiation, preparation,
execution, delivery and administration of this Agreement and the other Credit Documents and the
documents and instruments referred to herein and therein and of the Administrative Agent and the
Collateral Agent in connection with any amendment, waiver or consent relating hereto or thereto,
and of each Agent in connection with its syndication efforts with respect to this Agreement;
provided, however, that the Borrowers shall not be obligated to pay legal fees and
expenses of counsel incurred in connection with the initial negotiation, preparation, execution and
delivery of the Credit Documents other than the legal fees and expenses of Cahill Gordon & Reindel
llp, and such other local and foreign counsel as may be engaged by the Administrative
Agent to address issues arising in connection with the Refinancing and/or to prepare security
documentation governed by local or foreign law; (ii) pay all reasonable out-of-pocket costs and
expenses of each Agent, the Collateral Agent, each Issuing Lender, each Bank Guaranty Issuer, the
Deposit Bank and each of the Lenders in connection with the enforcement of the Credit Documents and
the documents and instruments referred to therein or entered into or delivered in connection
therewith (including, without limitation, the reasonable fees and disbursements of counsel) and the
protection of the rights of each Agent, the Collateral Agent, each Issuing Lender, each Bank
Guaranty Issuer, the Deposit Bank and each of the Lenders thereunder (including, without
limitation, the reasonable fees and disbursements of counsel (including in house counsel) for each
Agent, the Collateral Agent, each Issuing Lender, each Bank Guaranty Issuer, the Deposit Bank and
each of the Lenders); (iii) pay and hold each of the Agents, the Collateral Agent, each Issuing
Lender, each Bank Guaranty Issuer, the Deposit Bank and each of the Lenders harmless from and
against any and all present and future stamp, documentary, transfer, sales and use, value added,
excise and other similar taxes with respect to the foregoing matters, the performance of any
obligation under this Agreement or any other Credit Document or any payment thereunder, and save
each of the Agents, the Collateral Agent, each Issuing Lender, each Bank Guaranty Issuer, the
Deposit Bank 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 Agents,
the Collateral Agent, such Issuing Lender, such Bank Guaranty Issuer, the Deposit Bank or such
Lender) to pay such taxes; and (iv) indemnify each Agent, the Collateral Agent, each Issuing
Lender, each Bank Guaranty Issuer, the Deposit Bank, each Lender, each affiliate of the foregoing
Persons and their respective officers, directors, employees, representatives, trustees, advisors,
and agents (each, an “Indemnified Person”) from and hold each of them harmless against any
and all liabilities, obligations (including removal or remedial actions), losses, damages,
penalties, claims, actions, costs, expenses and disbursements incurred by, imposed on or assessed
against any of them as a result of, or arising out of, or in any way related to, or by reason of,
(a) any investigation, litigation or other proceeding (whether or not any Agent, the Collateral Agent, any Issuing Lender,
any Bank Guaranty Issuer, the Deposit
 Bank or any Lender is a party thereto and whether or not any
such investigation, litigation or other proceeding is between or among any Agent, the Collateral
Agent, any Issuing Lender, any Bank Guaranty Issuer, the Deposit Bank, any Lender, any Credit Party
or any third Person or otherwise) related to the entering into and/or performance of this Agreement
or any other Document or the use of any Letter of Credit, Bank Guaranty or Credit-Linked Deposit
or the proceeds of any Loans hereunder or any other transactions contemplated by any Document or
the exercise or enforcement of any of their rights or remedies provided herein or in the other
Credit Documents (but excluding any such li-







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abilities, obligations, losses, damages, penalties,
claims, actions, costs, expenses and disbursements to the extent incurred by reason of the gross
negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and
non-appealable decision) of the Person to be indemnified), 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 any Credit Party or any of its Subsidiaries,
the Release, generation, storage, transportation, handling or disposal of Hazardous Materials at
any location, whether or not owned, leased or operated by any Credit Party or any of its
Subsidiaries, the non-compliance of any Real Property with foreign, federal, state and local laws,
regulations, and ordinances (including applicable permits thereunder) applicable to any Real
Property, or any Environmental Claim in connection with or relating to any Credit Party, any of its
Subsidiaries or any of their operations or activities or any Real Property at any time owned,
leased or operated by any Credit Party or any of its Subsidiaries, in each case, including, without
limitation, the reasonable fees and disbursements of counsel and independent consultants incurred
in connection with any such investigation, litigation or other proceeding (but excluding any such
liabilities, obligations, losses, damages, penalties, claims, actions, costs, expenses and
disbursements to the extent incurred by reason of the gross negligence or willful misconduct (as
determined by a court of competent jurisdiction in a final and non appealable decision) of the
Person to be indemnified)). To the extent that the undertaking to indemnify, pay or hold harmless
any Agent, the Collateral Agent, any Issuing Lender, any Bank Guaranty Issuer, the Deposit Bank or
any Lender set forth in the preceding sentence may be unenforceable because it is violative of any
law or public policy, the Borrowers hereby agree to 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 of an Event of Default, each
Agent, each Issuing Lender, each Bank Guaranty Issuer, each Lender and the Collateral Agent is
hereby authorized at any time or from time to time, without presentment, demand, protest or other
notice of any kind to the U.S. Borrower or any of its Subsidiaries 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 such Agent, such
Issuing Lender, each Bank Guaranty Issuer, such Lender or the Collateral Agent (including, without
limitation, by branches and agencies of such Agent, such Lender or the Collateral Agent wherever
located) to or for the credit or the account of the U.S. Borrower or any of its Subsidiaries
against and on account of the Obligations and liabilities of the U.S. Borrower or such Subsidiary,
as the case may be, to such Agent, such Issuing Lender, such Bank Guaranty Issuer, such Lender or
the Collateral Agent 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
13.06(b), all participations by any Lender in Letters of Credit or Bank Guaranties as required
pursuant to the provisions of this Agreement 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 such Agent, such Issuing Lender, such Bank Guaranty Issuer, such Lender or the
Collateral Agent shall have made any demand hereunder and although said Obligations shall be
contingent or unmatured.
Each Borrower agrees that any Lender purchasing participations in one or more Letters of
Credit or Bank Guaranties issued to it as required by the provisions of this Agreement, or
purchasing participations as required by Section 13.06(b), may, to the fullest extent permitted by
law, exercise all rights (including without limitation the right of setoff) with respect to such
participations as fully as if such Lender were a direct creditor of such Borrower with respect to
such participations in the amount thereof.




          (b) NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY TIME THAT THE LOANS OR ANY OTHER
OBLIGATION SHALL BE SECURED BY REAL PROPERTY




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LOCATED IN CALIFORNIA, NO LENDER OR THE ADMINISTRATIVE
AGENT SHALL EXERCISE A RIGHT OF SETOFF, LIEN OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE
ACTION OR INSTITUTE ANY PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE UNLESS IT
IS TAKEN WITH THE CONSENT OF THE REQUIRED LENDERS OR APPROVED IN WRITING BY THE ADMINISTRATIVE
AGENT, IF SUCH SETOFF OR ACTION OR PROCEEDING WOULD OR MIGHT (PURSUANT TO CALIFORNIA CODE OF CIVIL
PROCEDURE SECTIONS 580a, 580b, 580d AND 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION
2924 OF THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE VALIDITY,
PRIORITY OR ENFORCEABILITY OF THE LIENS GRANTED TO THE COLLATERAL AGENT PURSUANT TO THE SECURITY
DOCUMENTS OR THE ENFORCEABILITY OF THE NOTES AND OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED
EXERCISE BY ANY LENDER 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. THIS SUBSECTION (b)
SHALL BE SOLELY FOR THE BENEFIT OF EACH OF THE LENDERS AND THE ADMINISTRATIVE AGENT HEREUNDER.




          13.03 Notices.




          (a) Except as otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including telegraphic, telex, facsimile or cable
communication) and mailed, telegraphed, telexed, telecopied, cabled or delivered: if to either
Borrower, at the address specified opposite its signature below; if to any Lender, at its address
specified for such Lender on Schedule II; and if to the Administrative Agent, at its Notice Office;
or, as to any either Borrower or any of the Agents, 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 U.S. Borrower and the
Administrative Agent. All such notices and communications shall be mailed, telegraphed, telexed,
telecopied or cabled or sent by overnight courier, and shall be effective when received.




          (b) Without in any way limiting the obligation of the U.S. Borrower and its Subsidiaries to
confirm in writing any telephonic notice permitted to be given hereunder, any Agent, any Issuing
Lender (in the case of the issuance of a Letter of Credit) or any Bank Guaranty Issuer (in the case
of the issuance of a Bank Guaranty), as the case may be, may prior to receipt of written
confirmation act without liability upon the basis of such telephonic notice believed by such Agent,
such Issuing Lender or such Bank Guaranty Issuer in good faith to be from an Authorized Officer.
In each such case, the U.S. Borrower and each of the Borrowers hereby waive the right to dispute
such Agent’s, such Issuing Lender’s or such Bank Guaranty Issuer’s record of the terms of such
telephonic notice.




          13.04 Benefit of Agreement.




          (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, no
neither Borrower may assign or transfer any of its rights, obligations or interest hereunder or under any
other Credit Document without the prior written consent of each of the Lenders and
provided, further, that, although any Lender may (without the consent of any Credit
Party) 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
Commitments or Loans hereunder except as provided in Section 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







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shall have rights to approve any amendment to or waiver of this Agreement or any other
Credit Document except (I) to the extent such amendment or waiver would (i) extend the final
scheduled maturity of any Loan, Note, Letter of Credit or Bank Guaranty (unless such Letter of
Credit or Bank Guaranty is not extended beyond the CL 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, 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 or of a mandatory repayment of Loans
shall not constitute a change in the terms of such participation, that an increase in any
Commitment or Loan shall be permitted without the consent of any participant if the participant’s
participation is not increased as a result thereof and that any amendment or modification to the
financial definitions in this Agreement shall not constitute a reduction in any rate of interest or
fees for purposes of this clause (i), notwithstanding the fact that such amendment or modification
actually results in such a reduction), (ii) consent to the assignment or transfer by any either
Borrower of any of its rights and obligations under this Agreement or (iii) release all or
substantially all of the Collateral under all of the Security Documents (except as expressly
provided in the Security Documents) supporting the Obligations in which such participant is
participating and (II) that, solely in the case of a participant (each, a “Voting
Participant”) which (x) has purchased a participation interest in such Lender’s Commitments
and/or outstanding Term Loans in a minimum aggregate amount (without duplication) of at least
$2,000,000 on or after the Amendment No. 3 Effective Date and (y) is (A) designated by such Lender
to the U.S. Borrower and the Administrative Agent by written notice (a “Voting Participant
Notice”) as being entitled to be accorded the rights of a “voting” participant hereunder, (B)
approved by the U.S. Borrower and the Administrative Agent (such approvals not to be unreasonably
withheld or delayed) and (C) not a Disqualified Voting Participant, such participant shall be
entitled to vote with respect to each Tranche in which it holds a participation from such Lender
(and the voting rights of such Lender for each such Tranche shall be correspondingly reduced), on a
Dollar basis, as if such participant were a Lender under such Tranche on any matter requiring or
allowing such Lender to provide or withhold its consent or to otherwise vote on any proposed action
(with any Voting Participant Notice, with respect to any Voting Participant, to be effective only
if same (a) states the full legal name of such Voting Participant, as well as the relevant contact
information and administrative details for such Voting Participant, and (b) states the Dollar
amount of the participation interest in each Tranche purchased). 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 Borrowers hereunder shall be determined as if such Lender
had not sold such participation; provided that a Voting Participant shall have the voting
rights to which it is entitled as described in the preceding sentence.




          (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 outstanding Term Loans and/or Credit-Linked
Commitments (and related outstanding Obligations (and Credit-Linked Deposit, if applicable)
hereunder) to (i) its parent company and/or any affiliate of such Lender which is at least 50%
owned by such Lender or its parent company, (ii) one or more Lenders or (iii) in the case of any
Lender that is a fund that invests
in bank loans, any other fund that invests in bank loans and is managed by the same investment
advisor of a Lender or by an Affiliate of such investment advisor or (y) assign all, or if less
than all, a portion equal to at least (A) $1,000,000 in the aggregate for the assigning Lender or
assigning Lenders, of such outstanding principal amount of Term Loans hereunder and (B) $1,000,000
in the aggregate for the assigning Lender or assigning Lenders, of such Credit-Linked Commitments
and related Credit-Linked Deposit and Obligations, in each case, to one or more Eligible
Transferees (treating (I) any fund that invests in bank loans and (II) any other fund that invests
in bank loans and is managed by the same investment advisor as








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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
outstanding Term Loans and/or Credit-Linked Commitments, as the case may be, of such new Lender and
of the existing Lenders, (ii) upon the request of the respective Lender and upon the surrender of
the old Notes (if any), new Notes will be issued, at the Borrowers’ expense, to such new Lender and
to the assigning Lender, such new Notes to be in conformity with the requirements of Section 1.05
(with appropriate modifications) to the extent needed to reflect the revised outstanding Term
Loans, as the case may be, (iii) except in the case of assignments by the Agents in connection with
their syndication of this Agreement, the consent of the Administrative Agent and, so long as no
Default or Event of Default then exists and is continuing, the U.S. Borrower shall be required in
connection with any such assignment pursuant to clause (y) of this Section 13.04(b) (which consent
shall not be unreasonably withheld or delayed) and (iv) 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, provided, further, that such transfer
or assignment will not be effective until recorded by the Administrative Agent on the Register
pursuant to Section 13.17. 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
Commitments (and, in the case of an assignment of Credit-Linked Commitments, will lose its rights
with respect to the assigned CL Percentage in its Credit-Linked Deposit) and/or outstanding Term
Loans, as the case may be. 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 U.S. Borrower and
the Administrative Agent the appropriate Internal Revenue Service Forms (and, if applicable, a
Section 4.04(b)(ii) Certificate) described in Section 4.04(b)(ii) to the extent such forms would
provide a complete exemption from or reduction in United States withholding tax. To the extent
that an assignment of all or any portion of a Lender’s Commitments and related outstanding
Obligations pursuant to Section 1.13 or this Section 13.04(b) would, at the time of such
assignment, result in increased costs under Section 1.10, 1.11, 2A.06, 2B.06 or 4.04 from those
being charged by the respective assigning Lender prior to such assignment, then the Borrowers shall
not be obligated to pay such increased costs (although the Borrowers, 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). Notwithstanding anything to the contrary contained above, at any time after the
termination of the Total Credit-Linked Commitment, if any Letters of Credit or Bank Guaranties
remain outstanding, assignments may be made as provided above, except that the respective
assignment shall be of a portion of the respective CL Lender’s participation in Letters of Credit
and Bank Guaranties (and the related share of its Credit-Linked Deposit), although any such
assignment effected after the termination of
the Total Credit-Linked Commitment shall not release
the assigning CL Lender from its obligations as a participant with respect to outstanding Letters
of Credit or Bank Guaranties (although the respective assignee may agree, as between itself and the
respective assigning CL Lender, that it shall be responsible for such amounts). The Credit-Linked
Deposit funded by any CL Lender shall not be released in connection with any assignment of its
Credit-Linked Commitment, but shall instead be purchased (to the extent of the CL Percentage so
assigned) by the relevant assignee and
continue to be held for application (if not already applied) pursuant to Section 2 in respect
of such assignee’s obligations under the Credit-Linked Commitment assigned to it.




          (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, without the consent of the Administrative Agent or either Borrower, any
Lender which is a fund may pledge all or any portion of its Notes or Loans to its trustee or to a
collateral agent or to another creditor providing credit or credit support to such Lender in
support of its




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obligations to such trustee, such Collateral Agent or a holder of, or any other
representative of a holder of, such obligations, or such other creditor, 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 pledge or assignee for such Lender
as a party hereto.




          13.05 No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent,
the Collateral Agent or any Lender in exercising any right, power or privilege hereunder or under
any other Credit Document and no course of dealing between any Credit Party and any Agent, the
Collateral Agent 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 and remedies herein expressly provided are cumulative and not exclusive
of any rights or remedies which any Agent, the Collateral Agent 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 any Agent, the Collateral Agent or any Lender to any other or further action in any
circumstances without notice or demand.




          13.06 Payments Pro Rata.




          (a) The Administrative Agent agrees that promptly after its receipt of each payment from or on
behalf of any Credit Party in respect of any Obligations of such Credit Party, it shall, except as
otherwise provided in this Agreement, distribute such payment to the Lenders (other than any Lender
that has consented in writing to waive its pro rata share of 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 or Fees, of a sum which with respect to the related sum or sums received by other
Lenders is in a greater proportion than the total of such Obligation then owed and due to such
Lender bears to the total of such Obligation then owed and due to all of the Lenders immediately
prior to such receipt, then such Lender receiving such excess payment shall purchase for cash
without recourse or warranty from the other Lenders an interest in the Obligations of the
respective Credit Party to such Lenders in such amount as shall result in a proportional
participation by all of the Lenders in such amount; provided that if all or any portion of
such excess amount is thereafter recovered from such Lender, 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 U.S. 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 Loan Document to be violated or to impose
additional obligations on the Borrowers, or to prevent any such violation or any such imposition
absent such change, and




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either the U.S. Borrower or the Required Lenders shall so request, the
Administrative Agent and the U.S. 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
8.01(d) 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 U.S. 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 8 and/or 9, 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 and Fees hereunder shall be made on the basis of a year of
360 days for the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or Fees are payable.




          13.08 Governing Law; Submission to Jurisdiction; Venue.




          (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 CERTAIN OF THE SUBSIDIARIES
GUARANTIES AND SECURITY DOCUMENTS, 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 located within the City of New York and, by
execution and delivery of this Agreement, each Borrower hereby irrevocably accepts for itself and
in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each Borrower hereby irrevocably designates, appoints and empowers Corporation Service
Company, with offices on the Amendment No. 3 Effective Date at 80 State Street, Albany, NY 12207,
as its designee,
appointee and agent to receive, accept and acknowledge for and on its behalf, and in respect
of its property, service of any and all legal process, summons, notices and documents which may be
served in any such action or proceeding. If for any reason such designee, appointee and agent
shall cease to be available to act as such, each Borrower agrees to designate a new designee,
appointee and agent in New York City on the terms and for the purposes of this provision reasonably
satisfactory to the Administrative Agent under this Agreement. Each Borrower hereby further
irrevocably waives any claim that any such courts lack jurisdiction over such Borrower, 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






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courts, that any such court lacks
jurisdiction over such Borrower. Each Borrower further irrevocably consents to the service of
process in any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to such Borrower, as the case may be, at its address for notices
pursuant to Section 13.03, such service to become effective 30 days after such mailing. Each
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 any Agent, the Collateral 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 any Borrower in any other jurisdiction.




          (b) EACH 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.




          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 complete set of counterparts executed by all the parties hereto shall be lodged with
each Borrower and the Administrative Agent.




          13.10 Effectiveness. This Agreement shall become effective (subject to the
immediately succeeding sentence) on the date (the “Amendment No. 3 Effective Date”) on
which each of the conditions set forth in Section 3 of the Amendment No. 3 has been satisfied.




          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 thereto and 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 thereby
in the case of the following clause (i)), (i) extend the final scheduled maturity of any Loan or
Note or extend the stated maturity of any Letter of Credit or Bank Guaranty beyond the CL Maturity
Date or extend the duration of any Interest Period beyond six months, or reduce the rate or extend
the time of payment of interest (other than
as a result of any waiver of the applicability of any post-default increase in interest rates)
or Fees thereon, or reduce the principal amount thereof (except to the extent paid in cash) (it
being understood that any amendment or modification to the financial definitions in this Agreement
shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i),
notwithstanding the fact that such amendment or modification actually results in such a reduction),
(ii) release all or substantially all of the Collateral (except as expressly provided in the Credit
Documents) under all the Security Documents, (iii) amend, modify or waive any provision of this
Section 13.12 (except for technical amendments with respect to additional extensions of credit
pursuant to this Agreement which afford the protections to such additional







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extensions of credit of
the type provided to the Term Loans and Credit-Linked Commitments on the Restatement Effective
Date), (iv) reduce the percentage 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 Term Loans and Credit-Linked Commitments are included on the
Restatement Effective Date), (v) consent to the assignment or transfer by any Borrower of any of
its rights and obligations under this Agreement, or (vi) release any Borrower Guaranty or waive
compliance by either Borrower with its payment obligations under its Borrower Guaranty;
provided, further, that no such change, waiver, discharge or termination shall (p)
amend, modify or waive any condition precedent set forth in Section 6 with respect to the issuance
of Letters of Credit or Bank Guaranties, without the written consent of the Majority Lenders
holding Credit-Linked Commitments, (q) increase the Commitments of any Lender over the amount
thereof then in effect without the consent of such Lender (it being understood that waivers or
modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory
reduction in the Total Commitment shall not constitute an increase of the Commitment of any Lender,
and that an increase in the available portion of any Commitment of any Lender shall not constitute
an increase in the Commitment of such Lender), (r) without the consent of each Issuing Lender
affected and Bank Guaranty Issuer affected thereby, amend, modify or waive any provision of Section
2 or alter its rights or obligations with respect to Letters of Credit or Bank Guaranties, (s)
without the consent of the Administrative Agent, amend, modify or waive any provision of Section 12
as the same applies to the Administrative Agent or any other provision as same relates to the
rights or obligations of the Administrative Agent, (t) without the consent of each Agent affected
thereby, amend, modify or waive any provision of Section 12 as same applies to such Agent or any
other provision as same relates to the rights or obligations of such Agent, (u) without the consent
of the Collateral Agent, amend, modify or waive any provision relating to the rights or obligations
of the Collateral Agent, (v) except in cases where additional extensions of term loans are being
afforded substantially the same treatment afforded to the Term Loans pursuant to this Agreement as
in effect on the Restatement Effective Date, without the consent of the Majority Lenders of each
Tranche which is being allocated a lesser prepayment, repayment or commitment reduction as a result
of the actions described below, alter the required application of any prepayments or repayments (or
commitment reduction), as between the various Tranches, pursuant to Section 4.01 or 4.02 (excluding
Section 4.02(a)) (although the Required Lenders may waive, in whole or in part, any such
prepayment, repayment or commitment reduction, so long as the application, as amongst the various
Tranches, of any such prepayment, repayment or commitment reduction which is still required to be
made is not altered), (w) without the consent of the Majority Lenders of the respective Tranche
affected thereby, amend the definition of Majority 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 Majority Lenders on substantially the same basis as the
extensions of Loans and Commitments are included on the Restatement Effective Date), (x) except in
cases where additional extensions of credit are being afforded substantially the same treatment
afforded to
the Term Loans and Credit-Linked Commitments pursuant to Section 1.14 (as in effect on
the Restatement Effective Date) and except for technical amendments which are consistent with the
intent of the provisions of such Section and do not adversely affect the protections afforded to
the Lenders pursuant to said Section, without the consent of the Majority Lenders of each Tranche
adversely affected thereby, amend, modify or waive any provisions of Section 1.14, (y) without the consent of the Supermajority Lenders of the respective
affected Tranche, reduce the amount of or extend the date of, any Scheduled Repayment under such
Tranche (except that, if additional Loans are made pursuant to a given Tranche, the Scheduled
Repayments of such Tranche may be increased on a proportionate basis without the consent otherwise
required by this clause (y)), or amend the definition of Supermajority 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 Supermajority Lenders on substantially the
same basis as the extensions of Loans and Commitments are included on the Restatement Effective
Date) or (z) without the consent of the Deposit







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Bank, amend, modify or waive any provision relating
to the rights or obligations of the Deposit Bank. Notwithstanding anything to the contrary
contained above in this Section 13.12(a), the Administrative Agent and/or the Collateral Agent
shall be permitted (x) to enter into such amendments and/or modifications to the Foreign
Subsidiaries Guaranty and the Foreign Security Documents which may be required in the discretion of
the Administrative Agent and/or the Collateral Agent which are of a technical nature and/or are, in
the judgment of the Collateral Agent, required by applicable law, in the interests of the Secured
Creditors or (in the case of Foreign Security Documents) necessary or desirable to preserve,
maintain, perfect and/or protect the security interests purported to the granted by the respective
Foreign Security Documents and (y) to enter into such releases of Collateral pledged pursuant to
Foreign Security Documents as may be reasonably requested by the U.S. Borrower for legitimate
operational reasons (e.g., the transfer of Property from one jurisdiction to another), so
long as the Fair Market Value of all Collateral so subject to release (as determined in good faith
by the U.S. Borrower) at any time does not exceed $5,000,000.




          (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 U.S.
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 U.S. Borrower if the respective
Lender’s consent is required with respect to less than all Tranches (or related Commitments), to
replace only the respective Tranche or Tranches of Commitments (and related Obligations and, if
applicable, Credit-Linked Deposits) 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 1.13 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 each
Credit-Linked Commitment and/or Incremental Term Loan Commitment of such non-consenting Lender (if
such Lender’s consent is required as a result of such Credit-Linked Commitment and/or Incremental
Term Loan Commitment), and/or repay outstanding Obligations under each Tranche of such Lender which
gave rise to the need to obtain such Lender’s consent, in accordance with Sections 3.01 and/or
4.01, provided that, unless the Commitments which are terminated and Loans and other
Obligations 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 Commitments and/or outstanding
Loans and 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 both (x)
after giving effect to the proposed action and (y) as if the Commitments, Loans and related
Obligations being terminated and/or repaid (and not replaced) were not outstanding) shall
specifically consent thereto, provided, further, that the U.S. Borrower shall not
have the right to replace a Lender, terminate its Commitment or repay its Loans or other
Obligations 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).




          (c) Notwithstanding anything to the contrary contained in clause (a) above of this Section
13.12, the respective Borrower, the Administrative Agent and each Incremental Loan Lender may, in
accordance with the provisions of Section 1.15, enter into an Incremental Term Loan Commitment
Agreement, provided that after the execution and delivery by the respective Borrower, the
Administrative Agent and each such Incremental Loan Lender of such Incremental Term Loan Commitment
Agreement, such Incremental Term Loan Commitment Agreement may thereafter only be modified in
accordance with the requirements of clause (a) above of this Section 13.12.




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          (d) For purposes of Section 13.12(a), (i) a Voting Participant shall be deemed to be a
“Lender” holding the portion of the Credit-Linked Commitment (and related Obligations), Incremental
Term Loan Commitment and/or outstanding Term Loans of a given Tranche of any Lender (other than a
Defaulting Lender) in which it purchased a participation (and to have the voting rights of such
Lender for the respective such Tranche) and (ii) a Lender (other than a Defaulting Lender) which
has sold a participation in a portion of its Credit-Linked Commitment (and related Obligations),
Incremental Term Loan Commitment and/or outstanding Term Loans of any Tranche to a Voting
Participant shall be deemed to hold a Credit-Linked Commitment (and related Obligations), an
Incremental Term Loan Commitment or outstanding Term Loans of the respective Tranche, as the case
may be, in each case, as reduced by the amount of the participations therein sold to a Voting
Participant.




          13.13 Survival. All indemnities set forth herein including, without limitation, in
Sections 1.10, 1.11, 2A.06, 2B.06, 4.04, 12.07, 13.01 and 13.17, shall survive the execution and
delivery of this Agreement, the making of the Loans and the issuance of the Letters of Credit and
Bank Guaranties and the repayment in full of the Loans and the other Obligations. With respect to
the Original Lenders and Original Agents, all indemnities set forth in the Original Credit
Agreement, including without limitation, in Sections 1.10, 1.11, 2A.06, 2B.06, 4.04, 12.07, 13.01
and 13.17 thereof shall survive the amendment and restatement of the Original Credit Agreement
pursuant to this Agreement and the repayment of any outstanding Obligations (as defined in the
Original Credit Agreement) thereunder, as fully as if same were set forth herein in their entirety.




          13.14 Domicile of Loans and Commitments. Each Lender may transfer and carry its Loans
and/or Commitments at, to or for the account of any branch 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 1.10, 1.11, 2A.06, 2B.06 or 4.04 from those being charged by the respective
Lender prior to such transfer, then the Borrowers shall not be obligated to pay such increased
costs (although the Borrowers 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 Confidentiality.




          (a) Each of the Lenders agrees that it will use its reasonable efforts not to disclose without
the prior consent of either Borrower (other than to its directors, employees, auditors, counsel or
other professional advisors, to affiliates or to another Lender if the Lender or such Lender’s
holding or parent company in its sole discretion determines that any such party should have access
to such information) any information with respect to the U.S. Borrower or any of its Subsidiaries
which is now or in the future furnished pursuant to this Agreement; provided that any
Lender may disclose any such information (a) as has become generally available to the public, (b)
as may be required or appropriate (x) 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
or (y) in connection with any request or requirement of any such regulatory body, (c) as may
be required or appropriate in response to any summons or subpoena or in connection with any
litigation, (d) to comply with any law, order, regulation or ruling applicable to such Lender, (e)
to the extent reasonably required in connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder and
(f) to any creditor or any prospective transferee or participant in connection with any
contemplated transfer or participation of any of the Obligations or any interest therein by such
Lender; provided that such creditor or prospective transferee or participant agrees to be
bound by this Section 13.15 to the same extent as such Lender. Each Borrower






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hereby acknowledges
and agrees that each Lender may share with any of its affiliates or its investment advisors any
information related to the U.S. Borrower or any of its Subsidiaries (including, without limitation,
any nonpublic customer information regarding the creditworthiness of such entities),
provided that such Persons shall be subject to the provisions of this Section 13.15 to the
same extent as such Lender and shall only use such information in connection with matters relating
to this Agreement.




          (b) Each Borrower hereby represents and acknowledges that, to the best of its knowledge,
neither any Agent nor any Lender, nor any employees or agents of, or other persons affiliated with,
any Agent or any Lender, have directly or indirectly made or provided any statement (oral or
written) to such Borrower or to any of its employees or agents, or other persons affiliated with or
related to such Borrower (or, so far as such Borrower is aware, to any other person), as to the
potential tax consequences of the transaction contemplated by this Agreement.




          (c) Neither the Agents nor the Lenders provide accounting, tax or legal advice.
Notwithstanding any express or implied claims of exclusivity or proprietary rights, each Borrower,
each Agent and each Lender hereby agree and acknowledge that each Borrower, each Agent and each
Lender (and each of their employees, representatives or other agents) are authorized to disclose to
any and all persons, beginning immediately upon commencement of their discussions and without
limitation of any kind, the tax treatment and tax structure of the transactions contemplated
hereby, and all materials of any kind (including opinions or other tax analyses) that are provided
to either Borrower any Agent or any Lender relating to such tax treatment and tax structure. In
this regard, each Borrower, each Agent and each Lender acknowledge and agree that the disclosure of
the tax treatment and tax structure of the transactions contemplated hereby is not limited in any
way by an express or implied understanding or agreement, oral or written (whether or not such
understanding or agreement is legally binding). For purposes of this authorization, “tax” means
United States Federal income tax, “tax treatment” means the purported or claimed Federal income tax
treatment of the transaction, and “tax structure” means any fact that may be relevant to
understanding the purported or claimed Federal income tax treatment of the transaction. This
paragraph is intended to reflect the understanding of each Borrower, each Agent and each Lender
that the transactions contemplated hereby are not “confidential transactions” as that phrase is
used in Treasury Regulation § 1.6011-4(b)(3)(i), and shall be interpreted in a manner consistent
therewith. Nothing herein is intended to imply that any of each Borrower, each Agent and each
Lender made or provided a statement, oral or written, to, or for the benefit of, any of each other
as to any potential tax consequences that are related to, or may result from, the transactions
contemplated hereby.




          13.16 Waiver of Jury Trial. 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.




          13.17 Register. The Borrowers hereby designate the Administrative Agent, and the
Administrative Agent agrees, to serve as the Borrowers’ agent, solely for purposes of this Section
13.17,
to maintain a register at one of its offices in New York, New York (the “Register”) on
which it will record the 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 Borrowers’ obligations in respect of such Loans. With respect to any Lender, the transfer of
the Commitments of such Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until such transfer is recorded on the Register
maintained by the Administrative Agent with respect to ownership of such Commitments and/or Loans
prior to such recordation all amounts owing to the transferor







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with respect to such Commitments
and/or Loans shall remain owing to the transferor. The registration of an assignment or transfer
of all or part of any Commitments and/or 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 Commitment and/or Loan, or as soon
thereafter as practicable, the assigning or transferor Lender shall surrender the Note evidencing
such Commitment and/or 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. The
registration of any provision of Incremental Term Loan Commitments pursuant to Section 1.15 shall
be recorded by the Administrative Agent on the Register only upon the acceptance of the
Administrative Agent of a properly executed and delivered Incremental Term Loan Commitment
Agreement. Coincident with the delivery of such Incremental Term Loan Commitment Agreement for
acceptance and registration of the provision of an Incremental Term Loan Commitment, or as soon
thereafter as practicable, to the extent requested by such Incremental Term Loan Lenders,
Incremental Term Notes shall be issued, at the respective Borrower’s expense, to such Incremental
Term Loan Lenders, to be in conformity with Section 1.05 (with appropriate modification) to the
extent needed to reflect the Incremental Term Loan Commitments and outstanding Incremental Term
Loans made by such Incremental Term Loan Lender. The Borrowers agree to indemnify the
Administrative Agent from and against any and all losses, claims, damages and liabilities of
whatsoever nature that may be imposed on, asserted against or incurred by the Administrative Agent
in performing its duties under this Section 13.17.




          13.18 English Language. This Agreement and all other Credit Documents shall be in the
English language, except as required by applicable local law and, with respect to each of the
Security Documents governed by the laws of Italy or otherwise related to Collateral located in
Italy, as the Administrative Agent may reasonably require (in which event certified English
translations thereof shall, upon the request of the Administrative Agent, be provided by the U.S.
Borrower to the Administrative Agent). All documents, certificates, reports or notices to be
delivered or communications to be given or made by any party hereto pursuant to the terms of this
Agreement or any other Credit Document shall be in the English language or, if originally written
in another language, shall, upon request of the Administrative Agent, be accompanied by an accurate
English translation upon which the other parties hereto shall have the right to rely for all
purposes of this Agreement and the other Credit Documents.




          13.19 Special Provisions Regarding Pledges of Equity Interests in, and Promissory Notes
Owed by, Persons Not Organized in Qualified Jurisdictions; Special Provisions Regarding Foreign
Security Documents and Secured Hedge Counterparties.




          (a) 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 Equity Interests in, various Persons owned by the respective
Credit Party (to the extent not constituting Excluded Collateral) 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 each Qualified Jurisdiction to perfect the
security interests in the Equity Interests of, and promissory notes issued by, any Person organized
under the laws of said jurisdictions (in each case, to the extent such Equity Interests or
promissory notes are owned by any Credit Party and do not constitute Excluded Collateral). 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 Equity Interests in, any Person organized
under the laws of a jurisdiction other than those specified in the immediately





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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 Equity Interests are pledged, under the Security Documents. The
Borrowers hereby agree that, following any request by the Administrative Agent or Required Lenders
to do so, each Borrower shall, and shall 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
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 13.19(a), all such actions shall be
taken in accordance with the provisions of this Section 13.19(a) and Section 8.11 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 Equity Interests in, and promissory notes issued by, Persons organized under
laws of jurisdictions other than Qualified Jurisdictions) not required to be taken in accordance
with the provisions of this Section 13.19(a), provided that to the extent any
representation or warranty would not be true because the foregoing actions were not taken, the
respective representation of warranties shall be required to be true and correct in all material
respects at such time as the respective action is required to be taken in accordance with the
foregoing provisions of this Section 13.19(a) or pursuant to Section 8.11.




          (b) The parties hereto acknowledge and agree that certain Foreign Security Documents executed
and delivered by the Credit Parties on or prior to the Amendment No. 3 Effective Date secure, inter
alia, obligations of any Lender (or any affiliate of a Lender) which is a counterparty to certain
Interest Rate Protection Agreements and Other Hedging Agreements (as further provided in each such
Foreign Security Document) and that it is the parties intent that each such Foreign Security
Document shall be amended, as provided in Article III of the Foreign Subsidiaries Guaranty
Acknowledgement and/or Amendment, such that (after giving effect to such amendment) the foregoing
secured counterparties shall be amended to include the Secured Hedge Counterparties.
Notwithstanding the foregoing, the parties hereto further acknowledge and agree that, as of the
Amendment No. 3 Effective Date, no other amendments, modifications or supplements to the foregoing
Foreign Security Documents under the laws of any jurisdiction to effect the intent in the foregoing
sentence have occurred. The Borrowers hereby agree that, within 90 days after the Amendment No. 3
Effective Date (or such longer period as may be agreed by the Administrative Agent), each Borrower
shall, and shall cause its Subsidiaries to, take such actions (including, without limitation,
amending, modifying or supplementing each such Foreign Security Document 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 Required
Lenders to be necessary or desirable in order to effect the foregoing amendments to each such
Foreign Security Document. 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 not required
to be taken in
accordance with the provisions of this Section 13.19(b), provided that to the extent
any representation or warranty would not be true because the foregoing actions were not taken, the
respective representation of warranties shall be required to be true and correct in all material
respects at such time as the respective action is required to be taken in accordance with the
foregoing provisions of this Section 13.19(b) or pursuant to Section 8.11.




          13.20 Powers of Attorney; etc. The U.S. Borrower is hereby authorized by, and on
behalf of, the Bermuda Borrower to give Notices of Borrowing, Notices of Conversion and other
notices




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and directions in connection with the extensions of credit and repayments thereof to be
made pursuant to this Agreement to the Bermuda Borrower (including without limitation notices as to
the application of proceeds of such extensions of credit). The Bermuda Borrower hereby grants to
the U.S. Borrower and the U.S. Borrower an irrevocable power-of attorney, in the Bermuda Borrower’s
name, to take the actions contemplated above in this Section 13.20 and in the last sentence of
Section 1.13 hereof. Furthermore, the Bermuda Borrower agrees that the Agents and the Lenders may
at any time rely upon any notices, instructions or other information furnished by the U.S.
Borrower.




          13.21 Waiver of Sovereign Immunity. Each of the Borrowers, in respect of itself, its
Subsidiaries, its process agents, and its properties and revenues, hereby irrevocably agrees that,
to the extent that such Borrower, its Subsidiaries or any of its properties has or may hereafter
acquire any right of immunity, whether characterized as sovereign immunity or otherwise, from any
legal proceedings, whether in the United States, any other Qualified Jurisdiction or elsewhere, to
enforce or collect upon the Loans or any Credit Document or any other liability or obligation of
such Borrower or any of its Subsidiaries related to or arising from the transactions contemplated
by any of the Credit Documents, including, without limitation, immunity from service of process,
immunity from jurisdiction or judgment of any court or tribunal, immunity from execution of a
judgment, and immunity of any of its property from attachment prior to any entry of judgment, or
from attachment in aid of execution upon a judgment, such Borrower, for itself and on behalf of its
Subsidiaries, hereby expressly waives, to the fullest extent permissible under applicable law, any
such immunity, and agrees not to assert any such right or claim in any such proceeding, whether in
the United States, any other Qualified Jurisdiction, or elsewhere. Without limiting the generality
of the foregoing, each Borrower further agrees that the waivers set forth in this Section 13.21
shall have the fullest extent permitted under the Foreign Sovereign Immunities Act of 1976 of the
United States and are intended to be irrevocable for purposes of such Act.




          13.22 Judgment Currency.




          (a) The Credit Parties’ obligations hereunder and under the other Credit Documents to make
payments in Dollars (or, in the case of a Letter of Credit denominated in an Alternative Currency,
the Dollar Equivalent thereof) (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 any Agent or the respective Lender of the full amount of the
Obligation Currency expressed to be payable to such Agent or such Lender under this Agreement or
the other Credit Documents. If for the purpose of obtaining or enforcing judgment against any
Credit Party 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, and, in the case of other currencies, 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 day on which the judgment is given (such day being
hereinafter referred to as the “Judgment Currency Conversion Date”).




          (b) 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 Borrower covenants and agrees
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 purchased with the amount of Judgment Currency stipulated
in the judgment or judicial award at the rate or exchange prevailing on the Judgment Currency
Conversion Date.




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          (c) For purposes of determining the Dollar Equivalent or any other rate of exchange for this
Section 13.22, such amounts shall include any premium and costs payable in connection with the
purchase of the Obligation Currency.




          13.23 Special Acknowledgments. By their execution and delivery hereof, the Lenders
party hereto hereby acknowledge (i) that the guarantee of each Bermuda Partnership Partner made
pursuant to the U.S. Subsidiaries Guaranty is limited to the Obligations of the U.S. Borrower under
the Credit Documents and the obligations of the U.S. Borrower and its Domestic Subsidiaries under
Interest Rate Protection Agreements and Other Hedging Agreements with Secured Hedge Counterparties,
all on the terms as more specifically provided therein, (ii) the Bermuda Partnership has not
entered into any Credit Documents and, as such, is not a Credit Party (but is otherwise subject to
the provisions of Sections 9.01(b) and (c)) and (iii) the obligations secured pursuant to the
Security Documents are not secured by any Excluded Collateral.




          13.24 Special Provisions Relating to Amendment and Restatement.




          (a) The Required Lenders under, and as defined in, the Original Credit Agreement hereby
consent to the “refinancing indebtedness” under this Agreement being treated as “indebtedness
pursuant to the Credit Agreement” for purposes of the U.S. Pledge Agreement and the Intercompany
Subordination Agreement. The U.S. Borrower, for its part, hereby gives notice that the refinancing
indebtedness under this Agreement shall be treated as “issued under the Credit Agreement” for
purposes of the U.S. Pledge Agreement and the Intercompany Subordination Agreement.




          (b) The parties hereto acknowledge and agree that:





     (i) Holdings and its Subsidiaries (as defined in the Original Credit Agreement)
executed and delivered the Security Documents (as defined in the Original Credit Agreement)
in favor of the Collateral Agent on behalf of the Secured Creditors (as defined in the
Original Credit Agreement) to secure the payment and performance of, inter
alia, the Obligations (as defined in the respective such Security Documents);




     (ii) the security interests granted to the Collateral Agent on behalf of the Secured
Creditors pursuant to the Security Documents (as defined in the Original Credit Agreement)
shall remain outstanding and in full force and effect, without interruption or impairment of
any kind, but subject to the provisions of the Intercreditor Agreement, in accordance with
the terms of such Security Documents and shall continue to secure the Obligations (as
defined in such Security Documents);




     (iii) the Obligations represent, among other things, the amendment, restatement,
renewal, extension, consolidation and modification of the Obligations (as defined in the
Original Credit Agreement) arising in connection with the Original Credit Agreement and
other Credit Documents (as defined in the Original Credit Agreement) executed in connection
therewith; and




     (iv) (a) the provisions of the Original Credit Agreement, to the extent restated,
renewed, extended, consolidated, amended and modified hereby, are hereby superseded and
replaced by the provisions hereof; (b) the Notes restate, renew, extend, consolidate, amend,
modify, replace, are substituted for and supersede, but do not extinguish, the Obligations
(as defined in the Original Credit Agreement) evidenced by the Notes (as defined in the
Original Credit Agreement) issued pursuant to the Original Credit Agreement; and (c) the
execution and delivery of this Agreement, and the performance by the Borrowers of their
respective obligations hereunder, shall not constitute a novation.



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          13.25 USA Patriot Act. Each Lender subject to the USA Patriot Act (Title 111 of Pub.
L. 107-56 (signed into law October 26, 2001)) hereby notifies each Borrower that pursuant to the
requirements of the Act, it is required to obtain, verify and record information that identifies
the Borrowers and the other Credit Parties and other information that will allow such Lender to
identify the Borrowers and the other Credit Parties in accordance with the Act.




          13.26 Other Liens on Collateral; Terms of Intercreditor Agreement; etc.




          (a) EACH LENDER HERETO UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT LIENS SHALL BE CREATED ON THE
COLLATERAL PURSUANT TO THE ABL CREDIT AGREEMENT AND THE ABL CREDIT DOCUMENTS (AS DEFINED THEREIN),
WHICH LIENS (X) TO THE EXTENT CREATED WITH RESPECT TO ABL PRIORITY COLLATERAL, SHALL BE SENIOR TO
THE LIENS CREATED UNDER THIS AGREEMENT AND THE RELATED CREDIT DOCUMENTS (WITH THE LIENS SO CREATED
HEREUNDER AND UNDER THE OTHER CREDIT DOCUMENTS ON ABL PRIORITY COLLATERAL BEING SUBORDINATED TO
SUCH LIENS PURSUANT TO THE TERMS OF THE INTERCREDITOR AGREEMENT) AND (Y) TO THE EXTENT CREATED WITH
RESPECT TO TL PRIORITY COLLATERAL, SHALL BE REQUIRED TO BE SUBJECT TO THE SUBORDINATION PROVISIONS
(TO THE EXTENT APPLICABLE) OF THE INTERCREDITOR AGREEMENT. THE INTERCREDITOR AGREEMENT ALSO HAS
OTHER PROVISIONS WHICH ARE BINDING UPON THE LENDERS AND THE SECURED HEDGE COUNTERPARTIES PURSUANT
TO THIS AGREEMENT. PURSUANT TO THE EXPRESS TERMS OF SECTION 13.26 OF THE INTERCREDITOR AGREEMENT,
IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR AGREEMENT AND ANY OF THE CREDIT
DOCUMENTS, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL.




          (b) EACH LENDER AUTHORIZES AND INSTRUCTS THE COLLATERAL AGENT AND THE ADMINISTRATIVE AGENT TO
ENTER INTO THE INTERCREDITOR AGREEMENT ON BEHALF OF THE LENDER, AND TO TAKE ALL ACTIONS (AND
EXECUTE ALL DOCUMENTS) REQUIRED (OR DEEMED ADVISABLE) BY IT IN ACCORDANCE WITH THE TERMS OF THE
INTERCREDITOR AGREEMENT.




          (c) THE PROVISIONS OF THIS SECTION 13.26 ARE NOT INTENDED TO SUMMARIZE ALL RELEVANT PROVISIONS
OF THE INTERCREDITOR AGREEMENT, THE FORM OF WHICH IS ATTACHED AS AN EXHIBIT TO THIS AGREEMENT.
REFERENCE MUST BE MADE TO THE INTERCREDITOR AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS
THEREOF. EACH LENDER IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF THE INTERCREDITOR
AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NO AGENT (AND NONE OF ITS AFFILIATES) MAKES ANY
REPRESENTATION TO ANY LENDER AS TO THE SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN
THE INTERCREDITOR AGREEMENT. EACH LENDER IS FURTHER AWARE THAT THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT IS ALSO ACTING IN AN
ADMINISTRATIVE AND COLLATERAL AGENCY CAPACITY UNDER, AND AS DEFINED IN, THE ABL CREDIT AGREEMENT
AND THE ABL CREDIT DOCUMENTS (AS DEFINED THEREIN), AND LENDER HEREBY IRREVOCABLY WAIVES ANY
OBJECTION THERETO OR CAUSE OF ACTION ARISING THEREFROM.




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          13.27 Post-Closing Actions. Notwithstanding anything to the contrary contained in
this Agreement or the other Credit Documents, the parties hereto acknowledge and agree that:





     1. Real Property. The actions relating to the Mortgages and Real Property of
U.S. Borrower and its Subsidiaries described on Part A of Schedule XVIII shall be completed
in accordance with Part A of said Schedule XVIII.




     2. Actions by Various Foreign Subsidiaries Relating to Security Documents. The
U.S. Borrower and its Subsidiaries shall be required to take the actions specified in Part B
of Schedule XVIII as promptly as practicable, and in any event within the time periods set
forth in Part B of said Schedule XVIII. The provisions of Part B of said Schedule XVIII
shall be deemed incorporated by reference herein as fully as if set forth herein in its
entirety.




     3. Miscellaneous Actions by Various Subsidiaries of U.S. Borrower. The U.S.
Borrower and its Subsidiaries shall be required to take the actions specified in Part C of
Schedule XVIII as promptly as practicable, and in any event within the time periods set
forth in Part C of said Schedule XVIII. The provisions of Part C of said Schedule XVIII
shall be deemed incorporated by reference herein as fully as if set forth herein in its
entirety.


All provisions of this Credit Agreement and the other Credit Documents (including, without
limitation, all conditions precedent, representations, warranties, covenants, events of default and
other agreements herein and therein) shall be deemed modified to the extent necessary to effect the
foregoing (and to permit the taking of the actions described above within the time periods required
above, rather than as otherwise provided in the Credit Documents); provided that (x) to the
extent any representation and warranty would not be true because the foregoing actions were not
taken on the Amendment No. 3 Effective Date the respective representation and warranty shall be
required to be true and correct in all material respects at the time the respective action is taken
(or was required to be taken) in accordance with the foregoing provisions of this Section 13.27 and
(y) all representations and warranties relating to the Security Documents shall be required to be
true immediately after the actions required to be taken by this Section 13.27 have been taken (or
were required to be taken). The acceptance of the benefits of each Credit Event shall constitute a
covenant and agreement by each Borrower to each of the Lenders that the actions required pursuant
to this Section 13.27 will be, or have been, taken within the relevant time periods referred to in
this Section 13.27 and that, at such time, all representations and warranties contained in this
Credit Agreement and the other Credit Documents shall then be true and correct without any
modification pursuant to this Section 13.27. The parties hereto acknowledge and agree that the
failure to take any of the actions required above, within the relevant time periods required above,
shall give rise to an immediate Event of Default pursuant to this Agreement.




          Section 14. Borrower Guaranty.




          14.01 The Guaranty. In order to induce the Lenders to enter into this Agreement and
to extend credit hereunder and to induce the Secured Hedge Counterparties to enter into Interest
Rate Protection Agreements or Other Hedging Agreements, and in recognition of the direct benefits
to be received by each Borrower from the proceeds of the Loans, the issuance of the Letters of
Credit and Bank Guaranties, the entering into of Interest Rate Protection Agreements or Other
Hedging Agreements, each Borrower hereby agrees with the Lenders and the Secured Hedge Counterparties as follows: each
Borrower hereby unconditionally and irrevocably guarantees, as primary obligor and not merely as
surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of
any and all of its Relevant Guaranteed Obligations to the Guaranteed Creditors. For the avoidance
of doubt, the “Relevant Guaranteed Obligations” of the U.S. Borrower include, without limitation,
all Obligations of the Bermuda Borrower under this Agreement and such Obligations. If any or all
of the Relevant Guaranteed Obliga-






-155-









 







tions of either Borrower to the Guaranteed Creditors becomes due
and payable hereunder, each Borrower unconditionally promises to pay such indebtedness to the
Guaranteed Creditors, or order, on demand, together with any and all expenses which may be incurred
by the Guaranteed Creditors in collecting any of the Relevant Guaranteed Obligations. This
Borrower Guaranty is a guaranty of payment and not of collection. This Borrower Guaranty is a
continuing one and all liabilities to which it applies or may apply under the terms hereof shall be
conclusively presumed to have been created in reliance hereon. If claim is ever made upon any
Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on
account of any of the Relevant Guaranteed Obligations and any of the aforesaid payees repays all or
part of said amount by reason of (i) any judgment, decree or order of any court or administrative
body having jurisdiction over such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with any such claimant (including any Relevant
Guaranteed Party), then and in such event the respective Borrower agrees that any such judgment,
decree, order, settlement or compromise shall be binding upon such Credit Agreement Party,
notwithstanding any revocation of this Borrower Guaranty or any other instrument evidencing any
liability of any Relevant Guaranteed Party, and each Borrower shall be and remain liable to the
aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such
amount had never originally been received by any such payee.




          14.02 Bankruptcy. Additionally, each Borrower unconditionally and irrevocably
guarantees the payment of any and all of the Relevant Guaranteed Obligations to the Guaranteed
Creditors whether or not due or payable by any Relevant Guaranteed Party upon the occurrence of any
of the events specified in Section 10.05, and unconditionally promises to pay such indebtedness to
the Guaranteed Creditors, or order, on demand.




          14.03 Nature of Liability. The liability of each Borrower hereunder is exclusive and
independent of any security for or other guaranty of the Relevant Guaranteed Obligations whether
executed by such Borrower, any other guarantor or by any other party, and the liability of each
Borrower hereunder is not affected or impaired by (a) any direction as to application of payment by
any Relevant Guaranteed Party or any other party, or (b) any other continuing or other guaranty,
undertaking or maximum liability of a guarantor or of any other party as to the Relevant Guaranteed
Obligations, or (c) any payment on or in reduction of any such other guaranty or undertaking, or
(d) any dissolution, termination or increase, decrease or change in personnel by any Relevant
Guaranteed Party, or (e) any payment made to the Guaranteed Creditors on the Relevant Guaranteed
Obligations which any such Guaranteed Creditor repays to any Relevant Guaranteed Party pursuant to
court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and each Borrower waives any right to the deferral or modification of its obligations
hereunder by reason of any such proceeding, or (f) any action or inaction of the type described in
Section 14.05, or (g) the lack of validity or enforceability of any Credit Document or any other
instrument relating thereto.




          14.04 Independent Obligation. No invalidity, irregularity or unenforceability of all
or any part of the Relevant Guaranteed Obligations or of any security therefor shall affect, impair
or be a defense to this Borrower Guaranty, and this Borrower Guaranty shall be primary, absolute
and unconditional notwithstanding the occurrence of any event or the existence of any other
circumstances which might constitute a legal or equitable discharge of, or a defense available to,
a surety or guarantor except
indefeasible payment in full in cash of the Relevant Guaranteed Obligations. The obligations
of each Borrower hereunder are independent of the obligations of any Relevant Guaranteed Party, any
other guarantor or any other party and a separate action or actions may be brought and prosecuted
against either Borrower whether or not action is brought against any Relevant Guaranteed Party, any
other guarantor or any other party and whether or not any Relevant Guaranteed Party, any other
guarantor or any other party be joined in any such action or actions. Each Borrower waives, to the
full extent permitted by law, the






-156-









 







benefit of any statute of limitations affecting its liability
hereunder or the enforcement thereof. Any payment by any Relevant Guaranteed Party or other
circumstance that operates to toll any statute of limitations as to such Relevant Guaranteed Party
shall operate to toll the statute of limitations as to the relevant Borrower.




          14.05 Authorization. Each Borrower authorizes the Guaranteed Creditors without notice
or demand (except as shall be required by applicable statute and cannot be waived), and without
affecting or impairing its liability hereunder, from time to time to:





     (a) change the manner, place or terms of payment of, and/or change or extend the time
of payment of, renew, increase, accelerate or alter, any of the Relevant Guaranteed
Obligations (including any increase or decrease in the rate of interest thereon), any
security therefor, or any liability incurred directly or indirectly in respect thereof, and
this Borrower Guaranty shall apply to the Relevant Guaranteed Obligations as so changed,
extended, renewed, increased or altered;




     (b) take and hold security for the payment of the Relevant Guaranteed Obligations and
sell, exchange, release, impair, surrender, realize upon or otherwise deal with in any
manner and in any order any property by whomsoever at any time pledged or mortgaged to
secure, or howsoever securing, the Relevant 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 any Relevant Guaranteed
Party or others or otherwise act or refrain from acting;




     (d) release or substitute any one or more endorsers, guarantors, any Relevant
Guaranteed Party or other obligors;




     (e) settle or compromise any of the Relevant 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 any Relevant Guaranteed Party to their
respective creditors other than the Guaranteed Creditors;




     (f) apply any sums by whomsoever paid or howsoever realized to any liability or
liabilities of any Relevant Guaranteed Party to the Guaranteed Creditors regardless of what
liability or liabilities of such Relevant Guaranteed Party remain unpaid;




     (g) consent to or waive any breach of, or any act, omission or default under, this
Agreement, any other Credit Document, any Interest Rate Protection Agreement or Other
Hedging Agreement or any of the instruments or agreements referred to herein or therein, or
otherwise amend, modify or supplement this Agreement, any other Credit Document, any
Interest Rate Protection Agreement or Other Hedging Agreement or any of such other
instruments or agreements; and/or




     (h) take any other action that would, under otherwise applicable principles of common
law, give rise to a legal or equitable discharge of, or a defense available to, such
Borrower from its liabilities under this Borrower Guaranty.



-157-









 





          14.06 Reliance. It is not necessary for the Guaranteed Creditors to inquire into the
capacity or powers of any Relevant Guaranteed Party or the officers, directors, partners or agents
acting or purporting to act on their behalf, and any Relevant Guaranteed Obligations made or
created in reliance upon the professed exercise of such powers shall be guaranteed hereunder.




          14.07 Subordination. Any of the indebtedness of any Relevant Guaranteed Party now or
hereafter owing to any Borrower is hereby subordinated to the Relevant Guaranteed Obligations of
such Relevant Guaranteed Party owing to the Guaranteed Creditors; and if the Administrative Agent
so requests at a time when an Event of Default exists, all such indebtedness of such Relevant
Guaranteed Party to such Borrower shall be collected, enforced and received by such Borrower in
trust for the benefit of the Guaranteed Creditors and be paid over to the Administrative Agent on
behalf of the Guaranteed Creditors on account of the Relevant Guaranteed Obligations of such
Relevant Guaranteed Party to the Guaranteed Creditors, but without affecting or impairing in any
manner the liability of either Borrower under the other provisions of this Borrower Guaranty.
Prior to the transfer by either Borrower of any note or negotiable instrument evidencing any of the
indebtedness of any Relevant Guaranteed Party to such Borrower, such Borrower shall mark such note
or negotiable instrument with a legend that the same is subject to this subordination. Without
limiting the generality of the foregoing, each Borrower hereby agrees with the Guaranteed Creditors
that it will not exercise any right of subrogation which it may at any time otherwise have as a
result of this Borrower Guaranty (whether contractual, under Section 509 of the Bankruptcy Code or
otherwise) until all Relevant Guaranteed Obligations have been irrevocably paid in full in cash.




          14.08 Waiver.




          (a) Each Borrower waives any right (except as shall be required by applicable statute and
cannot be waived) to require any Guaranteed Creditor to (i) proceed against any other Relevant
Guaranteed Party, any other guarantor or any other party, (ii) proceed against or exhaust any
security held from any Relevant Guaranteed Party, any other guarantor or any other party or (iii)
pursue any other remedy in any Guaranteed Creditor’s power whatsoever. Each Borrower waives any
defense based on or arising out of any defense of any Relevant Guaranteed Party, any other
guarantor or any other party, other than indefeasible payment in full in cash of the Relevant
Guaranteed Obligations, based on or arising out of the disability of any Relevant Guaranteed Party,
any other guarantor or any other party, or the unenforceability of the Relevant Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause of the liability of
any Relevant Guaranteed Party other than indefeasible payment in full in cash of the Relevant
Guaranteed Obligations. The Guaranteed Creditors may, at their election, foreclose on any security
held by the Administrative Agent, the Collateral Agent or any other Guaranteed Creditor by one or
more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable (to the extent such sale is permitted by applicable law), or exercise any other right or
remedy the Guaranteed Creditors may have against any Relevant Guaranteed Party or any other party,
or any security, without affecting or impairing in any way the liability of any Borrower hereunder
except to the extent the Relevant Guaranteed Obligations have been indefeasibly paid in full in
cash. Each Borrower waives any defense arising out of any such election by the Guaranteed
Creditors, even though such election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of such Borrower against any Relevant Guaranteed Party or any
other party or any security.




          Each Borrower 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 Borrower Guaranty, and notices of the existence, creation or
incurring of new or additional Relevant Guaranteed Obligations. Each Borrower assumes all
responsibility for being and keep-




-158-









 







ing itself informed of each Relevant Guaranteed Party’s financial
condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the
Relevant Guaranteed Obligations and the nature, scope and extent of the risks which such Borrower
assumes and incurs hereunder, and agrees that the Guaranteed Creditors shall have no duty to advise
any Borrower of information known to them regarding such circumstances or risks.




          (b) Until such time as the Relevant Guaranteed Obligations have been paid in full in cash,
each Borrower hereby waives all rights of subrogation which it may at any time otherwise have as a
result of this Borrower Guaranty (whether contractual, under Section 509 of the Bankruptcy Code, or
otherwise) to the claims of the Guaranteed Creditors against any Relevant Guaranteed Party or any
other guarantor of the Relevant Guaranteed Obligations and all contractual, statutory or common law
rights of reimbursement, contribution or indemnity from any Relevant Guaranteed Party or any other
guarantor which it may at any time otherwise have as a result of this Borrower Guaranty.




          (c) Each U.S. Credit Party hereby acknowledges and affirms that it understands that to the
extent the Relevant Guaranteed Obligations are secured by Real Property located in California, such
U.S. Credit Party shall be liable for the full amount of the liability hereunder notwithstanding
the foreclosure on such Real Property by trustee sale or any other reason impairing such U.S.
Credit Party’s or any Guaranteed Creditor’s right to proceed against any Relevant Guaranteed Party
or any other guarantor of the Relevant Guaranteed Obligations. In accordance with Section 2856 of
the California Code of Civil Procedure, each U.S. Credit Party hereby waives:





     (i) all rights of subrogation, reimbursement, indemnification, and contribution and any
other rights and defenses that are or may become available to such U.S. Credit Party by
reason of Sections 2787 to 2855, inclusive, 2899 and 3433 of the California Code of Civil
Procedure;




     (ii) all rights and defenses that such U.S. Credit Party may have because the Relevant
Guaranteed Obligations are secured by Real Property located in California, meaning, among
other things, that: (A) the Guaranteed Creditors may collect from such U.S. Credit Party
without first foreclosing on any real or personal property collateral pledged by any Credit
Party, and (B) if the Guaranteed Creditors foreclose on any Real Property collateral pledged
by any Credit Party, (1) the amount of the Relevant Guaranteed Obligations may be reduced
only by the price for which that collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price, and (2) the Guaranteed Creditors may collect
from such U.S. Credit Party even if the Guaranteed Creditors, by foreclosing on the Real
Property collateral, have destroyed any right such U.S. Credit Party may have to collect
from any Relevant Guaranteed Party, it being understood that this is an unconditional and
irrevocable waiver of any rights and defenses such U.S. Credit Party may have because the
Relevant Guaranteed Obligations are secured by Real Property (including, without limitation,
any rights or defenses based upon Section 580a, 580d or 726 of the California Code of Civil
Procedure); and




     (iii) all rights and defenses arising out of an election of remedies by the Guaranteed
Creditors, even though that election of remedies, such as a nonjudicial foreclosure with
respect to security for the Relevant Guaranteed Obligations, has destroyed such U.S. Credit
Party’s rights of
subrogation and reimbursement against any Relevant Guaranteed Party by the operation of
Section 580d of the California Code of Civil Procedure or otherwise.



          (d) Each Borrower 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 deter-




-159-









 







mined
to be contrary to any applicable law of public policy, such waivers shall be effective only to the
maximum extent permitted by law.




          14.09 Payments. All payments made by either Borrower pursuant to this Section 14
shall be made in the respective Applicable Currency in which the Relevant Guaranteed Obligations
are then due and payable (giving effect, in the circumstances contemplated by Section 1.14, to any
conversion occurring pursuant thereto). All payments made by either Borrower pursuant to this
Section 14 will be made without setoff, counterclaim or other defense, and shall be subject to the
provisions of Sections 4.03, 4.04 and 13.22.




* * * *









-160-









 





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

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	SOLVEST, LTD.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH, 

as Administrative Agent and Deposit Bank

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 














 





	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title 	 
	 














 






SCHEDULE I

GUARANTORS




Calazo Corporation

AG 1970, Inc.

AG 1971, Inc.

AG 1972, Inc.

Alyssum Corporation

Barclay Hollander Corporation

Bud Antle, Inc.

Calicahomes, Inc.

California Polaris, Inc.

CB North, LLC

CB South, LLC

Dole ABPIK, Inc.

Dole Arizona Dried Fruit and Nut Company

Dole Carrot Company

Dole Citrus

Dole DF&N, Inc.

Dole Dried Fruit and Nut Company, a California General Partnership

Dole Farming, Inc.

Dole Fresh Vegetables, Inc.

Dole Orland, Inc.

Dole Packaged Foods, LLC

E. T. Wall Company

Earlibest Orange Association, Inc.

Fallbrook Citrus Company, Inc.

Lindero Headquarters Company, Inc.

Lindero Property, Inc.

Milagro Ranch, LLC

Oceanview Produce Company

Prairie Vista, Inc.

Rancho Manana, LLC

Royal Packing Co.

Veltman Terminal Co.

Bananera Antillana (Colombia), Inc.

Clovis Citrus Association

Delphinium Corporation

Dole Berry Company, LLC

Dole Europe Company

Dole Foods Flight Operations, Inc.

Dole Northwest, Inc.

Dole Sunfresh Express, Inc.

Standard Fruit and Steamship Company

Standard Fruit Company

Sun Country Produce, Inc.

West Foods, Inc.

Cool Advantage, Inc.

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.

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.




 









 





Actividades Agricolas, S.A.,

Aero-Fumigacion Centroamericana, S.A.,

Agoura Limited,

Agrícola California, Limitada,

Agrícola Pencahue Limitada,

Agrícola Punitaqui,

Agrícola Rauquen Limitada,

Agroindustrial Del Caribe, S.A.,

Agroindustrial Alma Verde, S.A.,

Agroindustrial Pinas Del Bosque, S.A.,

Agroverde, S.A.,

Almancenes Atalanta, S.A.,

Alpha Sideral, S.A.,

Ashford Company, Limited,

Baltime Limited,

Bananera El Porvenir, S.A.,

Bananera La Paz, S.A.,

Bananera Rio Mame, S.A.,

Bancuber, S.A.,

Bienes Y Servicios S de R L D de CV,

Bienes Y Valores, S.A.,

Camarillo Limited,

Cartones San Fernando, S.A.,

Castle & Cooke Worldwide, Limited,

Clinicas Medicas Del Aguan, S.A.,

Comercial Industrial Ecuatoriana, S.A.,

Compania Agricola El Progreso, S.A.,

Compania Agricola Mazapan, S.A.,

Compania Agropecuaria El Porvenir, S.A.,

Compania Bananera Deba, S.A.,

Compania Bananera El Encanto, S.A.,

Compania Exportadora De Productos Agricolas S.C.A.,

Compania Frutos De La Tierra, S.A.,

Compania Inversiones Medicas Nacioncale, S.A.,

Compania Musa, S.A. (f/k/a Compania Financiera De Costa Rica, S.A.),

Compania Naviera Agmaresa, S.A.,

Desarrollo Bananero La Esperanza, S.A.,

Distribuidora De Productos Diversos, S.A.,

Diversificados De Costa Rica Dicori, S.A.,

Dole Chile, S.A.,

Dole China Limited,

Dole Deutschland BETEILIGUNGSGESELLSCHAFT MBH,

Dole Foods of Canada, LTD.,

Dole Fresh Fruit International Limited,

Dole Fresh Fruit Med.,

Dole Germany OHG (f/k/a Dole Fresh Fruit Europe OHG),




 









 





Dole Hong Kong Limited,

Dole International, LTD.,

Dole Italia S.P.A.,

Dole Japan, LTD.,

Dole Packaged Foods Asia (f/k/a Dole Asia LTD.),

Dole Philippines, Inc.,

Dole Shared Services Deutschland GMBH (f/k/a Dole Deutschland GMBH),

Dole Shared Services, Limited,

Eco Pinas Del Arenal S.A. (Compania Bananera Del San Rafael, S.A.),

Embalajes Standard, S.A.,

Energua S.A. Sucursali Honduras,

Equipo Pesado, S.A.,

Friocont, S.A.,

Frutban, S.A.,

Granelcont, S.A.,

Guayami, S.A.,

Hacienda La Rosalia, S.A.,

Hospital Coyoles, S.A.,

Interfruit Company Limited,

Inversiones Agrica, S.A.,

Inversiones Del Pacifico, S.A.,

Inversiones Y Valores Montecristo, S.A.,

Laboratorios Y Servicios De Meristemos, S.A.,

Mahele, Limited,

Manufacturas De Carton, S.A.,

Megabanana, S.A.,

Mendocino Limited,

Multiservicios S.A.,

Naportec, S.A.,

Paul Kempowski GmbH & Co. KG,

Pescaseroli, S.A.,

Pina Antillana, S.A.,

Plasticos, S.A.,

Productora Agricola De Atlantida, S.A.,

Productora Cartonera, S.A.,

Productos Del Litoral, S.A., as Guarantor

Redamawal, S.A.,

Reefership Marine Services, LTD.,

Roxana Farms, S.A.,

Servicios Audanales Banadole, S.A.,

Servicios E Investigaciones Aereas, S.A.,

Servicios Hondurenos de Agricultura Y Recursos De Investigacion Pinera, S.A.,

Siembranueva, S.A.,

Sociedad Agropecuaria Pimocha, C.A.,

Sogas, S.A.,

Solamerica, LTD.,





 









 






Standard Fruit Co. (Bermuda) LTD.,

Standard Fruit De Costa Rica, S.A.,

Standard Fruit De Honduras, S.A.,

Talleres Y Llantas, S.A.,

Tecnicos Y Electricistas, S.A.,

Transportes Por Mar, S.A.,

Tropical Shipping Italiana, SPA,

Union De Bananeros Ecuatorianos, S.A.,

Vigilancia Y Seguridad, S.A.,

Zanpoti, S.A.

Inversiones Doban S.A.S.

Dole Luxembourg s.a.r.l.

Dole Luxembourg II s.a.r.l.















 






	 	 	 	 	 
	 	                                                            ,

as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





[EXHIBIT B to

Amendment 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	 






-1-









 






	 	 	 	 	 
	 	 	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




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          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.



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          “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



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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



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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



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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.



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          “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 13?% Senior Secured Notes due 2014 issued
pursuant to the terms of the 13?% 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.



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          “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,



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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



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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-









 








in demnity, 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).



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          “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-



-27-









 







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



-29-









 








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



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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,



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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



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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



-45-









 








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



-46-









 








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.



-87-









 







          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.



-88-









 







          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	 	DOLE FOOD COMPANY, INC.	 	 
	   on Annex A attached hereto	 	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




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Assignor's	 	 
	 	 	Type of	 	 	 	 	 	 	 	Organization	 	 
	 	 	Organization (or,	 	 	 	 	 	 	 	Identification	 	 
	 	 	if the Assignor is	 	Registered	 	 	 	Assignor's Location	 	Number (or, if it	 	Transmitting
	Exact Legal Name of	 	an Individual, so	 	Organization?	 	Jurisdiction of	 	(for purposes of NY	 	has none, so	 	Utility?
	Assignor	 	indicate)	 	(Yes/No)	 	Organization	 	UCC § 9-307)	 	indicate)	 	(Yes/No)
	Calazo Corporation

	 	Corporation
	 	Y
	 	Arizona
	 	One Dole Drive
	 	 	02020698	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	AG 1970, Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive
	 	 	C1597059	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	AG 1971, Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive
	 	 	C1597063	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	AG 1972, Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive
	 	 	C1597062	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Alyssum Corporation

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive
	 	 	C1815356	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Barclay Hollander

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive
	 	 	C0564697	 	 	N
	    Corporation

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bud Antle, Inc.

	 	Corporation
	 	Y
	 	California
	 	639 S. Sanborn Road
	 	 	C0777840	 	 	N
	 

	 	 	 	 	 	 	 	Salinas, CA 93902	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Calicahomes, Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive
	 	 	C0474028	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	California Polaris, Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive
	 	 	C0915447	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	CB North, LLC

	 	LLC
	 	Y
	 	California
	 	One Dole Drive
	 	 	200226310119	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	CB South, LLC

	 	LLC
	 	Y
	 	California
	 	One Dole Drive
	 	 	200226310118	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole ABPIK, Inc.

	 	Corporation
	 	Y
	 	California
	 	7170 N. Financial Drive
	 	 	C1629807	 	 	N
	 

	 	 	 	 	 	 	 	Fresno, CA 93710	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Arizona Dried Fruit

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive
	 	 	C1822834	 	 	N
	    and Nut Company

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Carrot Company

	 	Corporation
	 	Y
	 	California
	 	639 S. Sanborn Road
	 	 	C1179103	 	 	N
	 

	 	 	 	 	 	 	 	Salinas, CA 93902	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 





 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Assignor's	 	 
	 	 	Type of	 	 	 	 	 	 	 	Organization	 	 
	 	 	Organization (or,	 	 	 	 	 	 	 	Identification	 	 
	 	 	if the Assignor is	 	Registered	 	 	 	Assignor's Location	 	Number (or, if it	 	Transmitting
	Exact Legal Name of	 	an Individual, so	 	Organization?	 	Jurisdiction of	 	(for purposes of NY	 	has none, so	 	Utility?
	Assignor	 	indicate)	 	(Yes/No)	 	Organization	 	UCC § 9-307)	 	indicate)	 	(Yes/No)
	Dole Citrus

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive
	 	 	C0940152	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole DF&N, Inc.

	 	Corporation
	 	Y
	 	California
	 	3366 Muscat Avenue
	 	 	C1629808	 	 	N
	 

	 	 	 	 	 	 	 	Fresno, CA 93725	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Dried Fruit and Nut

	 	General Partnership
	 	Y
	 	California
	 	One Dole Drive
	 	 	 	 	 	N
	Company, a California

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	General Partnership
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Farming, Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive
	 	 	C0454623	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Fresh Vegetables,

	 	Corporation
	 	Y
	 	California
	 	639 S. Sanborn Road
	 	 	C1177297	 	 	N
	Inc.

	 	 	 	 	 	 	 	Salinas, CA 93902	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Orland, Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive
	 	 	C0767252	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Packaged Foods, LLC

	 	LLC
	 	Y
	 	California
	 	One Dole Drive
	 	 	200600910228	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	E. T. Wall Company

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive
	 	 	C0759411	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Earlibest Orange

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive
	 	 	C0460741	 	 	N
	Association, Inc.

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fallbrook Citrus Company,

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive
	 	 	C1237504	 	 	N
	Inc.

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Lindero Headquarters

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive
	 	 	C2070249	 	 	N
	Company, Inc.

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Lindero Property, Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive
	 	 	C1698635	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Milagro Ranch, LLC

	 	LLC
	 	Y
	 	California
	 	One Dole Drive
	 	 	200421910230	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Oceanview Produce Company

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive
	 	 	C1463723	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 






-2-









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Assignor's	 	 
	 	 	Type of	 	 	 	 	 	 	 	Organization	 	 
	 	 	Organization (or,	 	 	 	 	 	 	 	Identification	 	 
	 	 	if the Assignor is	 	Registered	 	 	 	Assignor's Location	 	Number (or, if it	 	Transmitting
	Exact Legal Name of	 	an Individual, so	 	Organization?	 	Jurisdiction of	 	(for purposes of NY	 	has none, so	 	Utility?
	Assignor	 	indicate)	 	(Yes/No)	 	Organization	 	UCC § 9-307)	 	indicate)	 	(Yes/No)
	Prairie Vista, Inc.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive
	 	 	C0280565	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Rancho Manana, LLC

	 	LLC
	 	Y
	 	California
	 	One Dole Drive
	 	 	200422210034	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Royal Packing Co.

	 	Corporation
	 	Y
	 	California
	 	639 S. Sanborn Road
	 	 	C1658935	 	 	N
	 

	 	 	 	 	 	 	 	Salinas, CA 93901	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Veltman Terminal Co.

	 	Corporation
	 	Y
	 	California
	 	One Dole Drive
	 	 	C0308794	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Bananera Antillana

	 	Corporation
	 	Y
	 	Delaware
	 	100 W. 10th Street
	 	 	845992	 	 	N
	(Colombia), Inc.

	 	 	 	 	 	 	 	Wilmington, DE 19801	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Clovis Citrus Association

	 	Corporation
	 	Y
	 	Delaware
	 	One Dole Drive
	 	 	0805383	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Delphinium Corporation

	 	Corporation
	 	Y
	 	Delaware
	 	One Dole Drive
	 	 	0839429	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Berry Company, LLC

	 	LLC
	 	Y
	 	Delaware
	 	One Dole Drive
	 	 	2753691	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Europe Company

	 	Corporation
	 	Y
	 	Delaware
	 	One Dole Drive
	 	 	0486011	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Food Company, Inc.

	 	Corporation
	 	Y
	 	Delaware
	 	One Dole Drive
	 	 	3376670	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Foods Flight

	 	Corporation
	 	Y
	 	Delaware
	 	3366 Muscat Avenue
	 	 	2133517	 	 	N
	Operations, Inc.

	 	 	 	 	 	 	 	Fresno, CA 93725	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Northwest, Inc.

	 	Corporation
	 	Y
	 	Delaware
	 	80 McNeil Canyon Road
	 	 	0227108	 	 	N
	 

	 	 	 	 	 	 	 	Chelan, WA 98816	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Sunfresh Express,
Inc.

	 	Corporation
	 	Y
	 	Delaware
	 	One Dole Drive

Westlake Village, CA 91362
	 	 	2091327	 	 	N
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Standard Fruit and

	 	Corporation
	 	Y
	 	Delaware
	 	One Dole Drive
	 	 	0669719	 	 	N
	Steamship Company

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Standard Fruit Company

	 	Corporation
	 	Y
	 	Delaware
	 	One Dole Drive
	 	 	0485718	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 





-3-









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Assignor's	 	 
	 	 	Type of	 	 	 	 	 	 	 	Organization	 	 
	 	 	Organization (or,	 	 	 	 	 	 	 	Identification	 	 
	 	 	if the Assignor is	 	Registered	 	 	 	Assignor's Location	 	Number (or, if it	 	Transmitting
	Exact Legal Name of	 	an Individual, so	 	Organization?	 	Jurisdiction of	 	(for purposes of NY	 	has none, so	 	Utility?
	Assignor	 	indicate)	 	(Yes/No)	 	Organization	 	UCC § 9-307)	 	indicate)	 	(Yes/No)
	Sun Country Produce, Inc.

	 	Corporation
	 	Y
	 	Delaware
	 	One Dole Drive
	 	 	939918	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	West Foods, Inc.

	 	Corporation
	 	Y
	 	Delaware
	 	639 S. Sanborn Road
	 	 	0789683	 	 	N
	 

	 	 	 	 	 	 	 	Salinas, CA 93901	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cool Advantage, Inc.

	 	Corporation
	 	Y
	 	Florida
	 	One Dole Drive
	 	P	98000104868	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cool Care, Inc.

	 	Corporation
	 	Y
	 	Florida
	 	601 NW 12th Avenue
	 	 	J34542	 	 	N
	 

	 	 	 	 	 	 	 	Deerfield Beach, FL 33442	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Saw Grass Transport, Inc.

	 	Corporation
	 	Y
	 	Florida
	 	10055 NW 12th Street
	 	P	99000058957	 	 	N
	 

	 	 	 	 	 	 	 	Miami, FL 33172	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Blue Anthurium, Inc.

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue
	 	 	D1 87978	 	 	N
	 

	 	 	 	 	 	 	 	Wahiawa, HI 96786	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Cerulean, Inc.

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue
	 	 	D1 97231	 	 	N
	 

	 	 	 	 	 	 	 	Wahiawa, HI 96786	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Diversified, Inc.

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue
	 	 	D1 78742	 	 	N
	 

	 	 	 	 	 	 	 	Wahiawa, HI 96786	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Land Company, Inc.

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue
	 	 	D1 4	 	 	N
	 

	 	 	 	 	 	 	 	Wahiawa, HI 96786	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Packaged Foods

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue
	 	 	D1 79181	 	 	N
	Corporation

	 	 	 	 	 	 	 	Wahiawa, HI 96786	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	La Petite d’Agen, Inc.

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue
	 	 	D1 9421	 	 	N
	 

	 	 	 	 	 	 	 	Wahiawa, HI 96786	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	M K Development, Inc.

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue
	 	HI-70337 D1
	 	N
	 

	 	 	 	 	 	 	 	Wahiawa, HI 96786	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Malaga Company, Inc.

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue
	 	 	D1 79501	 	 	N
	 

	 	 	 	 	 	 	 	Wahiawa, HI 96786	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Muscat, Inc.

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue
	 	 	D1 14633	 	 	N
	 

	 	 	 	 	 	 	 	Wahiawa, HI 96786	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Oahu Transport Company,

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue
	 	 	D1 3728	 	 	N
	Limited

	 	 	 	 	 	 	 	Wahiawa, HI 96786	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 





-4-









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Assignor's	 	 
	 	 	Type of	 	 	 	 	 	 	 	Organization	 	 
	 	 	Organization (or,	 	 	 	 	 	 	 	Identification	 	 
	 	 	if the Assignor is	 	Registered	 	 	 	Assignor's Location	 	Number (or, if it	 	Transmitting
	Exact Legal Name of	 	an Individual, so	 	Organization?	 	Jurisdiction of	 	(for purposes of NY	 	has none, so	 	Utility?
	Assignor	 	indicate)	 	(Yes/No)	 	Organization	 	UCC § 9-307)	 	indicate)	 	(Yes/No)
	Wahiawa Water Company,

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue
	 	 	D1 29035	 	 	N
	Inc.

	 	 	 	 	 	 	 	Wahiawa, HI 96786	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Zante Currant, Inc.

	 	Corporation
	 	Y
	 	Hawaii
	 	1116 Whitmore Avenue
	 	 	D1 19015	 	 	N
	 

	 	 	 	 	 	 	 	Wahiawa, HI 96786	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Diversified Imports Co.

	 	Corporation
	 	Y
	 	Nevada
	 	One Dole Drive
	 	 	C9076-1987	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Assets, Inc.

	 	Corporation
	 	Y
	 	Nevada
	 	One Dole Drive
	 	 	C19261-1997	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Fresh Fruit Company

	 	Corporation
	 	Y
	 	Nevada
	 	One Dole Drive
	 	 	C6123-1985	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Holdings, Inc.

	 	Corporation
	 	Y
	 	Nevada
	 	One Dole Drive
	 	 	C7119-1983	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Logistics Services,

	 	Corporation
	 	Y
	 	Nevada
	 	One Dole Drive
	 	 	C1173-1993	 	 	N
	Inc.

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Ocean Cargo Express,

	 	Corporation
	 	Y
	 	Nevada
	 	9485 Regency Square Blvd.,
	 	 	C17227-1999	 	 	N
	Inc.

	 	 	 	 	 	 	 	Suite 425-420,	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Jacksonville, FL 32225	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dole Ocean Liner Express,

	 	Corporation
	 	Y
	 	Nevada
	 	One Dole Drive
	 	 	C6529-1993	 	 	N
	Inc.

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Renaissance Capital

	 	Corporation
	 	Y
	 	Nevada
	 	One Dole Drive
	 	 	C12741-1995	 	 	N
	Corporation

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Sun Giant, Inc.

	 	Corporation
	 	Y
	 	Nevada
	 	One Dole Drive
	 	 	C9306-1987	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DNW Services Company

	 	Corporation
	 	Y
	 	Washington
	 	One Dole Drive
	 	 	601-881-469	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pacific Coast Truck

	 	Corporation
	 	Y
	 	Washington
	 	One Dole Drive
	 	 	601-640-771	 	 	N
	Company

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pan-Alaska Fisheries, Inc.

	 	Corporation
	 	Y
	 	Washington
	 	One Dole Drive
	 	 	578-035-177	 	 	N
	 

	 	 	 	 	 	 	 	Westlake Village, CA 91362	 	 	 	 	 	 







-5-











 





SCHEDULE I




LENDER COMMITMENTS




LENDER COMMITMENTS




	 	 	 	 	 	 	 	 	 
	 	 	Tranche B-1	 	 	Tranche C-1	 
	 	 	Term Loan	 	 	Term Loan	 
	Lender	 	Commitment	 	 	Commitment	 
	Deutsche Bank AG New York Branch
	 	$	250,000,000	 	 	$	600,000,000	 






 









 






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






 









 






SCHEDULE III




REAL PROPERTIES



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 III to complete such Schedule III.








 









 








SCHEDULE IV




EXISTING INDEBTEDNESS



The schedule of Existing Indebtedness separately furnished to the Administrative Agent is
incorporated herein by reference.







 









 








SCHEDULE V




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 VI




EXISTING INVESTMENTS



The schedule of Existing Investments separately furnished to the Administrative Agent is
incorporated herein by reference.






 









 








SCHEDULE VII




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 VIII




INSURANCE



The schedule of Insurance separately furnished to the Administrative Agent is incorporated herein
by reference.





 











 





SCHEDULE IX




EXISTING LIENS




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	Calazo Corporation
	 	AZ Secretary of State	 	DBNY	 	4/3/03	 	200312557823	 	All assets
	 
	 	 	 	 	 	Continuation	 	 	 	 
	 
	 	 	 	 	 	12/21/07	 	 	 	 
	 
	 	 	 	DBNY	 	04/20/06	 	200614172486	 	All assets
	 
	 	 	 	US Bank National	 	03/19/09	 	200915718575	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	AG 1970, Inc.
	 	CA Secretary of State	 	DBNY	 	4/3/03	 	0309760064	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411238	 	 
	 
	 	 	 	DBNY	 	09/25/06	 	067086107338	 	All assets
	 
	 	 	 	US Bank National	 	03/18/09	 	097190939744	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	AG 1971, Inc.
	 	CA Secretary of State	 	DBNY	 	4/3/03	 	0309760004	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411244	 	 
	 
	 	 	 	DBNY	 	04/20/06	 	067067202898	 	All assets
	 
	 	 	 	US Bank National	 	03/18/09	 	097190939865	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	AG 1972, Inc.
	 	CA Secretary of State	 	DBNY	 	4/3/03	 	0309760001	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411245	 	 
	 
	 	 	 	DBNY	 	04/20/06	 	067067203041	 	All assets
	 
	 	 	 	US Bank National	 	03/18/09	 	097190939986	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Alyssum Corporation
	 	CA Secretary of State	 	DBNY	 	4/3/03	 	0309760002	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411248	 	 
	 
	 	 	 	DBNY	 	04/20/06	 	067067203162	 	All assets
	 
	 	 	 	US Bank National	 	03/18/2009	 	097190940039	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	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	 	03/18/09	 	097190940150	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Bud Antle, Inc.
	 	CA Secretary of State	 	DBNY	 	4/3/03	 	0309460685	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411276	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067203425	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190940271	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	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	 	3/20/09	 	20090320	 	Third Lien Deed
	 
	 	 	 	Association 	 	 	 	-00043416-0 	 	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	 	0309760044	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411277	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067203546	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190940392	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	California Polaris, Inc.
	 	CA Secretary of State	 	DBNY	 	4/3/03	 	0309460658	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411279	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067203667	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190940413	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	CB North, LLC
	 	CA Secretary of State	 	DBNY	 	12/29/04	 	047010326730	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	07/15/09	 	0972025049	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067203788	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190940534	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	CB South, LLC
	 	CA Secretary of State	 	DBNY	 	12/29/04	 	047010327004	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	07/15/09	 	0972025050	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067203809	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190943709	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dole ABPIK, Inc.
	 	CA Secretary of State	 	DBNY	 	4/3/03	 	0309760082	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411280	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067204173	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190943820	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dole Arizona Dried Fruit and Nut Company
	 	CA Secretary of State	 	DBNY	 	4/3/03	 	0309760075	 	All assets
		 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411285	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067204799	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190943941	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	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	 	0309760101	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/2007	 	0771411288	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067205821	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190944073	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	Dole Citrus
	 	CA Secretary of State	 	DBNY	 	4/3/03	 	0309760092	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411312	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067207106	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190944194	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dole DF&N, Inc.
	 	CA Secretary of State	 	DBNY	 	4/3/03	 	0309460661	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411319	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067210150	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190944215	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dole Dried Fruit and Nut Company,
	 	CA Secretary of State	 	DBNY	 	4/03/03	 	0309460663	 	All assets
	a California General Partnership
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411323	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067211787	 	All assets
	 
	 	 	 	DBNY	 	02/09/09	 	097187275127	 	All assets
	 
	 	 	 	DBNY	 	03/18/09	 	097190939623	 	All assets
	 
	 	 	 	US Bank National	 	03/18/09	 	097190944336	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	US Bank National	 	03/18/09	 	097190944457	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dole Farming, Inc.
	 	CA Secretary of State	 	DBNY	 	4/3/03	 	0309760570	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411325	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067212677	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190944578	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dole Food Company, Inc.
	 	CA Secretary of State	 	Dolphin Capital	 	12/2/05	 	057050671899	 	Furnished Modular Complex
	 
	 	 	 	Corporation	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	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	 	7/18/03	 	0320460568	 	1 jumbo trash 
	 
	 	 	 	& Trust Leasing	 	Assignment	 	Assignment	 	compactor
	 
	 	 	 	 	 	7/31/07	 	0771236345	 	 
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	3/25/08	 	0871517393	 	 
	 
	 	 	 	Wells Fargo	 	8/15/03	 	0323160449	 	Precautionary filing
	 
	 	 	 	Equipment Finance,	 	Continuation	 	Continuation	 	 relating to lease
	 
	 	 	 	Inc.	 	6/26/08	 	0871629841	 	 forklift truck 
	 
	 	 	 	Farm Credit Leasing	 	2/18/04	 	0405560915	 	2 field vacuum tube systems and
	 
	 	 	 	Services	 	Continuation	 	Continuation	 	related equipment subject to
	 
	 	 	 	Corporation	 	12/23/08	 	0871824578	 	lease agreement.
	 
	 	 	 	De Lage Landen	 	5/14/04	 	0414360036	 	Leased equipment
	 
	 	 	 	Financial Services	 	Continuation	 	Continuation	 	 
	 
	 	 	 	Inc.	 	4/8/09	 	0971929261	 	 
	 
	 	 	 	DBNY	 	4/03/03	 	0309760205	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411327	 	 
	 
	 	 	 	Farm Credit Leasing	 	2/11/05	 	057015716911	 	1 field vacuum tube system and
	 
	 	 	 	Services	 	Continuation	 	Continuation	 	related equipment subject to
	 
	 	 	 	Corporation	 	11/20/09	 	0972149388	 	lease agreement.
	 
	 	 	 	Farm Credit Leasing	 	3/14/05	 	057019139904	 	2 field vacuum tube systems and
	 
	 	 	 	Services	 	Continuation	 	Continuation	 	related equipment subject to
	 
	 	 	 	Corporation	 	12/21/09	 	0972174984	 	lease agreement.
	 
	 	 	 	IOS Capital	 	04/11/05	 	057022758086	 	Leased equipment
	 
	 	 	 	De Lage Landen	 	4/27/05	 	057024680113	 	Leased equipment
	 
	 	 	 	Financial Services	 	 	 	 	 	 
	 
	 	 	 	Inc.	 	 	 	 	 	 
	 
	 	 	 	De Lage Landen	 	4/27/05	 	057024680234	 	Leased equipment
	 
	 	 	 	Financial Services	 	 	 	 	 	 
	 
	 	 	 	Inc.	 	 	 	 	 	 
	 
	 	 	 	Printpack, Inc.	 	9/2/05	 	057040107731	 	Consigned inventory
	 
	 	 	 	IOS Capital	 	12/20/05	 	057052578897	 	Leased equipment
	 
	 	 	 	Toyota Motor Credit	 	1/07/06	 	067054500330	 	Toyota forklifts
	 
	 	 	 	Corporation/Prolift	 	 	 	 	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	 
	 	 	 	Industrial	 	 	 	 	 	 
	 
	 	 	 	Equipment Co. LLC	 	 	 	 	 	 
	 
	 	 	 	NMGH Financial	 	3/27/06	 	067063951633	 	Leased equipment
	 
	 	 	 	Services	 	 	 	 	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067216853	 	All assets
	 
	 	 	 	IOS Capital	 	5/1/06	 	067068393810	 	Leased equipment
	 
	 	 	 	IOS Capital	 	1/11/07	 	077098327508	 	Leased equipment
	 
	 	 	 	Citicapital	 	2/28/07	 	077104349752	 	Ford truck and utility body with
	 
	 	 	 	Commercial Corp	 	 	 	 	 	ladder rack
	 
	 	 	 	Toyota Material	 	5/23/07	 	077114842741	 	Forklifts, batteries, and side
	 
	 	 	 	Handling Midwest	 	 	 	 	 	shifters
	 
	 	 	 	IBM Credit	 	6/25/07	 	077118698906	 	IBM equipment
	 
	 	 	 	US Bancorp	 	7/03/07	 	077120083806	 	Janitorial cleaning
	 
	 	 	 	Salinas Valley Ford	 	12/21/07	 	077141062391	 	7 Ford trucks
	 
	 	 	 	Sales, Toyota Motor	 	Amendment	 	Amendment	 	 
	 
	 	 	 	Credit Corp	 	12/21/07	 	0771410662	 	 
	 
	 	 	 	Salinas Valley Ford	 	2/6/08	 	087146299501	 	2 Ford trucks
	 
	 	 	 	Sales	 	 	 	 	 	 
	 
	 	 	 	Salinas Valley Ford	 	2/11/08	 	087146809104	 	2 Ford trucks
	 
	 	 	 	Sales	 	 	 	 	 	 
	 
	 	 	 	Salinas Valley Ford	 	2/14/08	 	087147284819	 	Ford truck
	 
	 	 	 	Sales	 	 	 	 	 	 
	 
	 	 	 	RDO Equipment Co.	 	4/3/08	 	087152779804	 	Ingersol Rand Reach truck
	 
	 	 	 	GE Capital Corp	 	4/28/08	 	087155589987	 	Camera/laser sorter system
	 
	 	 	 	 	 	Amendment	 	Amendment	 	 
	 
	 	 	 	 	 	8/8/08	 	0871681682	 	 
	 
	 	 	 	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	 	8/28/08	 	087170284784	 	Waste recycling system
	 
	 	 	 	Bancorp	 	Assignment	 	Assignment	 	 
	 
	 	 	 	 	 	10/14/08	 	0871751658	 	 
	 
	 	 	 	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	 	11/09/08	 	087177985820	 	Leased equipment
	 
	 	 	 	Services	 	 	 	 	 	 
	 
	 	 	 	RDO Equipment Co.	 	3/2/09	 	097189208276	 	Ingersol Rand Reach fork
	 
	 	 	 	US Bank National	 	3/18/09	 	097190944699	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	Wells Fargo Bank,	 	8/20/09	 	097206163195	 	Nissan forklifts
	 
	 	 	 	N.A.	 	 	 	 	 	 
	 
	 	 	 	Smurfit-Stone	 	8/31/09	 	097206992125	 	3 Meta 150 and Conveyors
	 
	 	 	 	Container	 	 	 	 	 	 
	 
	 	 	 	Enterprises	 	 	 	 	 	 
	 
	 	 	 	Toyota Material	 	9/9/09	 	097207701639	 	22 Toyota forklifts
	 
	 	 	 	Handling Midwest,	 	Amendment	 	Amendment	 	 
	 
	 	 	 	Toyota Motor Credit	 	9/10/09	 	0972078284	 	 
	 
	 	 	 	IKON Financial	 	10/31/09	 	097212900535	 	Leased equipment
	 
	 	 	 	Services	 	 	 	 	 	 
	 
	 	 	 	GE Capital Corp	 	12/7/09	 	097216383786	 	Food processing equipment
	 
	 	 	 	 	 	Amendment	 	Amendment	 	 
	 
	 	 	 	 	 	2/5/10	 	1072223937	 	 
	 
	 	 	 	GE Capital Corp	 	1/4/10	 	107218902363	 	Food processing equipment
	 
	 	 	 	 	 	 	 	 	 	 
	Dole Orland, Inc.
	 	CA Secretary of State	 	DBNY	 	4/03/03	 	0309760210	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411331	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067216974	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190944710	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	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,	 	9/2/08	 	087170507661	 	All Leased and Owned Equipment
	 
	 	 	 	Trinity Division,	 	Assignment	 	Assignment	 
	 
	 	 	 	First American	 	2/24/09	 	0971885915	 
	 
	 	 	 	Comm. Bancorp	 	 	 	 	 	 
	 
	 	 	 	Bank of the West,	 	9/11/08	 	087171594375	 	All Leased and Owned Equipment
	 
	 	 	 	Trinity Division,	 	Assignment	 	Assignment	 
	 
	 	 	 	First American Comm.	 	2/24/09	 	0971885953	 
	 
	 	 	 	Bancorp	 	 	 	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	 
	 	 	 	DBNY	 	2/9/09	 	097187277381	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190944831	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	Wells Fargo Bank NA	 	10/13/09	 	097211052805	 	Forklift
	 
	 	 	 	 	 	 	 	 	 	 
	E. T. Wall Company
	 	CA Secretary of State	 	DBNY	 	4/03/03	 	0309760237	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411355	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067217127	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190944952	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Earlibest Orange Association, Inc.
	 	CA Secretary of State	 	DBNY	 	4/03/03	 	0309760189	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411336	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067217248	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190945084	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Fallbrook Citrus Company, Inc.
	 	CA Secretary of State	 	DBNY	 	4/03/03	 	0309760263	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411339	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067217369	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190945347	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Lindero Headquarters Company, Inc.
	 	CA Secretary of State	 	DBNY	 	4/03/03	 	0309760256	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411343	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067217480	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190945468	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Lindero Property, Inc.
	 	CA Secretary of State	 	DBNY	 	4/03/03	 	0309760553	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411344	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067217622	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190945589	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Milagro Ranch, LLC
	 	CA Secretary of State	 	DBNY	 	12/29/04	 	047010328257	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	 
	 	 	 	 	 	07/15/09	 	0972025052	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067217743	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190945600	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Oceanview Produce Company
	 	CA Secretary of State	 	DBNY	 	4/03/03	 	0309760619	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411348	 	 
	 
	 	 	 	AGCO Finance LLC	 	6/13/03	 	0316960442	 	Certain leased equipment
	 
	 	 	 	 	 	Amendment	 	Amendment	 	 
	 
	 	 	 	 	 	12/15/03	 	03353C0099	 	 
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	4/14/08	 	0871542919	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067217864	 	All assets
	 
	 	 	 	AGCO Finance LLC	 	7/10/06	 	067077630884	 	Certain leased equipment
	 
	 	 	 	US Bank National	 	3/18/09	 	097190945721	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	Toyota Motor Credit	 	11/23/09	 	097215171821	 	3 Forklifts
	 
	 	 	 	Corp	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Prairie Vista, Inc.
	 	CA Secretary of State	 	DBNY	 	4/03/03	 	0309460686	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411349	 	 
	 
	 	 	 	Fannie Mae	 	8/25/05	 	057039425136	 	Property, rents and profits,
	 
	 	 	 	(assigned to	 	Assignment	 	Assignment	 	fixtures, and ancillary rights
	 
	 	 	 	Citibank West, FSB)	 	9/8/08	 	0871710937	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067217985	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190945842	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Rancho Manana, LLC
	 	CA Secretary of State	 	DBNY	 	12/29/04	 	04701329147	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	7/15/09	 	0972025053	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067218017	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190945963	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Royal Packing Co.
	 	CA Secretary of State	 	DBNY	 	4/03/03	 	0309760591	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411351	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	 
	 	 	 	CNH Capital America	 	10/26/05	 	057046390802	 	Tractor
	 
	 	 	 	LLC	 	 	 	 	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067218259	 	All assets
	 
	 	 	 	CNH Capital America	 	8/31/06	 	067083463380	 	Tractor
	 
	 	 	 	LLC	 	 	 	 	 	 
	 
	 	 	 	CNH Capital America	 	1/20/07	 	077099417135	 	4 Tractors
	 
	 	 	 	LLC	 	 	 	 	 	 
	 
	 	 	 	CNH Capital America	 	1/23/07	 	077099587062	 	2 Tractors
	 
	 	 	 	LLC	 	 	 	 	 	 
	 
	 	 	 	CNH Capital America	 	10/10/08	 	087174879758	 	Tractor and Trimble RTK Autopilot
	 
	 	 	 	LLC	 	 	 	 	 	Precautionary Filing
	 
	 	 	 	CNH Capital America	 	10/10/08	 	087174879879	 	Tractor Precautionary Filing
	 
	 	 	 	LLC	 	 	 	 	 	 
	 
	 	 	 	CNH Capital America	 	12/31/08	 	087183085000	 	2 Tractors and 2 Autopilots
	 
	 	 	 	LLC	 	 	 	 	 	Precautionary Filing
	 
	 	 	 	US Bank National	 	3/18/09	 	097190946095	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Veltman Terminal Co.
	 	CA Secretary of State	 	DBNY	 	4/03/03	 	0309760609	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	0771411354	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	067067218370	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	097190946116	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dole Food Company, Inc.
	 	DE Secretary of State	 	DBNY	 	4/03/03	 	30878853	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	2007 4890538	 	 
	 
	 	 	 	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	 	10/05/04	 	42791855	 	Leased computer equipment
	 
	 	 	 	Technology,	 	Amendment	 	Amendment	 	 
	 
	 	 	 	Inc./McArthur	 	12/01/04	 	42791855	 	 
	 
	 	 	 	Associates, Inc.	 	 	 	 	 	 
	 
	 	 	 	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	 	10/3/07	 	2007 3720447	 	Leased equipment
	 
	 	 	 	Services	 	 	 	 	 	 
	 
	 	 	 	IKON Financial	 	10/3/07	 	2007 3720454	 	Leased equipment
	 
	 	 	 	Services	 	 	 	 	 	 
	 
	 	 	 	NFS Leasing	 	10/29/07	 	2007 4102603	 	Leased computer equipment and
	 
	 	 	 	 	 	Assignment	 	Assignment	 	peripherals
	 
	 	 	 	 	 	1/30/09	 	2009 0413077	 	 
	 
	 	 	 	Verizon Credit Inc.	 	11/2/07	 	2007 4182001	 	Leased Nortel equipment
	 
	 	 	 	Solarcom Capital,	 	2/8/08	 	2008 0485530	 	Leased computer equipment
	 
	 	 	 	LLC, et al and	 	Amendment	 	Amendment	 	 
	 
	 	 	 	Popular Equipment	 	4/23/08	 	2008 1411931	 	 
	 
	 	 	 	Finance	 	 	 	 	 	 
	 
	 	 	 	Solarcom Capital,	 	2/14/08	 	2008 0556900	 	Leased computer equipment
	 
	 	 	 	LLC, et al and	 	Amendment	 	Amendment	 	 
	 
	 	 	 	Popular Equipment	 	7/2/08	 	2008 2266441	 	 
	 
	 	 	 	Finance	 	 	 	 	 	 
	 
	 	 	 	Solarcom Capital	 	2/14/08	 	2008 0557221	 	Leased equipment
	 
	 	 	 	and Key Equipment	 	 	 	 	 	 
	 
	 	 	 	Finance	 	 	 	 	 	 
	 
	 	 	 	Presidio Technology	 	7/22/08	 	2008 2506465	 	Leased equipment
	 
	 	 	 	Capital and Key	 	 	 	 	 	 
	 
	 	 	 	Equipment Finance	 	 	 	 	 	 
	 
	 	 	 	US Bank National	 	3/18/09	 	2009 0874013	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	 
	 	 	 	NFS Leasing	 	5/5/09	 	2009 1411351	 	Leased computer equipment
	 
	 	 	 	Wells Fargo	 	5/11/09	 	2009 1555876	 	Leased networking equipment and
	 
	 	 	 	Financing Leasing	 	 	 	 	 	software
	 
	 	 	 	NFS Leasing and	 	6/2/09	 	2009 1734034	 	Leased computer equipment and
	 
	 	 	 	Danversbank, et al	 	 	 	 	 	peripherals
	 
	 	 	 	Presidio Technology	 	9/24/09	 	2009 3058069	 	Leased equipment
	 
	 	 	 	Capital and	 	 	 	 	 	 
	 
	 	 	 	Heartland Business	 	 	 	 	 	 
	 
	 	 	 	Credit, et al	 	 	 	 	 	 
	 
	 	 	 	Forsythe/Mcarthur	 	10/5/09	 	2009 3191936	 	Leased computer and other equipment
	 
	 	 	 	Associates	 	 	 	 	 	 
	 
	 	 	 	Presidio Technology	 	10/30/09	 	2009 3494272	 	Leased equipment
	 
	 	 	 	Capital and	 	 	 	 	 	 
	 
	 	 	 	Heartland Business	 	 	 	 	 	 
	 
	 	 	 	Credit, et al	 	 	 	 	 	 
	 
	 	 	 	IBM Credit LLC	 	12/31/09	 	2009 4191380	 	Leased IBM equipment and  software
	 
	 	 	 	Presidio Technology	 	1/14/10	 	2010 0148969	 	Leased equipment
	 
	 	 	 	Capital and	 	 	 	 	 	 
	 
	 	 	 	Heartland Business	 	 	 	 	 	 
	 
	 	 	 	Credit, et al	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Bananera Antillana (Colombia) Inc.
	 	DE Secretary of State	 	DBNY	 	4/03/03	 	30875289	 	All assets
	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	2007 4890603	 	 
	 
	 	 	 	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	 	030878747	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	2007 4890595	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	61338847	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009 0874260	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Delphinium Corporation
	 	DE Secretary of State	 	DBNY	 	3/04/03	 	30878838	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	2007 4890561	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	61338813	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009 0874229	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	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	 	3/18/09	 	2009 0874195	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	Dole Europe Company
	 	DE Secretary of State	 	DBNY	 	4/03/03	 	30878846	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	2007 4890546	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	61338839	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009 0874161	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dole Foods Flight Operations, Inc.
	 	DE Secretary of State	 	DBNY	 	4/03/03	 	30878861	 	All assets
	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	2007 4890512	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	61338789	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009 0873999	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	General Electric	 	4/01/03	 	30845423	 	Bombardier Global Express 
	 
	 	 	 	Capital Corporation	 	Continuation	 	Continuation	 	aircraft 
	 
	 	 	 	 	 	11/16/07	 	2007 4381033	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dole Northwest, Inc.
	 	DE Secretary of State	 	DBNY	 	04/3/03	 	30878879	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	2007 4890496	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	61338730	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009 0873965	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dole Sunfresh Express, Inc.
	 	DE Secretary of State	 	DBNY	 	04/3/03	 	30878903	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	2007 4890462	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	61338748	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009 0873957	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Standard Fruit and Steamship Company
	 	DE Secretary of State	 	DBNY	 	04/3/03	 	30878895	 	All assets
	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	2007 4890454	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	61338722	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009 1174504	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	Standard Fruit Company
	 	DE Secretary of State	 	DBNY	 	04/3/03	 	30878697	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	2007 4890447	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	61338698	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009 0873890	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Sun Country Produce, Inc.
	 	DE Secretary of State	 	DBNY	 	04/3/03	 	30878705	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	2007 4890421	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	61338672	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009 0873866	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	West Foods, Inc.
	 	DE Secretary of State	 	DBNY	 	04/3/03	 	30878721	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	2007 4890413	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	61338649	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009 0873817	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Cool Advantage, Inc.
	 	FL Secured Transaction	 	DBNY	 	4/03/03	 	200303648250	 	All assets
	 
	 	Registry	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	20070727008X	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	200602439653	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	200900200926	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Cool Care, Inc.
	 	FL Secured Transaction	 	DBNY	 	04/3/03	 	200303648269	 	All assets
	 
	 	Registry	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	200707270098	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	200602439645	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	200900200934	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Saw Grass Transport, Inc.
	 	FL Secured Transaction	 	DBNY	 	04/3/03	 	200303648285	 	All assets
	 
	 	Registry	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	200707270187	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	200602439661	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	200900200942	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	DNW Services Company
	 	WA Department of	 	DBNY	 	04/3/03	 	2003-098-9527-1	 	All assets
	 
	 	Licensing	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	2/27/08	 	2008-058-0723-5	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006-114-3317-8	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009-079-3383-2	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Pacific Coast Truck 
	 	WA Department of	 	DBNY	 	04/3/03	 	2003-098-9525-7	 	All assets
	Company
	 	Licensing	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	2/27/08	 	2008-058-0722-8	 	 
	 
	 	 	 	International Truck	 	02/05/02	 	2002-051-1455-1	 	Trucks and trailers
	 
	 	 	 	and Engine	 	 	 	 	 	 
	 
	 	 	 	 	 	Amendment	 	Amendment	 	 
	 
	 	 	 	Corporation and/or	 	06/12/02	 	2002-163-1973-0	 	 
	 
	 	 	 	Navistar Financial	 	Amendment	 	Amendment	 	 
	 
	 	 	 	Corporation	 	06/22/05	 	2005-173-9753-6	 	 
	 
	 	 	 	 	 	Amendment	 	Amendment	 	 
	 
	 	 	 	 	 	3/29/06	 	2006-088-6482-4	 	 
	 
	 	 	 	 	 	Amendment	 	Amendment	 	 
	 
	 	 	 	 	 	3/29/06	 	2006-088-6492-3	 	 
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	8/21/06	 	2006-235-3114-5	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006-114-3323-9	 	All assets
	 
	 	 	 	Navistar Financial	 	7/20/06	 	2006-201-9275-2	 	Motor vehicles and accessories
	 
	 	 	 	Corporation	 	 	 	 	 	 
	 
	 	 	 	Navistar Financial	 	9/22/06	 	2006-265-1002-4	 	Motor vehicles and accessories
	 
	 	 	 	Corporation	 	 	 	 	 	 
	 
	 	 	 	US Bank National	 	3/19/09	 	2009-079-3382-5	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	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	 	DBNY	 	04/3/03	 	2003-098-9526-4	 	All assets
	 
	 	Licensing	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	2/27/08	 	2008-058-0721-1	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006-114-3326-0	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009-079-3381-8	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	Diversified Imports Co.
	 	NV Secretary of State	 	DBNY	 	04/3/03	 	2003009378-6	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	2/26/08	 	2008006391-1	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006012427-2	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009006897-5	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dole Assets, Inc.
	 	NV Secretary of State	 	DBNY	 	04/3/03	 	2003009379-8	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	2/26/08	 	2008006390-9	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006012428-4	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009006898-7	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dole Fresh Fruit Company
	 	NV Secretary of State	 	DBNY	 	04/3/03	 	2003009380-1	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	2/26/08	 	2008006389-6	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006012429-6	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009006899-9	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dole Holdings, Inc.
	 	NV Secretary of State	 	DBNY	 	04/3/03	 	2003009381-3	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	2/26/08	 	2008006386-0	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006012430-9	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009006900-4	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dole Logistics Services, Inc.
	 	NV Secretary of State	 	DBNY	 	04/3/03	 	2003009382-5	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	2/26/08	 	2008006384-6	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006012432-3	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009006901-6	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dole Ocean Cargo Express, Inc.
	 	NV Secretary of State	 	DBNY	 	04/3/03	 	2003009384-9	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	2008006383-4	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006012434-7	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009006902-8	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	Dole Ocean Liner Express, Inc.
	 	NV Secretary of State	 	DBNY	 	04/3/03	 	2003009383-7	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	2/26/08	 	2008006382-2	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006012435-9	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009006903-0	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Renaissance Capital Corporation.
	 	NV Secretary of State	 	DBNY	 	04/3/03	 	2003009385-1	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	2/26/08	 	2008006381-0	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006012439-7	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009006904-2	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Sun Giant, Inc.
	 	NV Secretary of State	 	DBNY	 	04/3/03	 	2003009386-3	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	2/26/08	 	2008006388-4	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006012441-2	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009006905-4	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Blue Anthurium, Inc.
	 	HI Bureau of Conveyances	 	DBNY	 	04/04/03	 	2003-062776	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	2007-219149	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006-073264	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009-041179	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Cerulean, Inc.
	 	HI Bureau of Conveyances	 	DBNY	 	04/04/03	 	2003-062777	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	2007-219150	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006-073265	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009-041180	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dole Diversified, Inc.
	 	HI Bureau of Conveyances	 	DBNY	 	04/04/03	 	2003-062765	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	2007-219152	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006-073273	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009-041181	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	FILING	 	 	 	 
	ENTITY	 	JURISDICTION	 	SECURED PARTY	 	DATE	 	FILING NUMBER	 	COLLATERAL
	Dole Land Company, Inc.
	 	HI Bureau of Conveyances	 	DBNY	 	04/03/03	 	2003-062766	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	2007-219151	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006-073268	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009-041182	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dole Packaged Foods Corporation
	 	HI Bureau of Conveyances	 	DBNY	 	04/03/03	 	2003-062767	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	2007-219153	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006-073269	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009-041183	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	La Petitie d’Agen, Inc.
	 	HI Bureau of Conveyances	 	DBNY	 	04/03/03	 	2003-062775	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	12/20/07	 	2007-219155	 	 
	 
	 	 	 	DBNY	 	4/19/06	 	2006-073272	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009-041184	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	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	 	3/23/09	 	2009-043101	 	Mortgage, Security Agreement,
	 
	 	 	 	Association	 	 	 	 	 	Assignment of Leases, Rents and
	 
	 	 	 	 	 	 	 	 	 	Profits, Financing Statement and
	 
	 	 	 	 	 	 	 	 	 	Fixture Filing
	 
	 	 	 	 	 	 	 	 	 	 
	M K Development, Inc.
	 	HI Bureau of Conveyances	 	DBNY	 	04/03/03	 	2003-062768	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	2/26/08	 	2008-028363	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006-073266	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009-041185	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Malaga Company, Inc.
	 	HI Bureau of Conveyances	 	DBNY	 	04/03/03	 	2003-062769	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	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	 	3/18/09	 	2009-041186	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Muscat, Inc.
	 	HI Bureau of Conveyances	 	DBNY	 	04/03/03	 	2003-062770	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	2/26/08	 	2008-028364	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006-073270	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009-041187	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Oahu Transport Company, Limited
	 	HI Bureau of Conveyances	 	DBNY	 	04/03/03	 	2003-062771	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	2/26/08	 	2006-028365	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006-073274	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009-041188	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Wahiawa Water Company, Inc.
	 	HI Bureau of Conveyances	 	DBNY	 	4/04/03	 	2003-062772	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 
	 
	 	 	 	 	 	2/26/08	 	2006-028367	 	 
	 
	 	 	 	DBNY	 	4/20/06	 	2006-073271	 	All assets
	 
	 	 	 	US Bank National	 	3/18/09	 	2009-041189	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	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	 	3/23/09	 	2009-043105	 	Mortgage, Security Agreement,
	 
	 	 	 	Association	 	 	 	 	 	Assignment of Leases, Rents and
	 
	 	 	 	 	 	 	 	 	 	Profits, Financing Statement and
	 
	 	 	 	 	 	 	 	 	 	Fixture Filing
	 
	 	 	 	 	 	 	 	 	 	 
	Zante Currant, Inc.
	 	HI Bureau of Conveyances	 	DBNY	 	4/03/03	 	2003-062774	 	All assets
	 
	 	 	 	 	 	Continuation	 	Continuation	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	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	 	3/18/09	 	2009-041190	 	All assets
	 
	 	 	 	Association	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	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.





 












 





SCHEDULE X




CAPITALIZATION



None.








 









 








SCHEDULE XII




CERTAIN FOREIGN SECURITY DOCUMENTS,

FOREIGN SUBSIDIARIES PARTY TO

FOREIGN SUBSIDIARY DOCUMENTS, ETC.



Parts A and B —Foreign Credit Party Pledge Agreements and Local Law Pledge
Agreements





	 	•	 	Accounts Pledge Agreement (with each German Subsidiary) dated 28 April 2003
	 
	 	•	 	Intellectual Property Rights Pledge Agreement (with each German Subsidiary) dated 28
April 2003
	 
	 	•	 	Account Pledge Agreement by all Italian subsidiaries.
	 
	 	•	 	Assignments of Receivables Agreement by all Italian subsidiaries.
	 
	 	•	 	Bond Pledge Agreement of the Canadian Guarantor
	 
	 	•	 	Commercial Pledge over receivables, executed in a public deed by the Chilean Guarantors
	 
	 	•	 	Pledge Without Conveyance over inventory, executed in a public deed by the Chilean
Guarantors
	 
	 	•	 	Industrial Pledge over property, executed in a public deed by the Chilean Guarantors
	 
	 	•	 	Pledge Agreement executed and delivered by the Columbia Guarantors
	 
	 	•	 	Pledge Agreement (for motor vehicles) executed and delivered by Costa Rican Guarantors
	 
	 	•	 	Pledge Agreement (for inventory, etc.) executed and delivered by Costa Rican Guarantors
	 
	 	•	 	Ordinary Pledge for chattels and documented receivables, executed and delivered by
Ecuadorian Guarantors
	 
	 	•	 	Agricultural and Industrial Pledge for agricultural and industrial chattels, executed
and delivered by Ecuadorian Guarantors
	 
	 	•	 	Pledge for intellectual property, executed and delivered by Ecuadorian Guarantors
	 
	 	•	 	Universal Pledge Agreement executed by Honduran Guarantors




 









 












	 	•	 	Share Pledge Agreement executed by certain Philippine Guarantors
	 
	 	•	 	Pledge Agreement dated as of July 11, 2006, between SABA TRADING HOLDING AB, as Pledgor
and DEUTSCHE BANK AG NEW YORK BRANCH, as Security Agent in respect of the shares in Saba
Trading AB.
	 
	 	•	 	Pledge Agreement dated as of July 11, 2006, between SABA TRADING AB, as Pledgor and
DEUTSCHE BANK AG NEW YORK BRANCH, as Security Agent in respect of the shares in AB
Banan-Kompaniet.
	 
	 	•	 	Pledge Agreement dated as of July 11, 2006, between SABA TRADING AB, as Pledgor and
DEUTSCHE BANK AG NEW YORK BRANCH, as Security Agent in respect of the shares in Saba
Blommor AB.
	 
	 	•	 	Pledge Agreement dated as of July 11, 2006, between SABA TRADING AB, as Pledgor and
DEUTSCHE BANK AG NEW YORK BRANCH, as Security Agent in respect of the shares in Saba Fresh
Cuts AB.
	 
	 	•	 	Pledge Agreement dated as of July 11, 2006, between SABA TRADING AB, as Pledgor and
DEUTSCHE BANK AG NEW YORK BRANCH, as Security Agent in respect of the shares in Saba Frukt
& Grönt AB.
	 
	 	•	 	Pledge Agreement dated as of July 11, 2006, between SABA TRADING AB, as Pledgor and
DEUTSCHE BANK AG NEW YORK BRANCH, as Security Agent in respect of the shares in Dole Nordic
AB.
	 
	 	•	 	Pledge Agreement dated as of July 11, 2006, between SABA TRADING AB and SABA FRUKT &
GRÖNT AB, as Pledgors and DEUTSCHE BANK AG NEW YORK BRANCH, as Security Agent in respect of
the participations in S Ättehögen Östra 3 Kommanditbolag.




Part C — Replacement Foreign Security Agreements and all other Foreign Security Agreements





	 	•	 	Security Agreement between Kabushiki Kaisha Dole and the Agent dated April 25, 2003.
	 
	 	•	 	Bermuda Charge Agreement among Solvest, Ltd., certain subsidiaries of Solvest, Ltd. and
the Agent.
	 
	 	•	 	Amended and Restated Debenture between Dole Hong Kong Limited and the Agent dated July
14, 2003.
	 
	 	•	 	Security Agreement dated July 2, 2003 between Dole Fresh Fruit Med Gida Ürünleri Ticaret
VE A.S. and the Agent
	 
	 	•	 	Assignment Agreement (with each German Subsidiary) dated 28 April 2003




 









 












	 	•	 	Security Transfer Agreement (with each German Subsidiary) dated 28 April 2003
	 
	 	•	 	Security Purpose Agreement (relating to land charge granted by Paul Kempowski GmbH & Co.
KG) dated 28 April 2003
	 
	 	•	 	Foreign Security Agreements governed by the laws of Canada executed and delivered by the
Canadian Guarantor
	 
	 	•	 	Foreign Security Agreements governed by the laws of Chile executed and delivered by each
Chilean Guarantor
	 
	 	•	 	Foreign Security Agreements governed by the laws of Colombia executed and delivered by
each Columbian Guarantor
	 
	 	•	 	Foreign Security Agreements governed by the laws of Costa Rica executed and delivered by
each Costa Rican Guarantor
	 
	 	•	 	Foreign Security Agreements governed by the laws of Ecuador executed and delivered by
each Ecuadorian Guarantor
	 
	 	•	 	Foreign Security Agreements governed by the laws of Honduras executed and delivered by
each Honduran Guarantor
	 
	 	•	 	Foreign Security Agreements governed by the laws of Italy executed and delivered by each
Italian Guarantor
	 
	 	•	 	Foreign Security Agreements governed by the laws of Philippines executed and delivered
by each Philippine Guarantor




Part D — Non-Wholly Owned Subsidiaries





DOLE THOMSEN S.A.

COMERCIAL INDUSTRIAL ECUATORIANA, S.A.

ENERO S.A.

BIENES Y SERVICIOS S DE R L DE CV

BIENES Y VALORES, S.A.

MANUFACTURAS DE CARTON, S.A.

DOLE TERM S.R.L.

LA FIORITA

DIAMOND FARMS, INC.

PACIFIC INTERNATIONAL TERMINAL SERVICES, INC.

AB BANAN-KOMPANIET

S ATTEHOGEN OSTRA 3 KB

SABA BLOMMOR AB

SABA FRESH CUTS SA FKA: FäRSKVARUCENTRALEN I MALMö AB

SABA FRüKT & GRöNT AB



 









 






SABA TRADING AB

DOLE NORDIC AB

DOLE THAILAND, LTD

KHAO ANG KAEW CO,. LTD

APACHE GROVE LAND, 1972 LIMITED

ANY EXCLUDED JV


Part G — Foreign Security Documents Acknowledgements and/or Amendments and Foreign
Subsidiaries party to Foreign Security Documents Acknowledgements and/or Amendments





	 	•	 	Amendments to Deeds of Covenant and Mortgages between Ventura Trading, Ltd. and the
Agent with respect to the following vessels:






	 	•	 	Dole Africa
	 
	 	•	 	Dole America
	 
	 	•	 	Dole Asia
	 
	 	•	 	Dole California
	 
	 	•	 	Dole Costa Rica
	 
	 	•	 	Dole Ecuador
	 
	 	•	 	Dole Europa
	 
	 	•	 	Dole Honduras
	 
	 	•	 	Tropical Mist
	 
	 	•	 	Tropical Morn
	 
	 	•	 	Tropical Sky
	 
	 	•	 	Tropical Star






	 	•	 	Letter of Confirmation from Dole Foods of Canada Ltd.
	 
	 	•	 	Amendment Agreement by all German subsidiaries, as follows:






	 	•	 	Dole Fresh Fruit Europe OHG
	 
	 	•	 	Paul Kempowski GMBH & Co. KG
	 
	 	•	 	Dole Deutschland Beteiligungsgesellschaft MBH
	 
	 	•	 	Dole Deutschland GMBH




 









 












	 	•	 	Acknowledgment Letter by Dole Japan
	 
	 	•	 	Supplement to Mortgage Agreements executed by Dole Philippines, Inc. for the 10 mortgage
agreements for each of the following properties:






	 	•	 	North Cotabato
	 
	 	•	 	South Cotabato
	 
	 	•	 	General Santos City
	 
	 	•	 	Sarangani Province
	 
	 	•	 	Davao City
	 
	 	•	 	Davao del Norte
	 
	 	•	 	Bukidnon
	 
	 	•	 	Compostela Valey
	 
	 	•	 	Agusan del Norte
	 
	 	•	 	Paranaque






	 	•	 	Amendments to security documents for all Chilean Subsidiary Guarantors
	 
	 	•	 	Supplemental Deeds of Charge entered into by Dole Hong Kong Limited
	 
	 	•	 	Amendments to Swedish Pledge Agreements executed by SABA Trading Holding AB, SABA
Trading AB and SABA Frukt & Grönt AB
	 
	 	•	 	Amendments to Security Agreements executed by the Chilean Subsidiary Guarantors
	 
	 	•	 	Amendments to Mortgages by certain Ecuadoran Subsidiary Guarantors




 









 











SCHEDULE XIII




NON-GUARANTOR SUBSIDIARIES;

EXCLUDED FOREIGN SUBSIDIARIES



Part A — Non-Guarantor Subsidiaries:




Estibadores Golfitenos, S.A.

Brunetti S.A.

Propolisa, S.A.

Agricola Santa Ines, S.A.

Dole Foreign Holdings, Ltd.

County Line Mutual Water Company

Pematin S.A.



All Subsidiaries of the U.S. Borrower organized under the laws of any jurisdiction other than
Bermuda, Canada, Chile, Colombia, Costa Rica, Ecuador, Germany, Honduras, Hong Kong, Italy, Japan,
Liberia, Luxembourg, the Philippines, Turkey and Sweden.



Part B — Excluded Foreign Subsidiaries:




Estibadores Golfitenos, S.A.

Brunetti S.A.

Propolisa, S.A.

Pematin S.A.




 









 





SCHEDULE XIV




TRANSACTIONS WITH AFFILIATES



The schedule of Transactions with Affiliates separately furnished to the Administrative Agent is
incorporated herein by reference.






 









 








SCHEDULE XV




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 XVI




TAX MATTERS



The schedule of Tax Matters separately furnished to the Administrative Agent is incorporated herein
by reference.







 









 








SCHEDULE XVII




INITIAL QUALIFIED JURISDICTIONS




Bermuda

Canada

Chile

Ecuador

Hong Kong

Japan

Liberia

Luxembourg

Sweden





 











 





SCHEDULE XVIII




POST-CLOSING MATTERS




Part A — Real Property Actions




	 	 	 
	Date	 	Action
	Not later than 60
days after the
Restatement
Effective Date, or
such later date as
is acceptable to
the Administrative
Agent.

	 	Each Credit Agreement Party will, and will cause its Subsidiaries which are
Credit Agreement Parties or Subsidiary Guarantors, to grant to the Collateral
Agent security interests and mortgages (each, a “Required Mortgage”): (i) in
each owned property shown on Schedule III which is not Principal Property and
which is not encumbered as of the Restatement Effective Date; and (ii) in
each leased property shown on Schedule III which is not a Principal Property,
which is not encumbered as of the Restatement Effective Date and for which
landlord consent to a Required Mortgage either has been received or is not
required pursuant to the terms of the respective lease. In addition, each
Credit Agreement Party will, and will cause its Subsidiaries which are Credit
Agreement Parties or Subsidiary Guarantors, to deliver to the Collateral
Agent with respect to each Required Mortgage:
	 
	 	 
		 	
(i) a Mortgage Policy relating to each Mortgage of the Mortgaged Property
referred to above, issued by a title insurer reasonably satisfactory to the
Collateral Agent, in an insured amount satisfactory to the Collateral Agent
and insuring the Collateral Agent that the Mortgage on each such Mortgaged
Property is a valid and enforceable first priority mortgage lien on such
Mortgaged Property, free and clear of all defects and encumbrances except
Permitted Encumbrances, with each such Mortgage Policy (1) to be in form and
substance reasonably satisfactory to the Collateral Agent, (2) to include, to
the extent available in the applicable jurisdiction, supplemental
endorsements (including, without limitation, endorsements relating to future
advances under this Agreement and the Loans, usury, first loss, last dollar,
tax parcel, subdivision, zoning, contiguity, variable rate, doing business,
public road access, survey, environmental lien, mortgage tax and so-called
comprehensive coverage over covenants and restrictions and for any other
matters that the Collateral Agent in its discretion may reasonably request),
(3) to not include the “standard” title exceptions, a survey exception or an
exception for mechanics’ liens, and (4) to provide for affirmative insurance
and such reinsurance as the Collateral Agent in its discretion may reasonably
request;

	 
	 	 
	 

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







 









 






	 	 	 
	Date	 	Action
	 

	 	(iii) to the extent reasonably requested by the Collateral Agent, a survey

	 
	 	 
	 

	 	of each Mortgaged Property (and all improvements thereon) (a) prepared by a
surveyor or engineer licensed to perform surveys in the state, commonwealth
or applicable jurisdiction where such Mortgaged Property is located, (b)
dated not earlier than six months prior to the date of delivery thereof, (c)
certified by the surveyor (in a manner reasonably acceptable to the
Collateral Agent) to the Collateral Agent in its capacity as such and the
title insurer; (d) complying in all respects with the minimum detail
requirements of the American Land Title Association as such requirements are
in effect on the date of preparation of such survey, and (e) in all events,
sufficient for the title insurer to remove all standard survey exceptions
from the Mortgage Policy relating to such Mortgaged Property and to issue the
endorsements required pursuant to the provisions of preceding clause (ii);

	 
	 	 
	 

	 	(iv) flood certificates covering each Mortgaged Property in form and
substance acceptable to the Collateral Agent in its capacity as such and
certifying whether or not each such Mortgaged Property is located in a flood
hazard zone by reference to the applicable FEMA map;

	 
	 	 
	 

	 	(v) with respect to leased properties, fully executed landlord waivers and/or
bailee agreements in form and substance reasonably satisfactory to the
Collateral Agent; and

	 
	 	 
	 

	 	(vi) if requested by the Collateral Agent in its reasonable discretion, an
opinion from local counsel in the jurisdiction where the land to be
encumbered by the Required Mortgage is located, covering such matters as the
Collateral Agent may reasonably request, including, but not limited to the
enforceability of the Required Mortgage.







 









 






Part B — Actions by Various Foreign Subsidiaries




	 	 	 	 	 
	JURISDICTION	 	DATE	 	ACTION
	BAHAMAS

	 	Not later than 45
days after the
Amendment No. 3
Effective Date, or
such later date as
is acceptable to
the Administrative Agent.
	 	For each of the Bahamian
vessels1 listed
below, an Amendment No. 3 to the Deed
of Covenants, in form and substance
reasonably satisfactory to the
Administrative Agent, with respect to
such vessel shall be executed:
	 

	 	 
	 	a) Dole Africa

b) Dole America

c) Dole Asia

d) Dole California

e) Dole Costa Rica

f) Dole Ecuador

g) Dole Europa

h) Dole Honduras

i) Tropical Mist

j) Tropical Morn

k) Tropical Sky

l) Tropical Star

	 
	 	 	 	 
	CANADA

	 	Not later than 45
days after the
Amendment No. 3
Effective Date, or
such later date as
is acceptable to
the Administrative
Agent.
	 	Dole Foods of Canada LTD shall have
executed an Acknowledgment and
Confirmation of the Security
Agreement, in form and substance
reasonably satisfactory to the
Administrative Agent.
	 
	 	 	 	 
	CHILE

	 	Not later than 45
days after the
Amendment No. 3
Effective Date, or
such later date as
is acceptable o the
Administrative
Agent.
	 	Each Chilean Guarantor shall have
duly authorized, executed and
delivered to the Administrative Agent
an amendment to the Bond Reserves
(Reserva de Cauciones) in in form and
substance reasonably satisfactory to
the Administrative Agent.
	 
	 	 	 	 
	COSTA RICA

	 	Not later than 45
days after the
Amendment No. 3
Effective Date, or
such later date as
is acceptable to
the Administrative
	 	The security documents granted by the
Costa Rican Guarantors shall have
been amended in form and substance
reasonably satisfactory to the
Administrative Agent.








 




			
	1 	 	If any of the vessels listed herein are no longer
owned by Dole Food Company, Inc. or its Subsidiaries (“Dole”) before the date
that is 45 days after the Amendment No. 3 Effective Date, Dole will provide the
to the Administrative Agent such documentation the Administrative Agent
reasonably requires in connection with the sale of such vessel and will not be
required to execute the amendment described herein.




 









 










	 	 	 	 	 
	 

	 	Agent.	 	 
	 
	 	 	 	 
	ECUADOR

	 	Not later than 45
days after the
Amendment No. 3
Effective Date, or
such later date as
is acceptable o the
Administrative
Agent.
	 	The security documents granted by the
Ecuadorian Guarantors shall have been
amended in form and substance
reasonably satisfactory to the
Administrative Agent.
	 
	 	 	 	 
	GERMANY

	 	Not later than 45
days after the
Amendment No. 3
Effective Date, or
such later date as
is acceptable o the
Administrative
Agent.
	 	The German Guarantors shall have
executed the accessory security
documents (i.e. account pledge
agreements) and the non-accessory
security documents (i.e. security
transfer agreements) in form and
substance reasonably satisfactory to
the Administrative Agent.
	 
	 	 	 	 
	HONG KONG

	 	Not later than 45
days after the
Amendment No. 3
Effective Date, or
such later date as is acceptable o the
Administrative
Agent.
	 	For each of the Guarantors listed
below, a Second Supplemental Deed, in
form and substance reasonably
satisfactory to the Administrative
Agent, shall have been executed:
	 

	 	 
	 	(i) Dole Hong Kong Limited


(ii) Dole China Limited


(iii) Castle & Cooke Worldwide Limited
	 
	 	 	 	 
	ITALY

	 	Not later than 45
days after the
Amendment No. 3
Effective Date, or
such later date as
is acceptable to
the Administrative
Agent.
	 	For each existing Italian security
document listed below a new
confirmation and extension agreement,
in form and substance reasonably
satisfactory to the Administrative
Agent, shall have been executed (each
a “Confirmation and Extension
Agreement”):
	 

	 	 	 	1. Assignment of Receivables
Agreement for Dole Italia SpA



2. Assignment of Receivables
Agreement for Tropical Shipping
Italia SpA


3. Account Pledge Agreement for Dole
Italia SpA


4. Account Pledge Agreement for
Tropical Shipping Italia SpA
	 
	 	 	 	 
	 

	 	Not later that 20
days from the
execution of each
of the Confirmation
and Extension
Agreements for the
Account
	 	Each Pledgor shall notify each
Depository Bank of the extension and
confirmation by serving complete
service process on each of the
Depositary Banks, by way of a Court






 









 






	 	 	 	 	 
	 

	 	Pledge
Agreements
	 	Bailiff (ufficiale giudiziario), with
a statement duly signed by its legal
representative or a delegated proxy
of the Pledgor therein and bearing a
date certain (“data certa”), in the
form indicated in Schedule C of each
of the Confirmation and Extension
Agreements and deliver to the
Security Agent the original of the
service report within theConfirmation
and Extension Agreement.
	 
	 

	 	Every 2 (two)
months starting
from the date of
execution of each
of the Confirmation
and Extension
Agreements for the
Account Pledge
Agreements
	 	Each Pledgor therein shall serve on
the relevant Depository Bank by means
of Piego Raccomandato a notice
confirming the creation of the
Original Bank Account Pledge as
confirmed and extended under each
Confirmation and Extension Agreement
on the current balance of the Bank
Accounts in accordance with the form
contained in Schedule D thereto. The
Pledgor shall provide the Security
Agent with satisfactory evidence of
the services as soon as practicable.
	 
	 	 	 	 
	TURKEY

	 	Not later than 45
days after the
Amendment No. 3
Effective Date, or
such later date as
is acceptable o the
Administrative Agent.
	 	The documents listed below in
connetction with Dole Fresh Fruit
Med. Gýda Ürünleri Ticaret A.a. shall
have been re-executed, granted or
produced, as appropriate, in form and
substance reasonably satisfactory to
the Administrative Agent:
	 

	 	 
	 	(i) security agreement


(ii) mortgage agreement


(iii) commercial enterprise pledge
agreements


(iv) account pledge agreement


(vi) representation and
indemnification letter


(vii) lien searches
	 
	 	 	 	 
	Not more than 90
days after the
Amendment No. 3
Effective Date, or
such later date as
is acceptable to
the Administrative
Agent.	 	The Borrowers shall provide to the Administrative Agent
supplement any information to be added to Schedule XII (Certain
Foreign Security Documents, Foreign Subsidiaries Party to
Foreign Security Document, etc.) to complete such Schedule XII,
without deleting any of the matters disclosed therein on the
Amendment No. 3 Effective Date.






 









 






	 	 	 
	Date	 	Action
	Not more than 45
days after the
Amendment No. 3
Effective Date, or
such later date as
is acceptable to
the Administrative
Agent.

	 	The following entities shall authorize, execute and deliver to
the Administrative Agent their signatures to the Foreign
Subsidiaries Guaranty and Foreign Security Documents
Acknowledgment and Consent2:

ECUADOR

Actividades Agricolas, S.A., as a Guarantor

Agroverde, S.A., as a Guarantor

Bancuber, S.A., as a Guarantor

Compania Naviera Agmaresa, S.A., as a Guarantor

Friocont, S.A., as a Guarantor

Frutban, S.A., as a Guarantor

Granelcont, S.A., as a Guarantor

Guayami, S.A., as a Guarantor

Megabanana, S.A., as a Guarantor

Naportec, S.A., as a Guarantor

Pescaseroli, S.A., as a Guarantor

Productora Cartonera, S.A., as a Guarantor

Productos Del Litoral, S.A., as Guarantor

Redamawal, S.A., as a Guarantor

Siembranueva, S.A., as a Guarantor

Sociedad Agropecuaria Pimocha, C.A., as a Guarantor








 




			
	2 	 	If any of the entities listed below is dissolved or
sold before the date that is 45 days after the Amendment No. 3 Effective Date,
such entity will provide to the Administrative Agent such documentation the
Administrative Agent reasonably requires in connection with the dissolution or
disposition and will not be required to execute the Foreign Subsidiaries
Guaranty and Foreign Security Documents Acknowledgment and Consent.




 









 










	 	 	 
	 

	 	Talleres Y Llantas, S.A., as a guarantor

Tecnicos Y Electricistas, S.A., as a Guarantor

Transportes Por Mar, S.A., as a Guarantor

Union De Bananeros Ecuatorianos, S.A., as a Guarantor

Zanpoti, S.A., as a Guarantor

Compañía Inversiones Florícola, as a Guarantor

Modumol S.A. as a Guarantor



COSTA RICA

Aero-Fumigacion Centroamericana, S.A., as a Guarantor

Agroindustrial Pinas Del Bosque, S.A., as a Guarantor

Almancenes Atalanta, S.A., as a Guarantor

Alpha Sideral, S.A., as a Guarantor

Bananera El Porvenir, S.A., as a Guarantor

Bananera La Paz, S.A., as a Guarantor

Compania Bananera Deba, S.A., as a Guarantor

Compania Bananera El Encanto, S.A., as a Guarantor

Compania Frutos De La Tierra, S.A., as a Guarantor

Compania Musa, S.A., as a Guarantor

Desarrollo Bananero La Esperanza, S.A., as a Guarantor

Diversificados De Costa Rica Dicori, S.A., as a Guarantor

Dole Shared Services, Limited, as a Guarantor

Eco Pinas Del Arenal S.A., as a Guarantor

Hacienda La Rosalia, S.A., as a Guarantor

Roxana Farms, S.A., as a Guarantor

Servicios Audanales Banadole, S.A., as a Guarantor

Standard Fruit De Costa Rica, S.A., as a Guarantor







 









 






	 	 	 
	 

	 	Desarrollo Melonero del Golfo S.A., as a Guarantor

Comercializadora e importadora Viña del Mar S.A., as a Guarantor

Agropecuaria Rio Jiménez S.A., as a Guarantor

Compañía Bananera del San Rafael S.A., as a Guarantor

La Perla S.A., as a Guarantor

Compañía Financiera de Costa Rica S.A., as a Guarantor

Compania Musa Cero Nueve, S.A. , as a Guarantor

Dole Shared Services, Limited. , as a Guarantor

Eco Pinas Del Arenal S.A. , as a Guarantor

	 
	 	 
	 

	 	BERMUDA

Agoura Limited, as a Guarantor

Dole Packaged Foods Asia, as a Guarantor

Baltime Limited, as a Guarantor

Camarillo Limited, as a Guarantor

Dole Foreign Holdings, LTD., as a Guarantor

Dole Foreign Holdings II , LTD., as a Guarantor

Dole Fresh Fruit International Limited, as a Guarantor

Dole International, LTD., as a Guarantor

Interfruit Company Limited, as a Guarantor

Mahele, Limited, as a Guarantor

Mendocino Limited, as a Guarantor

Reefership Marine Services, LTD., as a Guarantor

Solamerica, LTD., as a Guarantor

Standard Fruit Co. (Bermuda) LTD., as a Guarantor

Ventura Trading Ltd., as a Guarantor







 









 






	 	 	 
	 
	 	 
	 

	 	CHILE

Agrícola California, Limitada, as a Guarantor

Agrícola Pencahue Limitada, as a Guarantor

Agrícola Punitaqui Limitada, as a Guarantor

Agrícola Rauquen Limitada, as a Guarantor

Dole Chile, S.A., as a Guarantor

Embalajes Standard, S.A., as a Guarantor

Inversiones Del Pacifico, S.A., as a Guarantor

	 
	 	 
	 

	 	HONDURAS

Agroindustrial Del Caribe, S.A., as a Guarantor

Agroindustrial Alma Verde, S.A., as a Guarantor

Bananera Rio Mame, S.A., as a Guarantor

Bienes Y Valores, S.A., as a Guarantor

Clinicas Medicas Del Aguan, S.A., as a Guarantor

Compania Agricola El Progreso, S.A., as a Guarantor

Compania Agricola Mazapan, S.A., as a Guarantor

Compania Agropecuaria El Porvenir, S.A., as a Guarantor

Distribuidora De Productos Diversos, S.A., as a Guarantor

Energua S.A. Sucursali Honduras, as a Guarantor

Equipo Pesado, S.A., as a Guarantor

Hospital Coyoles, S.A., as a Guarantor

Compania Inversiones Medicas Nacioncale, S.A., as a Guarantor

Inversiones Y Valores Montecristo, S.A., as a Guarantor

Laboratorios Y Servicios De Meristemos, S.A., as a Guarantor







 









 






	 	 	 
	 

	 	Multiservicios S.A., as a Guarantor

Pina Antillana, S.A., as a Guarantor

Plasticos, S.A., as a Guarantor

Productora Agricola De Atlantida, S.A., as a Guarantor

Servicios E Investigaciones Aereas, S.A., as a Guarantor

Sogas, S.A., as a Guarantor

Standard Fruit De Honduras, S.A., as a Guarantor

Vigilancia Y Seguridad, S.A., as a Guarantor

Bienes y Servicios, S.A., as a Guarantor

Desarrollos Urbanos La Ceiba, S.A., as a Guarantor

Servicios Hondureños de Agricultura y Recursos de Investigación

Piñera, S.A., as a Guarantor

	 
	 	 
	 

	 	COLOMBIA

Inversiones Doban S.A.S., as a Guarantor

	 
	 	 
	 

	 	HONG KONG

Castle & Cooke Worldwide, Limited, as a Guarantor

Dole China Limited, as a Guarantor

Dole Hong Kong Limited, as a Guarantor

	 
	 	 
	 

	 	GERMANY

Dole Deutschland BETEILIGUNGSGESELLSCHAFT MBH, as a Guarantor

Dole Germany OHG, as a Guarantor

Dole Shared Services Deutschland GMBH, as a Guarantor

Paul Kempowski GmbH & Co. KG, as a Guarantor

	 
	 	 
	 

	 	CANADA







 









 






	 	 	 
	 

	 	Dole Foods of Canada, LTD., as a Guarantor

	 
	 	 
	 

	 	TURKEY

Dole Fresh Fruýt Med Ürünleri Ticaret A.Ş., as a Guarantor.

	 
	 	 
	 

	 	ITALY

Dole Italia S.P.A., as a Guarantor

Tropical Shipping Italiana, SPA, as a Guarantor

	 
	 	 
	 

	 	PHILIPPINES

Dole Philippines, Inc., as a Guarantor

	 
	 	 
	 

	 	JAPAN

Dole Japan, LTD., as a Guarantor

	 
	 	 
	 

	 	LUXEMBOURG

Dole Luxembourg s.a.r.l., as a Guarantor

Dole Luxembourg II s.a.r.l., as a Guarantor

	 
	 	 
	Not more than 45
days after the
Amendment No. 3
Effective Date, or
such later date as
is acceptable to
the Administrative
Agent.

	 	The entities executing the Foreign Subsidiaries Guaranty and
Foreign Security Documents Acknowledgment and Consent shall
authorize, execute and deliver to the Administrative Agent
their signatures to the Intercompany Subordination
Acknowledgment and Amendment.
	 
	 	 
	Not more than 90
days after the
Amendment No. 3
Effective Date, or
such later date as
is acceptable to
the Administrative

	 	The Borrowers shall provide to the Administrative Agent revised
information to be added to Schedule III (Real Properties) to
complete such Schedule III.






 









 






	 	 	 
	Agent.
	 	 







 











 





EXHIBIT A-1




FORM OF NOTICE OF BORROWING




Deutsche Bank AG New York Branch,

      as Administrative Agent (the “Administrative Agent”) for the Lenders

      party to the Credit Agreement

      referred to below

60 Wall Street

New York, New York 10005



Attention: Scottye Lindsey



Ladies and Gentlemen:




          The undersigned, [Dole Food Company, Inc.]1 [Solvest,
Ltd.]2 (the “Borrower”), refers to the Credit Agreement, dated as of
March 28, 2003, amended and restated as of April 18, 2005, further amended and restated as of April
12, 2006, further amended as of March 18, 2009, further amended as of October 26, 2009 and further
amended as of March 2, 2010 (as so amended and restated and as the same may be further amended,
restated, modified and/or supplemented from time to time, the “Credit Agreement”, the terms
defined therein being used herein as therein defined), among the Borrower, [Dole Food Company,
Inc.] [Solvest, Ltd.], the Lenders from time to time party thereto, the other parties thereto, and
you, as Administrative Agent and Deposit Bank, and hereby gives you notice, irrevocably, pursuant
to Section 1.03 of the Credit Agreement, that the undersigned hereby requests a Borrowing under the
Credit Agreement, and in that connection sets forth below the information relating to such
Borrowing (the “Proposed Borrowing”) as required by Section 1.03 of the Credit Agreement:





     (i) The aggregate principal amount of the Proposed Borrowing is [$                     ].




     (ii) The Business Day of the Proposed Borrowing is [                       ,    ].




     (iii) The Proposed Borrowing shall consist of [Tranche B-1 Term Loans] [Tranche C-1
Term Loans] [U.S. Borrower Incremental Term Loans] [Bermuda Borrower Incremental Term
Loans].




     (iv) The Loans to be made pursuant to the Proposed Borrowing shall be initially
maintained as [Base Rate Loans] [Eurodollar Loans].





 




			
	1	 	To be included for a Proposed Borrowing
of Tranche B-1 Term Loans and U.S. Borrower Incremental Term Loans.
	 
	2	 	To be included for a Proposed Borrowing
of Tranche C-1 Term Loans and Bermuda Borrower Incremental Term Loans.




 









 










Exhibit A-1

Page 2





     [(v) The initial Interest Period for the Proposed Borrowing is [one week] [one month]
[two months] [three months] [six months] [, subject to availability to all Lenders which are
required to make Loans of the respective Tranche, [[nine] [twelve] months], and if such
Interest Period is unavailable [specify alternate desired]].]3




     (vi) The location and number of the Borrower’s account to which funds are to be
disbursed is:


Bank Name: [     ]

ABA#: [               ]

A/C Name: [     ]

A/C#: [               ]




          The undersigned hereby certify(ies) that the following statements are true on the date hereof,
and will be true on the date of the Proposed Borrowing:





     (A) the representations and warranties contained in the Credit Agreement or the other
Credit Documents are and will be true and correct in all material respects, before and after
giving effect to the Proposed Borrowing and to the application of the proceeds thereof, as
though made on such date, 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; and




     (B) no Default or Event of Default has occurred and is continuing, or would result from
such Proposed Borrowing or from the application of the proceeds thereof, in each case
immediately after giving effect thereto.



	 	 	 	 	 
	 	Very truly yours,





[DOLE FOOD COMPANY, INC.]





[SOLVEST, LTD.]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	3	 	To be included for a Proposed Borrowing
of Eurodollar Loans. Unless the Syndication Date has theretofore occurred, the
duration of any Interest Period is subject to the limitations provided in
Section 1.09. Interest Periods of nine and twelve months may only be selected
in the case of a Borrowing of Eurodollar Loans and if such Interest Period is
agreed to all Lenders under the respective Tranche.




 









 










EXHIBIT A-2




FORM OF NOTICE OF CONVERSION/CONTINUATION




[Date]




Deutsche Bank AG New York Branch,

      as Administrative Agent (the “Administrative Agent”) for the Lenders

      party to the Credit Agreement

      referred to below

60 Wall Street

New York, New York 10005



Attention: Scottye Lindsey



Ladies and Gentlemen:




          The undersigned, [Dole Food Company, Inc.] [Solvest, Ltd.] (the “Borrower”), refers to
the Credit Agreement, dated as of March 28, 2003, amended and restated as of April 18, 2005,
further amended and restated as of April 12, 2006, further amended as of March 18, 2009, further
amended as of October 26, 2009 and further amended as of March 2, 2010 (as so amended and restated
and as the same may be further amended, restated, modified and/or supplemented from time to time,
the “Credit Agreement”, the terms defined therein being used herein as therein defined),
among the Borrower, [Dole Food Company, Inc.] [Solvest, Ltd.], the Lenders from time to time party
thereto, the other parties thereto, and you, as Administrative Agent and Deposit Bank, and hereby
give you notice, irrevocably, pursuant to Section [1.06] [1.09] of the Credit Agreement, that the
undersigned hereby requests to [convert] [continue] the Borrowing of [Tranche B-1 Term Loans]
[Tranche C-1 Term Loans] [U.S. Borrower Incremental Term Loans] [Bermuda Borrower Incremental Term
Loans] referred to below, and in that connection sets forth below the information relating to such
[conversion] [continuation] (the “Proposed [Conversion] [Continuation]”) as required by
Section [1.06] [1.09] of the Credit Agreement:






     (i) The Proposed [Conversion] [Continuation] relates to the Borrowing of [Tranche B-1
Term Loans] [Tranche C-1 Term Loans] denominated in Dollars originally made on                     ,
___(the “Outstanding Borrowing”) in the principal amount of $                     and currently
maintained as a Borrowing of [Base Rate Loans] [Eurodollar Loans with an Interest Period
ending on                     , ___].




     (ii) The Business Day of the Proposed [Conversion] [Continuation] is
                    .1





 




			
	1	 	Shall be a Business Day at least three
Business Days after the date hereof, provided that such notice shall be
deemed to have been given on a certain day only if given before 12:00 Noon (New
York time) on such day.




 









 










Exhibit A-2

Page 2





     (iii) The Outstanding Borrowing shall be ([continued as a Borrowing of Eurodollar
Loans with an Interest Period of                     ] [converted into a Borrowing of [Base Rate
Loans] [Eurodollar Loans with an Interest Period of                     ]].2



          [The undersigned hereby certifies that no Default or Event of Default has occurred and is
continuing on the date hereof or will have occurred and be continuing on the date of the Proposed
[Conversion] [Continuation].]3




	 	 	 	 	 
	 	Very truly yours,




[DOLE FOOD COMPANY, INC.]




[SOLVEST, LTD.]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	2	 	In the event that either (x) only a
portion of the Outstanding Borrowing is to be so converted or continued or (y)
the Outstanding Borrowing is to be divided into separate Borrowings with
different Interest Periods, the Borrower should make appropriate modifications
to this clause to reflect same.
	 
	3	 	In the case of a Proposed Conversion or
Continuation, insert this sentence only in the event that the conversion is
from a Base Rate Loan to a Eurodollar Loan or in the case of a continuation of
a Eurodollar Loan.




 









 










EXHIBIT B-1




FORM OF TRANCHE B-1 TERM NOTE




	 	 	 
	$                                        

	 	New York, New York
	 

	 	                     ___, ___






          FOR VALUE RECEIVED, DOLE FOOD COMPANY, INC., a Delaware corporation (the “U.S.
Borrower”), hereby promises to pay to the order of                                          or its registered
assigns (the “Lender”), in lawful money of the United States of America in immediately
available funds, at the Payment Office (as defined in the Agreement referred to below) on the
Tranche B-1/C-1 Term Loan Maturity Date (as defined in the Agreement) the principal sum of
                     DOLLARS ($                     ) or, if less, the unpaid principal amount of the Tranche B-1
Term Loans (as defined in the Agreement) made by the Lender pursuant to the Agreement.




          The U.S. Borrower also promises to pay interest on the unpaid principal amount of each Tranche
B-1 Term Loan made by the Lender in like money at said office from the date hereof until paid at
the rates and at the times provided in Section 1.08 of the Agreement. All payments pursuant to
this Note shall be made in accordance with the requirements of Sections 4.03 and 4.04 of the
Agreement.




          This Note is one of the Tranche B-1 Term Notes referred to in the Credit Agreement, dated as
of March 28, 2003, amended and restated as of April 18, 2005, further amended and restated as of
April 12, 2006, further amended as of March 18, 2009, further amended as of October 26, 2009 and
further amended as of March 2, 2010 (as so amended and restated and as the same may be further
amended, restated, modified and/or supplemented from time to time, the “Agreement”), among
the U.S. Borrower, Solvest, Ltd., the lenders from time to time party thereto (including the
Lender), the other parties thereto and Deutsche Bank AG New York Branch, as Administrative Agent
and Deposit Bank, and is entitled to the benefits thereof and of the other Credit Documents (as
defined in the Agreement). This Note is secured by the U.S. Security Documents (as defined in the
Agreement) and is entitled to the benefits of the Guaranties (other than the Foreign Subsidiaries
Guaranty, the Bermuda Borrower’s Guaranty and the U.S. Borrower’s Guaranty under the Borrower
Guaranty) (as each such term is defined in the Agreement). This Note is subject to voluntary
prepayment and mandatory repayment prior to the Tranche B-1/C-1 Term Loan Maturity Date, in whole
or in part, as provided in the Agreement.




          In case an Event of Default (as defined in the Agreement) shall occur and be continuing, the
principal of and accrued interest on this Note may be declared to be due and payable in the manner
and with the effect provided in the Agreement.




          The U.S. Borrower hereby waives presentment, demand, protest or notice of any kind in
connection with this Note.







 









 








Exhibit B-1

Page 2




          THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK.




	 	 	 	 	 
	 	DOLE FOOD COMPANY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT B-2




FORM OF TRANCHE C-1 TERM NOTE




	 	 	 
	$                                        

	 	New York, New York
	 

	 	                     ___, ___






          FOR VALUE RECEIVED, SOLVEST, LTD., a company organized under the laws of Bermuda (the
"Bermuda Borrower”), hereby promises to pay to the order of                      or its registered
assigns (the “Lender”), in lawful money of the United States of America in immediately
available funds, at the Payment Office (as defined in the Agreement referred to below) on the
Tranche B-1/C-1 Term Loan Maturity Date (as defined in the Agreement) the principal sum of
                                         DOLLARS ($                     ) or, if less, the unpaid principal amount of the Tranche
C-1 Term Loans (as defined in the Agreement) made by the Lender pursuant to the Agreement.




          The Bermuda Borrower also promises to pay interest on the unpaid principal amount of each
Tranche C-1 Term Loan made by the Lender in like money at said office from the date hereof until
paid at the rates and at the times provided in Section 1.08 of the Agreement. All payments
pursuant to this Note shall be made in accordance with the requirements of Sections 4.03 and 4.04
of the Agreement.




          This Note is one of the Tranche C-1 Term Notes referred to in the Credit Agreement, dated as
of March 28, 2003, amended and restated as of April 18, 2005, further amended and restated as of
April 12, 2006, further amended as of March 18, 2009, further amended as of October 26, 2009 and
further amended as of March 2, 2010 (as so amended and restated and as the same may be further
amended, restated, modified and/or supplemented from time to time, the “Agreement”), among
Dole Food Company, Inc., the Bermuda Borrower, the lenders from time to time party thereto
(including the Lender), the other parties thereto and Deutsche Bank AG New York Branch, as
Administrative Agent and Deposit Bank, and is entitled to the benefits thereof and of the other
Credit Documents (as defined in the Agreement). This Note is secured by the Security Documents (as
such term is defined in the Agreement) and is entitled to the benefits of the Guaranties (other
than the Bermuda Borrower’s Guaranty under the Borrower Guaranty) (as each such term is defined in
the Agreement). This Note is subject to voluntary prepayment and mandatory repayment prior to the
Tranche B-1/C-1 Term Loan Maturity Date, in whole or in part, and as provided in the Agreement.




          In case an Event of Default (as defined in the Agreement) shall occur and be continuing, the
principal of and accrued interest on this Note may be declared to be due and payable in the manner
and with the effect provided in the Agreement.




          The Bermuda Borrower hereby waives presentment, demand, protest or notice of any kind in
connection with this Note.







 









 








Exhibit B-2

Page 2




          THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK.




	 	 	 	 	 
	 	SOLVEST, LTD.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 








 









 








EXHIBIT B-3




FORM OF INCREMENTAL TERM NOTE




	 	 	 
	$                                        

	 	New York, New York
	 

	 	                     ___, ___






          FOR VALUE RECEIVED, [DOLE FOOD COMPANY, INC.] [SOLVEST LTD.]1, a
[Delaware corporation] [company organized under the laws of Bermuda] (the [U.S.]
[Bermuda]Borrower”), hereby promises to pay to the order of                      or its
registered assigns (the “Lender”), in lawful money of the United States of America in
immediately available funds, at the Payment Office (as defined in the Agreement referred to below)
on the Incremental Term Loan Maturity Date (as defined in the Agreement) the principal sum of
                                         DOLLARS ($                     ) or, if less, the unpaid principal amount of all
                     [Insert the applicable description of the respective Tranche of Incremental Term
Loans] (as defined in the Agreement) made by the Lender pursuant to the Agreement.




          The [U.S.] [Bermuda] Borrower promises also to pay interest on the unpaid principal amount of
each made by the Lender in like money at said office from the date hereof until paid at the rates
and at the times provided in Section 1.08 of the Agreement. All payments pursuant to this Note
shall be made in accordance with the requirements of Sections 4.03 and 4.04 of the Agreement.




          This Note is one of the Incremental Term Notes referred to in the Credit Agreement, dated as
of March 28, 2003, amended and restated as of April 18, 2005, further amended and restated as of
April 12, 2006, further amended as of March 18, 2009, further amended as of October 26, 2009 and
further amended as of March 2, 2010 (as so amended and restated and as the same may be further
amended, restated, modified and/or supplemented from time to time, the “Agreement”), among
[the U.S, Borrower, Solvest, Ltd.] [the Bermuda Borrower, Dole Food Company, Inc.], the lenders
from time to time party thereto (including the Lender), the other parties thereto and Deutsche Bank
AG New York Branch, as Administrative Agent and Deposit Bank, and is entitled to the benefits
thereof and of the other Credit Documents (as defined in the Agreement). [This Note is secured by
the U.S. Security Documents (as such term is defined in the Agreement) and is entitled to the
benefits of the Guaranties (other than the Foreign Subsidiaries Guaranty, the Bermuda Borrower’s
Guaranty and the U.S. Borrower’s Guaranty under the Borrower Guaranty) (as each such term is
defined in the Agreement).]2 [This Note is secured by the Security Documents
(as such term is defined in the Agreement) and is entitled to the benefits of the Guaranties (other
than the Bermuda Borrower’s Guaranty under the Borrower Guaranty) (as each such term is defined in
the Agreement).]3 This Note is subject to voluntary prepayment and mandatory
repay-






 




			
	1	 	Insert name of Incremental Term Loan
Borrower.
	 
	2	 	Insert if the U.S. Borrower is the
Incremental Term Loan Borrower.
	 
	3	 	Insert if the Bermuda Borrower is the
Incremental Term Loan Borrower.




 









 










Exhibit B-3

Page 2



ment prior to the Incremental Term Loan Maturity Date, in whole or in part, and as provided in
the Agreement.




          In case an Event of Default (as defined in the Agreement) shall occur and be continuing, the
principal of and accrued interest on this Note may be declared to be due and payable in the manner
and with the effect provided in the Agreement.




          The [U.S.] [Bermuda] Borrower hereby waives presentment, demand, protest or notice of any kind
in connection with this Note.







 









 








Exhibit B-3

Page 3




          THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK.




	 	 	 	 	 
	 	[DOLE FOOD COMPANY, INC.]




[SOLVEST, LTD.]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 








 









 








EXHIBIT D




FORM OF SECTION 4.04(b)(ii) CERTIFICATE




          Reference is hereby made to the Credit Agreement, dated as of March 28, 2003, amended and
restated as of April 18, 2005, further amended and restated as of April 12, 2006, further amended
as of March 18, 2009, further amended as of October 26, 2009 and further amended as of March 2,
2010, among Dole Food Company, Inc., Solvest, Ltd., the lenders from time to time party thereto,
Banc of America Securities LLC, as Syndication Agent, The Bank of Nova Scotia and Rabobank
International, as Co-Documentation Agents, Deutsche Bank Securities Inc., Banc of America
Securities LLC and Wells Fargo Securities, LLC, as Joint Lead Arrangers and Joint Book Runners, and
Deutsche Bank AG New York Branch, as Administrative Agent and Deposit Bank (as so amended and
restated and as the same may be further amended, restated, modified and/or supplemented from time
to time, the “Credit Agreement”). Pursuant to the provisions of Section 4.04(b)(ii) of the
Credit Agreement, the undersigned hereby certifies that it is not a “bank” as such term is used in
Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended.




	 	 	 	 	 
	 	[NAME OF LENDER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Date:           , ___









 









 








EXHIBIT E-2




FORM OF FOREIGN SUBSIDIARIES GUARANTY ACKNOWLEDGEMENT




[                    ]




To the Administrative Agent and each of




the Lenders party to the Credit Agreement




referred to below




Re:       Amended Credit Agreement



Ladies and Gentlemen:




          Reference is made to that certain Credit Agreement, dated as of March 28, 2003, amended and
restated as of April 18, 2005, further amended and restated as of April 12, 2006, further amended
as of March 18, 2009, further amended as of October 26, 2009 and further amended as of March 2,
2010 (the “Amendment Date”) (as amended, modified, restated and/or supplemented from time to time,
the “Credit Agreement”), among Dole Food Company, Inc., a Delaware corporation (the “U.S.
Borrower”), Solvest, Ltd., a company organized under the laws of Bermuda (the “Bermuda Borrower”
and, together with the U.S. Borrower, the “Borrowers”), the lenders from time to time party thereto
(the “Lenders”), Deutsche Bank AG, New York Branch (in its individual capacity, “DBAG”), as Deposit
Bank (in such capacity, together with any successor deposit bank, the “Deposit Bank”) DBAG, as
Administrative Agent (in such capacity, together with any successor agent, the “Administrative
Agent”) and the other parties thereto. Unless otherwise indicated herein, capitalized terms used
but not defined herein shall have the respective meanings set forth in the Credit Agreement. This
Foreign Subsidiaries Guaranty and Foreign Security Documents Acknowledgment and Consent shall
hereinafter be referred to as the “Acknowledgment and Consent.”




          I. Foreign Subsidiaries Guaranty and Foreign Security Documents Acknowledgement.




          1. Each of the undersigned Foreign Subsidiary Guarantors hereby acknowledges (x) the Credit
Agreement and each other Credit Documents and the transactions contemplated thereby and (y) copies
(or originals) of the Credit Documents and all opinions, instruments, certificates and all other
documents delivered in connection therewith, as in effect on the Amendment Date, have been
furnished or otherwise been provided (or made available) to a senior financial officer of such
Foreign Subsidiary Guarantor.




          2. Each of the undersigned Foreign Subsidiary Guarantors hereby acknowledges and agrees, and
represents and warrants, that on and after the occurrence of, and after giving effect to, the
Amendment Date and any increase in the amounts owing to the Lenders, Issuing Lender, Bank Guaranty
Issuer and/or any Agent under the Credit Agreement on or after the Amendment Date, (i) it
constitutes a Foreign Subsidiary of the U.S. Borrower which is a party to the Foreign Subsidiaries
Guaranty, dated as of March 28, 2003, and further acknowledged and amended as of April 12, 2006
made by the Foreign Subsidiaries of the U.S. Borrower party thereto in favor of the Administrative
Agent, as the same may be






 









 








Exhibit B-3

Page 2



amended, restated, modified and/or supplemented from time to time in accordance with the terms
thereof, and shall include any counterpart thereof and any other similar guaranty executed and
delivered by any Foreign Subsidiary of the U.S. Borrower pursuant to Section 8.11 of the Credit
Agreement, (ii) the Foreign Subsidiaries Guaranty shall remain in full force and effect with
respect to such Foreign Subsidiary Guarantor, and (iii) the Foreign Security Documents listed under
Schedule XII to the Credit Agreement to which such Foreign Subsidiary Guarantor is a party shall
remain in full force and effect with respect to such Foreign Subsidiary Guarantor.




          3. [Each Foreign Subsidiary Guarantor organized under the laws of Turkey (i) acknowledges
that all the Liens it has granted in favor of the Collateral Agent (including, without limitation,
the mortgage and the commercial enterprise pledge (together the “Turkish Liens”)) continue in full
force and effect and secure its obligations under the Foreign Subsidiaries Guaranty, (ii)
undertakes that new Liens will be granted in favor of the Collateral Agent (including first degree
priority mortgage and first degree priority commercial enterprise pledge) (the “New Liens”)
replacing the Turkish Liens on or about the execution date of the Credit Agreement by way of
including, without limitation, execution and registration of the mortgage and commercial enterprise
pledge agreements substantially in the form satisfactory to the Administrative Agent, and (iii)
acknowledges that the New Liens together with any other Liens will be in full force and effect as
of the date of release of the respective Turkish Liens and secure each of the Foreign Subsidiary
Guarantor’s obligations under the Foreign Subsidiaries Guaranty.]




          4. Each Foreign Subsidiary Guarantor organized under the laws of Costa Rica acknowledges that
all the Liens it has granted in favor of the Collateral Agent (including without limitation, the
Pledge Agreements and the other Foreign Security Agreements governed by the laws of Costa Rica)
continue in full force and effect and secure its obligations under the Foreign Subsidiaries
Guaranty.




          5. Each of the undersigned Foreign Subsidiary Guarantors hereby makes each of the
representations and warranties contained in Section 13 of the Foreign Subsidiaries Guaranty on the
Amendment Date, both before and after giving effect to this Acknowledgement and Consent.




          II. Consent to the amendment of the Credit Agreement.




          Each of the Foreign Subsidiaries Guarantors consents to the amendment of the Credit Agreement
as of the Amendment Date and agrees that all references to the Credit Agreement in any Credit
Document to which it is party shall refer to the Credit Agreement as amended on the Amendment Date.
Each of the Foreign Subsidiaries Guarantors further agrees to take all necessary actions
reasonably requested by the Administrative Agent in connection with the Foreign Subsidiaries
Guaranty and each of the Foreign Security Documents in order to preserve and protect the validity
of the Liens granted to the Collateral Agent pursuant to the Foreign Subsidiaries Guaranty and each
of the Foreign Security Documents.




          III. Limitations of the Guaranty granted by the German Guarantors





               a) The restrictions in this Clause III shall apply to any guarantee and indemnity (hereinafter
the “Guarantee”) granted by a Guarantor incorporated under the laws of Germany as a limited
liability company (“GmbH”) (a “German Guarantor”) to secure liabilities of its direct or indirect
shareholder(s) (upstream) or an entity affiliated with such shareholder (verbundenes Unternehmen)
within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) (cross-stream)
(excluding, for clarification purposes any direct or indirect Subsidiary of such Guarantor).



 









 





Exhibit B-3

Page 3




               b) The restrictions in this Clause III. shall not apply to the extent the German Guarantor
secures any indebtedness under any Credit Documents in respect of (i) loans to the extent they are
on-lent or otherwise (directly or indirectly) passed on to the relevant German Guarantor or its
Subsidiaries and such amount on-lent or otherwise passed on is not repaid or (ii) bank guarantees
or letters of credit that are issued for the benefit of any of the creditors of the German
Guarantor or the German Guarantor’s Subsidiaries or any other benefit granted under this Agreement.



          1. Restrictions on Payment




               a) The parties to this Agreement agree that if payment under the Guarantee would cause the
amount of a German Guarantor’s net assets, as calculated pursuant to Clause III.2 (Net Assets)
below, to fall below the amount of its registered share capital (Stammkapital) or increase an
existing shortage of its registered share capital in each case in violation of section 30 of the
German Limited Liability Companies Act (“GmbHG”), (such event is hereinafter referred to as a
“Capital Impairment”), then the Secured Creditors shall, subject to paragraphs b) to c) below,
demand payment under the Guarantee from such German Guarantor only to the extent such Capital
Impairment would not occur.



               b) If the relevant German Guarantor does not notify the Collateral Agent in writing (the
“Management Notification”) within five (5) Business Days after the Collateral Agent notified such
German Guarantor of its intention to demand payment under the Guarantee that a Capital Impairment
would occur (setting out in reasonable detail to what extent a Capital Impairment would occur and
providing prima facie evidence that a realisation or other measures undertaken in accordance with
the mitigation provisions set out in Clause III.3 (Mitigation) below would not prevent such Capital
Impairment), then the restrictions set out in paragraph a) above shall not apply.



               c) If the relevant German Guarantor does not provide an Auditors’ Determination (as defined in
Clause III.4 (Auditors’ Determination) below) within sixty (60) Business Days from the date on
which the Collateral Agent received the Management Notification then the restrictions set out in
paragraph a) above shall not apply and the Collateral Agent shall not be obliged to assign or make
available to the German Guarantor any net proceeds realised.



          2. Net Assets




               The calculation of net assets (the “Net Assets”) shall only take into account the sum of the
values of the assets of the relevant German Guarantor determined in accordance with applicable law
and court decisions and, if there is no positive going concern (positive Fortführungsprognose)
based on the lower of book value (Buchwert) and liquidation value (Liquidationswert) (consisting of
all assets which correspond to those items listed in section 266 subsection (2) A, B and C of the
German Company Code (“HGB”) less the relevant German Guarantor’s liabilities (consisting of all
liabilities and liability reserves which correspond to those items listed in accordance with
section 266 subsection (3) B, C and D HGB).



               For the purposes of calculating the Net Assets, the following balance sheet items shall be
adjusted as follows :



               a) the amount of any increase in the registered share capital of the relevant German Guarantor
which was carried out after the relevant German Guarantor became a party to



 









 





Exhibit B-3

Page 4



this Agreement without the prior written consent of the Collateral Agent shall be deducted
from the amount of the registered share capital of the relevant German Guarantor;




               b) any funds borrowed by any Borrower under this Agreement which have been or are on-lent or
otherwise passed on to the relevant German Guarantor or to any Subsidiary of such German Guarantor
and have not yet been repaid at the time when payment under the Guarantee is demanded, shall be
disregarded;



               c) loans or other contractual liabilities incurred by the relevant German Guarantor in breach
of the Transaction Documents shall not be taken into account as liabilities.



          3. Mitigation




               a) The relevant German Guarantor shall realise, to the extent legally permitted in a situation
where it does not have sufficient Net Assets to maintain its registered share capital, all of its
assets that are shown in the balance sheet with a book value (Buchwert) that is significantly lower
than the market value of the assets.



               b) The limitations on demanding payment under this Guarantee set out in this Clause III shall
not apply if and to the extent that the relevant German Guarantor is legally permitted to take
measures (including, without limitation, setting-off claims) to avoid demanding payment under the
Guarantee causing a Capital Impairment of the relevant German Guarantor provided that it is
commercially justifiable to take such measures.



          4. Auditors’ Determination




               a) If the relevant German Guarantor claims that a Capital Impairment would occur on payment
under this Guarantee, the German Guarantor may (at its own cost and expense) arrange for the
preparation of a balance sheet by a firm of recognised auditors (the “Auditors”) in order to have
such Auditors determine whether (and if so, to what extent) any payment under this Guarantee would
cause a Capital Impairment (the “Auditors’ Determination”).



               b) The Auditors’ Determination shall be prepared, taking into account the adjustments set out
in Clause III.2 (Net Assets) above, by applying the generally accepted accounting principles
applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) based on the same
principles and evaluation methods as constantly applied by the relevant German Guarantor in the
preparation of its financial statements, in particular in the preparation of its most recent annual
balance sheet, and taking into consideration applicable court rulings of German courts. Subject to
Clause III.6 (No waiver) below, such Auditors’ Determination shall be binding on the relevant
German Guarantor and the Collateral Agent.



               c) Even if the relevant German Guarantor arranges for the preparation of an Auditors’
Determination, the relevant German Guarantor’s obligations under the mitigation provisions set out
in Clause III.3 (Mitigation) above shall continue to exist.



          5. Improvement of Financial Condition




 









 








Exhibit B-3

Page 5




               If, after it has been provided with an Auditors’ Determination which prevented it from
demanding any or only partial payment under this Guarantee, the Collateral Agent ascertains in good
faith that the financial condition of the relevant German Guarantor as set out in the Auditors’
Determination has substantially improved (in particular, if the relevant German Guarantor has taken
any action in accordance with the mitigation provisions set out in Clause III.3 (Mitigation)
above), the Collateral Agent may, at the relevant German Guarantor’s cost and expense, arrange for
the preparation of an updated balance sheet of the relevant German Guarantor by applying the same
principles that were used for the preparation of the Auditors’ Determination by the Auditors who
prepared the Auditors’ Determination pursuant to paragraph a) of Clause III.4 (Auditors’
Determination) above in order for such Auditors to determine whether (and, if so, to what extent)
the Capital Impairment has been cured as a result of the improvement of the financial condition of
the relevant German Guarantor. The Collateral Agent may demand payment under this Guarantee to the
extent that the Auditors determine that the Capital Impairment has been cured.



          6. No waiver




               Nothing in this Clause III shall limit the enforceability, legality or validity of this
Guarantee nor shall it prevent the Collateral Agent from claiming in court that the provision of
this Guarantee by and/or demanding payment under this Guarantee against the relevant German
Guarantor does not fall within the scope of section 30 of the GmbHG. The Collateral Agent’s rights
to any remedies it may have against the relevant German Guarantor shall not be limited if it is
ascertained that section 30 of the GmbHG did not apply. The agreement of the Collateral Agent to
abstain from demanding any or part of the payment under this Guarantee in accordance with the
provisions above shall not constitute a waiver (Verzicht) of any right granted under this Agreement
or any other Credit Document to the Collateral Agent or any Secured Creditor.



          7. GmbH & Co KG.




               The aforementioned provisions shall apply to a limited partnership with a limited liability
company as its general partner (GmbH & Co. KG) mutatis mutandis and all references to net assets
shall be construed as a reference to the aggregated net assets of the general partner and the
limited partnership.



          IV. Miscellaneous.




          1. (a) THIS ACKNOWLEDGEMENT AND CONSENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. Any legal action or proceeding with respect to this
Acknowledgment and Amendment may be brought exclusively 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 Acknowledgment and Amendment, each
Foreign Subsidiary Guarantor hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the exclusive jurisdiction of the aforesaid courts. Each Foreign
Subsidiary Guarantor hereby irrevocably designates, appoints and empowers Corporation Service
Company, with offices on the date hereof at 80 State Street, Albany, NY 12207, as its designee,
appointee and agent to receive, accept and acknowledge for and on its behalf, and in respect of its
property, service of any and all legal process, summons, notices and documents which may be served
in any such action or proceeding. If for any reason such designee, appointee and agent shall cease
to be available to act as such, each Foreign Subsidiary Guarantor agrees to designate a new






 









 








Exhibit B-3

Page 6



designee, appointee and agent in New York City on the terms and for the purposes of this
provision reasonably satisfactory to the Administrative Agent under the Credit Agreement. Each
Foreign Subsidiary Guarantor hereby further irrevocably waives any claim that any such courts lack
jurisdiction over such Foreign Subsidiary Guarantor, and agrees not to plead or claim, in any legal
action or proceeding with respect to this Acknowledgment and Amendment brought in any of the
aforesaid courts, that any such court lacks jurisdiction over such Foreign Subsidiary Guarantor.
Each Foreign Subsidiary 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 Foreign Subsidiary Guarantor at its address
set forth opposite its signature below, such service to become effective 30 days after such
mailing. Each Foreign Subsidiary 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 that such service of process was in any way invalid or ineffective.
Nothing herein shall affect the right of any Secured Creditor to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against any Foreign
Subsidiary Guarantor in any other jurisdiction.




          (b) Each Foreign Subsidiary 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 Acknowledgment and Amendment 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, or that the choice of law provisions are invalid or unenforceable and agrees
not to plead or claim before any authority or court, including the courts of its state of
incorporation or formation, that any judgment issued by the courts referred to in clause (a) above
is contrary to public policy (except, with respect to any Japanese Guarantor, to the extent that
the terms of such judgment issued by the courts referred to in clause (a) above and its formation
process are deemed, in accordance with the provisions of Article 118 of the Code of Civil
Procedures (Law No. 109 of 1996), as contrary to the public order or good morals of Japan).




          (c) EACH FOREIGN SUBSIDIARY GUARANTOR AND EACH SECURED CREDITOR (BY ITS ACCEPTANCE OF THE
BENEFITS OF THIS ACKNOWLEDGMENT AND CONSENT) HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS ACKNOWLEDGMENT
AND AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.




          (d) NOTWITHSTANDING ANYTHING IN THIS ACKNOWLEDGEMENT AND CONSENT TO THE CONTRARY AND WITH
RESPECT ONLY TO THE COLOMBIAN GUARANTORS, IN THE EVENT THE ADMINISTRATIVE AGENT OR ANY OF THE
SECURED CREDITORS ELECTS TO ENFORCE THIS ACKNOWLEDGEMENT AGAINST ANY COLOMBIAN GUARANTOR IN A
COLOMBIAN COURT AS PROVIDED BELOW, THE GUARANTEE OF THE COLOMBIAN GUARANTORS PURSUANT TO THIS
ACKNOWLEDGEMENT AND CONSENT AND THE RIGHTS OF THE SECURED CREDITORS AS AGAINST THE COLOMBIAN
GUARANTORS SHALL BE (AND SHALL BE DEEMED TO BE) GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF COLOMBIA. Any legal action or proceeding with respect to a Colombian Guarantor in
connection with this Acknowledgement and Consent may be brought in the competent courts of
Colombia.







 









 








Exhibit B-3

Page 7




          (e) NOTWITHSTANDING ANYTHING IN THIS ACKNOWLEDGEMENT AND CONSENT TO THE CONTRARY AND WITH
RESPECT ONLY TO THE ECUADORIAN GUARANTORS, IN THE EVENT THE ADMINISTRATIVE AGENT OR ANY OF THE
SECURED CREDITORS ELECTS TO ENFORCE THIS ACKNOWLEDGEMENT AGAINST ANY ECUADORIAN GUARANTOR IN AN
ECUADORIAN COURT AS PROVIDED BELOW, THE GUARANTEE OF THE ECUADORIAN GUARANTORS PURSUANT TO THIS
ACKNOWLEDGEMENT AND CONSENT AND THE RIGHTS OF THE SECURED CREDITORS AS AGAINST THE ECUADORIAN
GUARANTORS SHALL BE (AND SHALL BE DEEMED TO BE) GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF ECUCADOR. Any legal action or proceeding with respect to An Ecuadorian Guarantor in
connection with this Acknowledgement and Consent may be brought in the competent courts of Ecuador.




          2. This Acknowledgment and Consent 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 U.S. Borrower and
the Administrative Agent.




          IN WITNESS WHEREOF, the parties hereto (other than with respect to the Guarantors incorporated
under the laws of the Hong Kong Special Administrative Region of the People’s Republic of China
(the “HK Guarantors”)) have caused this Acknowledgement and Consent to be executed and delivered by
their duly authorized officers as of the date first above written.




          IN WITNESS WHEREOF, this Acknowledgement and Consent has been signed, sealed and delivered by
the duly authorized officers of the HK Guarantors as of the date first above written.




[FOREIGN SUBSIDIARY GUARANTOR]









 









 








EXHIBIT G




FORM OF ASSIGNMENT

AND

ASSUMPTION AGREEMENT1




          This Assignment and Assumption Agreement (this “Assignment”), is dated as of the
Effective Date set forth below and is entered into by and between [the] [each] Assignor identified
in item [1][2] below ([the] [each, an] “Assignor”) and [the] [each] Assignee identified in
item 2 below ([the] [each, an] “Assignee”). [It is understood and agreed that the rights
and obligations of such [Assignees][and Assignors] hereunder are several and not joint.]
Capitalized terms used herein but not defined herein shall have the meanings given to them in the
Credit Agreement identified below (as amended, restated, supplemented and/or otherwise modified
from time to time, the “Credit Agreement”). The Standard Terms and Conditions for
Assignment and Assumption Agreement set forth in Annex 1 hereto (the “Standard Terms and
Conditions”) are hereby agreed to and incorporated herein by reference and made a part of this
Assignment as if set forth herein in full.




          For an agreed consideration, [the] [each] Assignor hereby irrevocably sells and assigns to
[the] [each] Assignee, and [the] [each] Assignee hereby irrevocably purchases and assumes from
[the][each] Assignor, subject to and in accordance with the Standard Terms and Conditions and the
Credit Agreement; as of the Effective Date inserted by the Administrative Agent as contemplated
below, the interest in and to all of [the] [each] Assignor’s rights and obligations under the
Credit Agreement and any other documents or instruments delivered pursuant thereto that represents
the amount and percentage interest identified below of all of the [respective] Assignor’s
outstanding rights and obligations under the respective Tranches identified below (including, to
the extent included in any such Tranches, Letters of Credit, Bank Guarantees and Credit-Linked
Deposits) ([the] [each, an] “Assigned Interest”). [Each] [Such] sale and assignment is
without recourse to [the) [any] Assignor and, except as expressly provided in this Assignment,
without representation or warranty by [the] [any] Assignor.




	 	 	 	 	 
	[l.

	 	Assignor:
	 	                                        
	 
	 	 	 	 
	2.

	 	Assignee:
	 	                                        ]2
	 
	 	 	 	 
	[1][3].

	 	Credit Agreement:
	 	Credit Agreement, dated as of March
28, 2003, amended and restated as of
April 18, 2005, further amended and
restated as of April 12, 2006, further
amended as of March 18, 2009, further
amended as of October 26, 2009 and
further amended as of March 2, 2010
among Dole Food Company, Inc., a
Delaware corporation, Solvest, Ltd., a
company








 




			
	1	 	This Form of Assignment and Assumption
Agreement should be used by Lenders for an assignment to a single Assignee or
to funds managed by the same or related investment managers.
	 
	2	 	If the form is used for a single Assignor
and Assignee, items 1 and 2 should list the Assignor and the Assignee,
respectively. In the case of an assignment to funds managed by the same or
related investment managers, or an assignment by multiple Assignors, the
Assignors and the Assignee(s) should be listed in the table under bracketed
item 2 below.




 









 










Exhibit J

Page 2




	 	 	 	 	 
	 

	 	 	 	organized under the laws of Bermuda, the lenders from time
to time party thereto, the other parties thereto and
Deutsche Bank AG New York Branch, as Administrative Agent
and Deposit Bank
	 
	 	 	 	 
	[2.

	 	Assigned Interest:3	 	 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate Amount of	 	Amount of
	 	 	 	 	 	 	Commitment/	 	Commitment/
	 	 	 	 	 	 	Loans/Credit-Linked Deposits	 	Loans/Credit-Linked Deposits
	 	 	 	 	 	 	(separately broken	 	(separately broken
	 	 	 	 	 	 	out, where	 	out, where
	 	 	 	 	 	 	relevant) under	 	relevant) under
	 	 	 	 	Tranche4	 	Relevant Tranche	 	Relevant Tranche
	Assignor	 	Assignee	 	Assigned	 	for all Lenders	 	Assigned
	[Name of
	 	[Name of	 	 	 	 	 	 
	Assignor]
	 	Assignee]
	 	 	 	                    
	 	                    
	 	 	 	 	 	 	 	 	 
	[Name of
	 	[Name of	 	 	 	 	 	 
	Assignor]
	 	Assignee]
	 	 	 	                    
	 	                    








 




			
	3	 	Insert this chart if this Form of
Assignment and Assumption Agreement is being used for assignments to funds
managed by the same or related investment managers or for an assignment by
multiple Assignors. Insert additional rows as needed.
	 
	4	 	For complex multi-tranche assignments a
separate chart for each tranche should be used for ease of reference.




 









 










Exhibit J

Page 3



[4. Assigned Interest:5




	 	 	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	 	Amount of	 
	 	 	Commitment/Loans/Credit-Linked	 	 	Commitment//Credit-Linked	 
	 	 	Deposits	 	 	Deposits	 
	 	 	(separately broken out, where	 	 	(separately broken out, where	 
	 	 	relevant) under Relevant Tranche	 	 	relevant) under Relevant	 
	Tranche Assigned	 	for all Lenders	 	 	Tranche Assigned	 
	[Insert Relevant Tranche]
	 	$	                    	 	 	$	                    	 
	 
	 	 	 	 	 	 	 	 
	[Insert Relevant Tranche]
	 	$	                    	 	 	$	                    	 





Effective Date:                                         , ___, ___.




	 	 	 	 	 	 	 
	Assignor[s] Information

	 	 	 	Assignee[s] Information	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Payment Instructions:

	 	 	 	Payment Instructions:	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Reference:           
                          
	 	 	 	Reference:           
                          
	 
	 	 	 	 	 	 
	Notice Instructions:

	 	 	 	Notice Instructions:	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Reference:           
                          
	 	 	 	Reference:           
                          








 




			
	5	 	Insert this chart if this Form of
Assignment and Assumption Agreement is being used by a single Assignor for an
assignment to a single Assignee.




 









 










Exhibit J

Page 5



he terms set forth in this Assignment are hereby agreed to:




	 	 	 	 	 	 	 	 	 	 	 
	ASSIGNOR	 	ASSIGNEE
	[NAME OF ASSIGNOR]	 	[NAME OF ASSIGNEE]6
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	 	 	Name:	 	 
	 

	 	Title:
	 	 	 	 	 	Title:	 	 








 




			
	6	 	Add additional signature blocks, as
needed, if this Form of Assignment and Assumption Agreement is being used by
funds managed by the same or related investment managers.




 









 










Exhibit J

Page 5




[Consented to and]7 Accepted:

DEUTSCHE BANK AG NEW YORK BRANCH,

as Administrative Agent




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	[DOLE FOOD COMPANY, INC.
	 
	 	 	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:]8	 	 








 




			
	7	 	Insert only if assignment is being made
to an Eligible Transferee pursuant to Section 13.04(b)(y) of the Credit
Agreement.
	 
	8	 	Insert only if (i) no Event of Default or
Default is then in existence, (ii) the assignment is being made to an Eligible
Transferee pursuant to 13.04(b)(y) of the Credit Agreement and (iii) assignment
is not being made prior to the Syndication Date and as part of the primary
syndication of the Loans and Commitments.




 









 










ANNEX I

TO

EXHIBIT G




DOLE FOOD COMPANY, INC.

SOLVEST, LTD.

CREDIT AGREEMENT

STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT

AND ASSUMPTION AGREEMENT




          1. Representations and Warranties.




          1.1. Assignor. [The] [Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the] [its] Assigned Interest, (ii) [the] [its] Assigned Interest is
free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and to
consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to
(i) any statements, warranties or representations made in or in connection with any Credit
Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Credit Document or any other instrument or document delivered
pursuant thereto (other than this Assignment) or any collateral thereunder, (iii) the financial
condition of the Borrowers, any of their Subsidiaries or affiliates or any other Person obligated
in respect of any Credit Document or (iv) the performance or observance by the Borrowers, any of
their Subsidiaries or affiliates or any other Person of any of their respective obligations under
any Credit Document.




          1.2. Assignee. [The] [Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
to consummate the transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) confirms that it is (A) a Lender, (B) a parent company and/or an affiliate of [the]
[an] Assignor which is at least 50% owned by [the] [an] Assignor or its parent company, (C) a fund
that invests in bank loans and is managed by the same investment advisor as a Lender or by an
affiliate of such investment advisor or (D) an Eligible Transferee under Section 13.04(b) of the
Credit Agreement; (iii) from and after the Effective Date, it shall be bound by the provisions of
the Credit Agreement and, to the extent of [the] [its] Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section 8.01 thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and to purchase [the] [its] Assigned
Interest on the basis of which it has made such analysis and decision and (v) if it is organized
under the laws of a jurisdiction outside the United States, it has attached to this Assignment any
tax documentation required to be delivered by it pursuant to the terms of the Credit Agreement,
duly completed and executed by it; (b) agrees that it will, independently and without reliance upon
the Administrative Agent, [the] [any] Assignor, or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (c) appoints and authorizes each of the
Administrative Agent, the Syndication Agent, the Co-Documentation Agents and the Collateral Agent
to take such action as agent on its behalf and to exercise such powers under the Credit Agreement
and the other Credit Documents as are delegated to or otherwise conferred upon the Administrative
Agent, the Syndication Agent, the Co-Documentation Agents or the Collateral Agent, as the case may
be, by the terms thereof, together with such powers as are






 









 








Annex I

to Exhibit G

Page 2



reasonably incidental thereto; and (d) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Documents are required to be
performed by it as a Lender.




          2. Payment. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of [the] [each] Assigned Interest (including payments of principal,
interest, fees, commissions and other amounts) to [the][each] Assignor for amounts which have
accrued to but excluding the Effective Date and to [the] [each] Assignee for amounts which have
accrued from and after the Effective Date.




          3. Effect of Assignment. Upon the delivery of a fully executed original hereof to the
Administrative Agent, as of the Effective Date, (i) [the] [each] Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment, have the rights and obligations of
a Lender thereunder and under the other Credit Documents and (ii) [the] [each] Assignor shall, to
the extent provided in this Assignment, relinquish its rights and be released from its obligations
under the Credit Agreement and the other Credit Documents.




          4. General Provisions. This Assignment shall be binding upon, and inure to the benefit
of, the parties hereto and their respective successors and assigns. This Assignment may be
executed in any number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment by telecopy shall be effective as
delivery of a manually executed counterpart of the Assignment. THIS ASSIGNMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING,
WITHOUT LIMITATION, SECTION 5.1401 OF THE GENERAL OBLIGATIONS LAW).




*       *       *






 









 








EXHIBIT H-1




FORM OF INTERCOMPANY SUBORDINATION

ACKNOWLEDGMENT




[                    ]




To the Administrative Agent and each of

the Banks party to the Credit Agreement

referred to below



Ladies and Gentlemen:




          Reference is made to that certain Credit Agreement, dated as of March 28, 2003, amended and
restated as of April 18, 2005, further amended and restated as of April 12, 2006, further amended
as of March 18, 2009, further amended as of October 26, 2009 and further amended as of March 2,
2010 (as so amended and restated and as the same may be further amended, restated, modified and/or
supplemented from time to time, the “Credit Agreement”), among the U.S. Borrower, Solvest,
Ltd., the lenders from time to time party thereto (including the Lender), the other parties thereto
and Deutsche Bank AG New York Branch, as Administrative Agent and Deposit Bank, and is entitled to
the benefits thereof and of the other Credit Documents (as defined in the Credit Agreement).
Unless otherwise indicated herein, capitalized terms used but not defined herein shall have the
respective meanings set forth in the Credit Agreement.




          I. Intercompany Subordination Acknowledgement.




          A. Each of the Parties hereby acknowledges (x) the Credit Agreement and each other Credit
Documents and the transactions contemplated thereby (including, without limitation, the extensions
of credit contemplated therein) and (y) copies (or originals) of the Credit Documents and all
opinions, instruments, certificates and all other documents delivered in connection therewith, as
in effect on the Amendment No. 3 Effective Date, have been furnished or otherwise been provided (or
made available) to a senior financial officer of such Foreign Subsidiary Guarantor.




          B. Each of the undersigned Parties hereby acknowledges and agrees, and represents and
warrants, that on and after the occurrence of, and after giving effect to, the Amendment No. 3
Effective Date (i) it constitutes a Party (as defined in the Intercompany Subordination Agreement)
which is a party to the Intercompany Subordination Agreement, (ii) the Intercompany Subordination
Agreement shall remain in full force and effect with respect to such Party and (iii) the Credit
Agreement and the Obligations under the Credit Agreement shall constitute the “Credit Agreement”
and the “Credit Document Obligations,” respectively, in each case, under and as defined in, the
Intercompany Subordination Agreement and shall continue to be entitled to the benefits of the
Intercompany Subordination Agreement. Each of the undersigned Assignors hereby makes each of the
representations and warranties contained in the Intercompany Subordination Agreement on the
Restatement Effective Date, both before and after giving effect to this Acknowledgement and
Amendment.




          II. Miscellaneous.




          (a) THIS ACKNOWLEDGEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK. Any legal action or pro-






 









 








Annex I

to Exhibit G

Page 2



ceeding with respect to this Acknowledgment and Amendment may be brought exclusively 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
Acknowledgment and Amendment, each Party hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts.
Each Party hereby irrevocably designates, appoints and empowers Corporation Service Company, with
offices on the date hereof at 80 State Street, Albany, NY 12207, as its designee, appointee and
agent to receive, accept and acknowledge for and on its behalf, and in respect of its property,
service of any and all legal process, summons, notices and documents which may be served in any
such action or proceeding. If for any reason such designee, appointee and agent shall cease to be
available to act as such, each Party agrees to designate a new designee, appointee and agent in New
York City on the terms and for the purposes of this provision reasonably satisfactory to the
Administrative Agent under the Credit Agreement. Each Party hereby further irrevocably waives any
claim that any such courts lack jurisdiction over such Party, and agrees not to plead or claim, in
any legal action or proceeding with respect to this Acknowledgment and Amendment brought in any of
the aforesaid courts, that any such court lacks jurisdiction over such Party. Each Party 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 Party at its address set forth opposite its signature below, such service to
become effective 30 days after such mailing. Each Party 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 that such service of process was in any way invalid or
ineffective. Nothing herein shall affect the right of any Secured Creditor to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise proceed against any
Party in any other jurisdiction.




          (b) Each Party 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 Acknowledgment and Amendment 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, or that
the choice of law provisions are invalid or unenforceable and agrees not to plead or claim before
any authority or court, including the courts of its state of incorporation or formation, that any
judgment issued by the courts referred to in clause (a) above is contrary to public policy (except,
with respect to any Japanese Guarantor, to the extent that the terms of such judgment issued by the
courts referred to in clause (a) above and its formation process are deemed, in accordance with the
provisions of Article 118 of the Code of Civil Procedures (Law No. 109 of 1996), as contrary to the
public order or good morals of Japan).




          (c) EACH PARTY AND EACH SECURED CREDITOR (BY ITS ACCEPTANCE OF THE BENEFITS OF THIS
ACKNOWLEDGMENT) HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS ACKNOWLEDGMENT AND AMENDMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.




          (d) NOTWITHSTANDING ANYTHING IN THIS ACKNOWLEDGEMENT TO THE CONTRARY AND WITH RESPECT ONLY TO
THE COLOMBIAN GUARANTORS, IN THE EVENT THE ADMINISTRATIVE AGENT OR ANY OF THE SECURED CREDITORS
ELECTS TO ENFORCE THIS ACKNOWLEDGEMENT AGAINST ANY COLOMBIAN GUARANTOR IN A COLOMBIAN COURT AS
PROVIDED BELOW, THE GUARANTEE OF THE COLOMBIAN






 









 








Annex I

to Exhibit G

Page 3



GUARANTORS PURSUANT TO THIS ACKNOWLEDGEMENT AND THE RIGHTS OF THE SECURED CREDITORS AS AGAINST
THE COLOMBIAN GUARANTORS SHALL BE (AND SHALL BE DEEMED TO BE) GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF COLOMBIA. Any legal action or proceeding with respect to a Colombian
Guarantor in connection with this Acknowledgement may be brought in the competent courts of
Colombia.




          (e) NOTWITHSTANDING ANYTHING IN THIS ACKNOWLEDGEMENT TO THE CONTRARY AND WITH RESPECT ONLY TO
THE ECUADORIAN GUARANTORS, IN THE EVENT THE ADMINISTRATIVE AGENT OR ANY OF THE SECURED CREDITORS
ELECTS TO ENFORCE THIS ACKNOWLEDGEMENT AGAINST ANY ECUADORIAN GUARANTOR IN AN ECUADORIAN COURT AS
PROVIDED BELOW, THE GUARANTEE OF THE ECUADORIAN GUARANTORS PURSUANT TO THIS ACKNOWLEDGEMENT AND THE
RIGHTS OF THE SECURED CREDITORS AS AGAINST THE ECUADORIAN GUARANTORS SHALL BE (AND SHALL BE DEEMED
TO BE) GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF ECUCADOR. Any legal action or
proceeding with respect to An Ecuadorian Guarantor in connection with this Acknowledgement and
Consent may be brought in the competent courts of Ecuador.




          2. This Acknowledgment 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 U.S. Borrower and the
Administrative Agent.




          IN WITNESS WHEREOF, the parties hereto (other than with respect to the Guarantors incorporated
under the laws of the Hong Kong Special Administrative Region of the People’s Republic of China
(the “HK Guarantors”)) have caused this Intercompany Subordination Acknowledgement to be executed
and delivered by their duly authorized officers as of the date first above written.




          IN WITNESS WHEREOF, this Intercompany Subordination Acknowledgement has been signed, sealed
and delivered by the duly authorized officers of the HK Guarantors as of the date first above
written.









 









 








EXHIBIT I




FORM OF INCREMENTAL TERM LOAN COMMITMENT AGREEMENT




[Name(s) of Lender(s)]




[Dole Food Company, Inc.][Solvest, Ltd.]

One Dole Drive

Westlake Village, CA 91362




               Re:       Incremental Term Loan Commitments


Ladies and Gentlemen:




          Reference is hereby made to the Credit Agreement, dated as of March 28, 2003, amended and
restated as of April 18, 2005, further amended and restated as of April 12, 2006, further amended
as of March 18, 2009, further amended as of October 26, 2009 and further amended as of March 2,
2010, among Dole Food Company, Inc. (the “U.S. Borrower”), Solvest, Ltd. (the “Bermuda
Borrower” and, together with the U.S. Borrower, the “Borrowers”), the lenders from time
to time party thereto, the other parties thereto and Deutsche Bank AG New York, as Administrative
Agent and Deposit Bank (as so amended and restated and as the same may be further amended,
restated, modified and/or supplemented from time to time, the “Credit Agreement”). Unless
otherwise defined herein, capitalized terms used herein shall have the respective meanings set
forth in the Credit Agreement.




          Each Lender (each an “Incremental Term Loan Lender”) party to this letter agreement
(this “Agreement”) hereby severally agrees to provide the Incremental Term Loan Commitment
set forth opposite its name on Annex I attached hereto (for each such Incremental Term Loan Lender,
its “Incremental Term Loan Commitment”). Each Incremental Term Loan Commitment provided
pursuant to this Agreement shall be subject to all of the terms and conditions set forth in the
Credit Agreement, including, without limitation, Sections 1.01(c) and 1.15 thereof.




          Each Incremental Term Loan Lender, [the U.S. Borrower] [the Bermuda Borrower](the
"Incremental Term Loan Borrower”) and the Administrative Agent acknowledge and agree that
the Incremental Term Loan Commitments provided pursuant to this Agreement shall constitute
Incremental Term Loan Commitments of the respective Tranche specified in Annex I attached hereto
and, upon the incurrence of Incremental Term Loans pursuant to such Incremental Term Loan
Commitments, shall constitute Incremental Term Loans under such specified Tranche for all purposes
of the Credit Agreement and the other applicable Credit Documents. Each Incremental Term Loan
Lender, the Incremental Term Loan Borrower and the Administrative Agent further agree that, with
respect to the Incremental Term Loan Commitment provided by each Incremental Term Loan Lender
pursuant to this Agreement, such Incremental Term Loan Lender shall receive from the Incremental
Term Loan Borrower such upfront fees, unutilized commitment fees and/or other fees, if any, as may
be separately agreed to in writing with the Incremental Term Loan Borrower and acknowledged by the
Administrative Agent, all of which fees shall be due and payable to such Incremental Term Loan
Lender on the terms and conditions set forth in each such separate agreement.




          Furthermore, each of the parties to this Agreement hereby agree to the terms and conditions
set forth on Annex I hereto in respect of each Incremental Term Loan Commitment provided pursuant
to this Agreement.







 









 








          Each Incremental Term Loan Lender party to this Agreement, to the extent not already a party
to the Credit Agreement as a Lender thereunder, (i) confirms that it is an Eligible Transferee,
(ii) confirms that it has received a copy of the Credit Agreement and the other Credit Documents,
together with copies of the financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
this Agreement and to become a Lender under the Credit Agreement, (iii) agrees that it will,
independently and without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement and the other Credit
Documents, (iv) appoints and authorizes the Administrative Agent and the Collateral Agent to take
such action as agent on its behalf and to exercise such powers under the Credit Agreement and the
other Credit Documents as are delegated to the Administrative Agent and the Collateral Agent, as
the case may be, by the terms thereof, together with such powers as are reasonably incidental
thereto, [and] (iv) agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement and the other Credit Documents are required
to be performed by it as a Lender[, and (v) in the case of each Incremental Term Loan Lender
organized under the laws of a jurisdiction outside the United States, attaches the forms and/or
Certificates referred to in Section 4.04(b) of the Credit Agreement, certifying as to its
entitlement as of the date hereof to a complete exemption from United States withholding taxes with
respect to all payments to be made to it by the Incremental Term Loan Borrower under the Credit
Agreement and the other Credit Documents.] 1




          Upon the date of (i) the execution of a counterpart of this Agreement by each Incremental Term
Loan Lender, the Administrative Agent, the Incremental Term Loan Borrower and [each Guarantor
(other than the Bermuda Borrower)]2 [each U.S. Subsidiary Guarantor],3 (ii)
the delivery to the Administrative Agent of a fully executed counterpart (including by way of
facsimile) hereof, (iii) the payment of any fees then due and payable in connection herewith and
(iv) the satisfaction of any other conditions precedent set forth in Section 10 of Annex I hereto
(such date, the “Agreement Effective Date”), each Incremental Term Loan Lender party hereto
(i) shall be obligated to make the Incremental Term Loans provided to be made by it as provided in
this Agreement on the terms, and subject to the conditions, set forth in the Credit Agreement and
in this Agreement and (ii) to the extent provided in this Agreement, shall have the rights and
obligations of a Lender thereunder and under the other applicable Credit Documents.




          The Incremental Term Loan Borrower acknowledges and agrees that (i) it shall be liable for all
Obligations with respect to the Incremental Term Loan Commitments provided hereby, including,
without limitation, all Incremental Term Loans made pursuant thereto, and (ii) all such Obligations
(including all such Incremental Term Loans) shall be entitled to the benefits of the respective
Security Documents and Guaranties as, and to the extent, provided in the Credit Agreement and in
such other Credit Documents.






 




			
	1	 	Insert if the U.S. Borrower is the
Incremental Term Loan Borrower.
	 
	2	 	Insert if the Bermuda Borrower is the
Incremental Term Loan Borrower.
	 
	3	 	Insert if the U.S. Borrower is the
Incremental Term Loan Borrower.




-2-









 










          [Each Guarantor (other than the Bermuda Borrower)]4 [Each U.S. Subsidiary
Guarantor]5 acknowledges and agrees that all Obligations with respect to the
Incremental Term Loan Commitments provided hereby and all Incremental Term Loans made pursuant
thereto shall (i) be fully guaranteed pursuant to the respective Guaranties as, and to the extent,
provided therein and in the Credit Agreement and (ii) be entitled to the benefits of the respective
Security Documents as, and to the extent, provided therein and in the Credit Agreement.




          Attached hereto as Annex II are true and correct copies of officer’s certificates, board of
director resolutions and good standing certificates of the Credit Parties required to be delivered
pursuant to clause (y) of the definition of “Incremental Loan Commitment Requirements” appearing in
Section 11 of the Credit Agreement.




          Attached hereto as Annex III [is an opinion] [are opinions] of [insert name or names of
counsel, including in-house counsel, who will be delivering opinions], counsel to the respective
Credit Parties, delivered as required pursuant to clause (x) of the definition of “Incremental Loan
Commitment Requirements” appearing in Section 11 of the Credit Agreement.




          Attached hereto as Annex IV is the officer’s certificate required to be delivered pursuant to
clause (u) of the definition of “Incremental Loan Commitment Requirements” appearing in Section 11
of the Credit Agreement certifying that the conditions set forth in clauses (s) and (t) of the
definition of “Incremental Loan Commitment Requirements” appearing in Section 11 of the Credit
Agreement have been satisfied (together with calculations demonstrating same (where applicable) in
reasonable detail).




          [The Obligations to be incurred pursuant to the Incremental Term Loan Commitments provided
hereunder, and the Guaranteed Obligations (as defined in the U.S. Subsidiaries Guaranty) of the
U.S. Subsidiary Guarantors, are in accordance with, will not violate the provisions of, and will
constitute “Senior Debt” and “Designated Senior Debt” (in the case of any Permitted Senior Notes
Document and any Permitted Refinancing Senior Notes Document which provides for subordination of
the U.S. Borrower’s obligations thereunder) or “Guarantor Senior Debt” and “Designated Guarantor
Senior Debt,” as the case may be, for the purpose of the Existing 2013 Senior Notes Indenture, the
Existing 2014 Senior Notes Indenture, the Existing 2016 Senior Notes Indenture and (after the
execution and delivery thereof) each agreement governing Qualified Indebtedness, as applicable, and
each agreement governing Permitted Indebtedness which refinances any of the foregoing, as
applicable.]6




          You may accept this Agreement by signing the enclosed copies in the space provided below,
and returning one copy of same to us before the close of business on                     , ___. If you do
not so accept this Agreement by such time, our Incremental Term Loan Commitments set forth in this
Agreement shall be deemed canceled.






 




			
	4	 	Insert if the Bermuda Borrower is the
Incremental Term Loan Borrower.
	 
	5	 	Insert if the U.S. Borrower is the
Incremental Term Loan Borrower.
	 
	6	 	Insert if the U.S. Borrower is the
Incremental Term Loan Borrower.




-3-









 










          After the execution and delivery to the Administrative Agent of a fully executed copy of this
Agreement (including by way of counterparts and by facsimile transmission) by the parties hereto,
this Agreement may only be changed, modified or varied by written instrument in accordance with the
requirements for the modification of Credit Documents pursuant to Section 13.12 of the Credit
Agreement.




          In the event of any conflict between the terms of this Agreement and those of the Credit
Agreement, the terms of the Credit Agreement shall control.




*****









-4-









 








          THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.




	 	 	 	 	 
	 	Very truly yours,




[NAME OF EACH INCREMENTAL TERM LOAN LENDER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Agreed and Accepted

this ___day of                     :




	 	 	 	 	 
	 	[NAME OF INCREMENTAL TERM LOAN 

    BORROWER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH, as

    Administrative Agent

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



S-1









 






	 	 	 	 	 


[Each Guarantor (other than the Bermuda Borrower)]1 [Each U.S. Subsidiary
Guarantor]2 acknowledges and agrees to each the foregoing provisions of this
Incremental Term Loan Commitment Agreement and to the incurrence of the Incremental Term Loans to
be made pursuant thereto.




	 	 	 	 	 
	 	[EACH OTHER GUARANTOR], as a Guarantor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	1	 	Insert if the Bermuda Borrower is the
Incremental Term Loan Borrower.
	 
	2	 	Insert if the US. Borrower is the
Incremental Term Loan Borrower.




S-2









 










ANNEX I




TERMS AND CONDITIONS FOR

INCREMENTAL TERM LOAN COMMITMENT AGREEMENT




Dated as of                                         , ____





	1.	 	Name of Incremental Term Loan Borrower:
	 
	2.	 	Incremental Term Loan Commitment Amounts (as of the Agreement Effective Date):





	 	 	 
	Names of Incremental Term Loan Lenders
	 	Amount of Incremental Term Loan

Commitment
	 
	 	 






	 
	 
	 
	 
	 
	 	 	Total:1     
	 
	3.	 	Designation of Tranche of Incremental Term Loan Commitments (and Incremental Term Loans to
be funded thereunder):2
	 
	4.	 	Indicate whether the Incremental Term Loan Commitments to be provided hereunder are to be
single draw commitments or multiple draw commitments and the date or dates by which such
commitments must be utilized by:3
	 
	5.	 	Incremental Term Loan Maturity Date:4







 




			
	1	 	The aggregate amount of each Tranche of
Incremental Term Loan Commitments must be at least $25,000,000.
	 
	2	 	Designate the respective Tranche for such
Incremental Term Loan Commitments or indicate that it is to be added to (and
form part of) an existing Tranche of Term Loans, provided in the case that the
Incremental Term Loan Commitments to be provided pursuant to this Agreement are
to be added to (and form a part of) an existing Tranche of Term Loans, the
Incremental Term Loan Borrower for such Incremental Term Loan Commitments shall
be the same as for such existing Tranche of Term Loans.
	 
	3	 	Date cannot be later than the then latest
Maturity Date.
	 
	4	 	Insert Maturity Date for the Incremental
Term Loans to be incurred pursuant to the Incremental Term Loan Commitments
provided hereunder, provided that (i) such Incremental Term Loan Ma-





Footnote continued on next page. 


Annex I-1









 











	7.	 	Dates for, and amounts of, Incremental Term Loan Scheduled Repayments:5
	 
	8.	 	Applicable Margins:6
	 
	9.	 	The proceeds of the Incremental Term Loans to be provided hereunder are to be used
for:7
	 
	10.	 	Other Conditions Precedent:8
	 
	11.	 	Notice Office:9







 




			
	Footnote continued from previous page. 
	 
	 	 	
turity Date
shall be no earlier than the then latest Maturity Date and (ii) in the event
the Incremental Term Loan Commitments to be provided pursuant to this Agreement
are to be added to (and form a part of) an existing Tranche of Term Loans, the
Incremental Term Loan Maturity Date for the Incremental Term Loans to be
incurred pursuant to such Incremental Term Loan Commitments shall be the same
Maturity Date as for such existing Tranche of Term Loans.

	 
	5	 	Set forth the dates for Incremental Term
Loan Scheduled Repayments and the principal amount (expressed as a numerical
amount or as a percentage of the aggregate amount of Incremental Term Loans to
be incurred pursuant to the Incremental Term Loan Commitments provided
hereunder), provided that (i) to the extent the Incremental Term Loan
Commitments being provided hereunder constitute a new Tranche of Term Loans,
the Weighted Average Life to Maturity of such new Tranche shall be no less than
the Weighted Average Life to Maturity as then in effect for the Tranche of the
outstanding Loans with the longest Weighted Average Life to Maturity and (ii)
in the event the Incremental Term Loan Commitments to be provided hereunder are
to be added to (and form a part of) an existing Tranche of Term Loans, (x) the
Incremental Term Loan Scheduled Repayments for such Incremental Term Loans
shall be the same (on a proportionate basis) as is theretofore applicable to
the existing Tranche of Term Loans to which such new Incremental Term Loans are
being added and (y) such Incremental Term Loans shall have the same Incremental
Term Loan Scheduled Repayment Dates.
	 
	6	 	Insert the Applicable Margins that shall
apply to the Incremental Term Loans being provided hereunder, provided
in the event the Incremental Term Loan Commitments to be provided hereunder are
to be made under (and form a part of) an existing Tranche of Term Loans, the
Incremental Term Loans to be incurred pursuant to such Incremental Term Loan
Commitments shall have the same Applicable Margins applicable to such existing
Tranche of Tenn Loans.
	 
	7	 	Designate the specific use of the
proceeds of the applicable Incremental Term Loans as provided in Section
7.05(a) of the Credit Agreement.
	 
	8	 	Insert any additional conditions
precedent which may be required to be satisfied prior to the Amendment
Effective Date.




Annex I-2









 











	12.	 	Payment Office:10
	 
	13.	 	Minimum Borrowing Amount:11
	 
	[14. 	 	[Insert name of respective Incremental Term Loan Borrower] agrees to pay compensation as,
and to the extent, provided in the last paragraph of Section 1.15(c) of the Credit
Agreement.]12







 




			
	Footnote continued from previous page. 
	 
	9	 	The Notice Office for Incremental Term
Loans incurred by the Incremental Term Loan Borrower shall be as set forth in
the definition of “Notice Office” in Section 11 of the Credit Agreement.
	 
	10	 	The Payment Office for Incremental Term
Loans incurred by the Incremental Term Loan Borrower shall be as set forth in
the definition of “Payment Office” in Section 11 of the Credit Agreement.
	 
	11	 	The Administrative Agent shall designate
the Minimum Borrowing Amount for the respective Tranche of Incremental Term
Loans, pursuant to the definition of “Minimum Borrowing Amount” in Section 11
of the Credit Agreement.
	 
	12	 	Insert if the respective Incremental
Term Loan Commitments are to be added to (and form a part of) an existing
Tranche of Term Loans and to the extent any related breakage type compensation
is agreed to be paid by the respective Incremental Term Loan Borrower.






Annex I-3